1 Wednesday, 19 May 2004
2 [Appeals Proceedings]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE SCHOMBURG: Good morning to everybody. May I ask,
7 Madam Registrar, would you please 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: Than you. I take it the appearances are the
11 same as yesterday. This is a fact.
12 Then the question goes to Mr. Kordic and Mr. Cerkez. Can you
13 follow our proceedings in a language you understand?
14 THE APPELLANT KORDIC: [Interpretation] Good morning, Your Honour.
15 Thank you for your kindness. Yes, I can follow today's proceedings in my
17 JUDGE SCHOMBURG: Thank you. Please be seated.
18 THE APPELLANT KORDIC: [Interpretation] Good morning, Your Honour.
19 I can understand everything that is being said, and I can follow the
21 JUDGE SCHOMBURG: Thank you. Then let us continue without further
22 ado. Let's be flexible with the time. You know the time allocated to the
23 parties. Maybe not all the time will be needed in all aspects by the
24 parties, so therefore let's be flexible. It should already now be said
25 that the break -- that the lunch break today will take only one hour in
1 order to conclude as scheduled. But first may I ask the parties in this
2 case, Cerkez Defence and Prosecution, what about the still-open question
3 of agreed facts in relation to the family situation based on the motion
4 filed the 4th of May by the Cerkez Defence?
5 MR. FARRELL: Good morning, Your Honours. If I may speak both on
6 behalf of myself and Mr. Kovacic, we spoke this morning and went through
7 the document. There are a few -- a few matters which remain somewhat
8 contentious, and we've agreed to speak at the break again and we'll inform
9 you, if you don't mind, this morning, but we'll try our best to find a way
10 to get without having the Court's intervention.
11 JUDGE SCHOMBURG: Okay. Then I think it would be the best that I
12 give immediately the floor to the Prosecution and the maximum time
13 remaining would be one hour, but I take it maybe you don't need all the
14 time. Please.
15 MR. FARRELL: Thank you, Your Honour. I will begin by attempting
16 to answer the questions of His Honour Judge Guney and the questions by the
17 Presiding Judge, His Honour Judge Schomburg's questions. Then I will make
18 a few comments related to the submissions from yesterday, and then
19 Ms. Jarvis will speak on the last aspects of our response to Mr. Cerkez's
21 First of all, regarding the scope of the criminal plan,
22 Your Honour. The geographic scope, the Trial Chamber in the judgement has
23 adopted, which reflects the indictment, two levels of joint criminal
24 enterprise or common plan. The first is that charged by -- excuse me,
25 charged against the appellant Kordic, which is as the Court says at
1 paragraph 827, Central Bosnia and beyond, meaning that it's the larger
2 scope. It then finds that Kordic was involved in the larger scope at
3 paragraph 829.
4 In a subset of that persecutory campaign was carried out in the
5 Vitez municipality, and that subset was the one that was for which
6 Mr. Cerkez was found guilty, and the Trial Chamber confined his
7 responsibility to the villages identified in the Vitez municipality. I'll
8 make submissions in the Prosecution appeal that its confinement of
9 Mr. Cerkez's responsibilities to only those attacks that it felt that the
10 Viteska Brigade was directly involved in was in error.
11 The crimes for which -- which was the subject matter of the
12 criminal agreement. First of all, the Court has found that the overall
13 objective was to subjugate the Bosnian Muslim population and that it was
14 carried out or through the use of violent measures. The agreed upon
15 measures to achieve this purpose - this is at paragraph 127 - was the
16 attacking of towns and villages with the associated destruction and
17 plunder, killing, injuring, and detaining Bosnian Muslims. I'll come to
18 the question of what's outside the common plan in a minute, but that was
19 found to be inside the common plan.
20 And these objectives or the crimes agreed to carried out were
21 exactly the same for the larger JC. The evidence disclosed, of course,
22 that these acts were carried out in towns and villages and were replicated
23 over and over again in a consistent pattern and were identical in each
24 village. The carrying out of the plan on the evidence may have differed
25 slightly and with different degrees of intensity, but the common
1 denominator was the agreed upon attack of the village, the killing of
2 injuring of those that were there, the destruction, the plunder, and then
3 the detaining of the Bosnian Muslims, all taking place for the ultimate
5 The next question related to Mr. Cerkez's knowledge of the plan
6 itself. There are two aspects to this in the Prosecution's submission.
7 The first is that his knowledge can be inferred as a general matter from
8 the evidence at large, and that relates to the ongoing plan and all the
9 activities that took place in the Vitez municipality. He knew that there
10 was a plan to target the Muslims certainly in the areas of Vitez,
11 Stari Vitez, and Donja Veceriska because he ordered his troops to go there
12 and commit those crimes. He knew that the plan was greater than just
13 those in the area for which the Trial Chamber found him guilty. It was
14 clear that it was a coordinated military campaign, was carried out in
15 conjunction with the Viteska Brigade, and that the acts for which the
16 campaign were implemented were carried out by all the units in the Vitez
18 I will make submissions on the evidence of the knowledge including
19 things such as the small area in which it took place, the coordination
20 that was required of the military units, the fact that, for example, the
21 attack on Bosnia was the result of the efforts by the Vitez Brigade for
22 blocking the Busovaca Brigade for blocking, and the artillery support from
23 Hrasno hill from the Busovaca Brigade. This wasn't a individual act,
24 uncoordinated and unknown to the other units who were standing by and
25 acting in cooperation.
1 There's also the evidence, which I won't go into great detail
2 regarding the knowledge, but certainly the reports back to Blaskic relate
3 to the whole area. It's inconceivable that the commander for the Vitez
4 municipality, responsible for the whole area, responding back on Ahmici,
5 Kruscica, Sivrino Selo, Vitez, Stari Vitez does not know what the specific
6 plan is and the orders for one of those areas in his responsibility which
7 is he to report back to. How is he reporting back to General Blaskic and
8 how is General Blaskic asking him for reports on Vitez if he has no
9 knowledge of what is actually happening there? His troops arrive there at
10 the end of the day and carry out arrest operations. That's set out in the
11 war diary, I think it's 1757. The arrest operations are in Ahmici by his
12 troops. He doesn't arrive there with no knowledge of what's going on and
13 what the purpose he's doing there for the arrest operation.
14 He's reporting on our forces and he's reporting on them being 70
15 per cent done in Ahmici and Donja Veceriska. The only inference is that
16 the 70 per cent relates to the activities in Ahmici, and the 70 per cent
17 is not military operations.
18 Secondly, in addition to the evidence, the broader evidence of --
19 which supports Mr. Cerkez's clear knowledge of the overall plan in the
20 Vitez municipality is the evidence as the result of the meeting on April
21 15th. In the Prosecution's submission, even without the specific
22 information, it would have been clear that the Trial Chamber would have
23 been able to infer from the overall circumstances that he had knowledge;
24 that was the campaign, that's what his troops were doing, that's the
25 information that he was required to pass on. In addition we do have the
1 information that on the 15th there was the plan, and the formulation of
2 the plan, in terms of the units, and we have the information that the
3 units that were there were Kraljevic, which were the Vitezovi; Cerkez,
4 who is the Vitez Brigade; Ljubicic, who is the military police; and AT
5 testifies to Grubesic being there who's the Busovaca Brigade. Those are
6 all the units that took place in the Vitez municipality or the main ones,
7 and when you look at that meeting you have Ljubicic who is the military
8 police. Would General Blaskic give one set of orders to all the members
9 who were at the military meeting, and then pull Ljubicic aside later and
10 give him a second set of orders? If you accept the testimony of
11 Witness AT, he says that Blaskic's orders are... This is not a separate
12 activity devised by Ljubicic at a later time; it wouldn't make any sense
13 that he calls his units together - the four main units that are engaged in
14 the attack in the Vitez municipality, all of them reporting through the
15 Vitez Brigade at least in terms of locations - and not tell the commander
16 of the zone of responsibility what the orders are for one of the units?
17 We also have information from AT that right beside Pirici, I don't know
18 the size but it's literally -- couldn't be less than a kilometre is the
19 units from the Vitez Brigade. And what's their responsibility? Their
20 responsibility is to block UNPROFOR. Why would the Vitez Brigade be given
21 a specific task to block an international organisation if it wasn't
22 because they knew specifically what the operation was for? It's
23 inconceivable that a military commander that gives the order that Blaskic
24 gave would not tell the rest of the troops coordinating in a military
25 operation what the order was.
1 There's also information that Grubesic was there, at least in
2 terms of AT's evidence. You will recall that the beginning of the Ahmici
3 attack started with the shelling from Hrasno hill. That's the
4 Busovaca Brigade. That's Grubesic, and he was at the meeting. You will
5 recall that AT testified that UNPROFOR was also blocked from Kaonik, from
6 the other side. He was blocked on the one side by the Vitez Brigade, and
7 it was to be blocked on the other side by the Busovaca Brigade. That's
8 Grubesic. Why would there be a order to block UNPROFOR from both sides
9 from two different units if not for the fact that there was an illegal
10 activity and illegal order going on. It's no coincidence they met on that
11 day and all the units were given a coordinated attack and the knowledge
12 can clearly be inferred as to what those orders were.
13 Regarding the scope of the plan including the other crimes, first
14 of all, the inhumane treatment under Count 31 which relates to the
15 conditions of detention, if by inhumane treatment this refers to the
16 conditions of detention, then no, the Trial Chamber did not find that this
17 was part of the joint criminal enterprise. Mr. Cerkez was found liable on
18 a separate basis in that regard.
19 If the inhumane treatment is considered to be the trench-digging
20 under Count 31, both being under Count 31, once again the Court finds that
21 this falls outside of the common criminal plan.
22 Regarding the hostage-taking, it's the same and the liability
23 under count 33 is specifically for Mr. Cerkez.
24 Regarding the deprivation of liberty. The Court actually found
25 that the detention itself, the act of unlawful detention was a part of the
1 common criminal plan.
2 Regarding the mode of liability, the mode of liability for all
3 those acts which fell within the common criminal plan which I've indicated
4 is the unlawful attacks and the resultant destruction and activities,
5 illegal activities, including detention, the mode of liability must be JC
6 1. In the Prosecution's submission, the Court didn't find it as aiding
7 and abetting, or at least their conclusions were whether that's your legal
8 characterisation but they did not find it aiding and abetting because the
9 evidence discloses that Cerkez had much more than mere knowledge; he
10 actually shared the intent for the JC.
11 It's the Prosecution's submission that the JC could have been
12 applied to various acts for example, the inhumane conditions. They could
13 have been seen as foreseeable as a result of the detention, but it doesn't
14 appear that the Trial Chamber found that.
15 Lastly, His Honour Judge Guney asked about the liability for
16 ordering. In paragraph 831, the Court concludes its findings in relation
17 to the persecutory campaign and holds Mr. Cerkez liable as the commander
18 of the Viteska Brigade as he participated in the attacks. They note that
19 it's the high point of the campaign of persecution, and then he played his
20 part in the campaign - this was his contribution - by commanding troops
21 involved in some of the incidents. As such, he was a co-perpetrator.
22 The word "commanding troops" has to be read as ordering. There is
23 no other way that he would be involved in commanding troops. I note that
24 the Court then concludes he's a co-perpetrator. For the joint criminal
25 enterprise, it must be the co-perpetration with the joint criminal
1 enterprise and that his role was to command the troops which, Judge Guney,
2 I would submit, has to be ordering.
3 Those are the answers to the specific questions. If there's any
4 further questions, I'll be happy to answer them or I'll move on to the
5 final issues.
6 JUDGE SCHOMBURG: Thank you for these precise answers.
7 MR. FARRELL: Thank you. If I may just add two more comments
8 regarding the submissions by my learned friend, and then I'll pass the
9 counsel table over to Ms. Jarvis.
10 There has been, and Mr. Kovacic has been kind enough to give me a
11 report regarding Mr. Cerkez while he's been in custody, and I understand
12 if it's correct that Mr. Cerkez -- counsel for Mr. Cerkez will seek to
13 file it, and I note it's before you.
14 The Prosecution's position - though I take no issue with the fact
15 that he may wish to file it and you can obviously have it before you - I
16 would note that in your contemplation of the information in it, it relates
17 to his detention from 1997 until the present. The Appeals Chamber in the
18 recent decision on May the 7th, 2004, has concluded that evidence of
19 post-sentence behaviour is irrelevant as to whether the Trial Chamber
20 exercised -- erred in the exercise of its discretion, and the
21 Appeals Chamber concluded that considering that the appellant's
22 post-sentence behaviour could be neither relevant to any issue before the
23 Trial Chamber, nor capable of being considered by it and therefore cannot
24 show that the Trial Chamber committed any error in the exercise of its
25 discretion, it therefore dismissed the Defence motion to have the
1 post-sentence behaviour admitted.
2 JUDGE SCHOMBURG: There was a question by Judge Weinberg de Roca,
4 JUDGE WEINBERG DE ROCA: Thank you. Mr. Farrell, about the
5 meeting on April 15, has this meeting been an issue in other -- in any
6 other of the related cases or has it only come up in this present case?
7 MR. FARRELL: There -- there has been information, but it was in
8 relation to closed session in another case and therefore I'm not at
9 liberty to set out that material. There has been material that has
10 been -- there has been material that has been filed in this case under the
11 Rule 115 motion which this Court has excluded and found that the
12 additional evidence could not affect the verdict. That evidence was filed
13 in this case, but it was filed confidentially.
14 JUDGE WEINBERG DE ROCA: Thanks.
15 JUDGE SCHOMBURG: May I just add one point. You correctly quoted
16 from a recent judgement. However, we are in a slight dilemma. It's
17 settled jurisprudence by the Appeals Chamber that for the purposes of the
18 assessment, what about rehabilitation? It's necessary to know: Are
19 they -- are there still links? What is the recent behaviour in the
20 Detention Unit and so on and so forth. It's not a question whether the
21 Trial Chamber made a mistake or not, but when, as it is true in this case,
22 all parties are seeking for a new sentence, then this is no doubt a
23 decisive factor, the question of rehabilitation and so forth. No doubt we
24 need the necessary supporting information on this basis.
25 MR. FARRELL: If I may just make a submission in that regard. If
1 the Court upholds the sentence and if it finds that the Trial Chamber did
2 not err, the Appeals Chamber in the Celebici case has held that the
3 post-sentencing conduct is irrelevant. The issue before you is whether
4 the Trial Chamber erred. He doesn't get a second chance to have a
5 reduction of sentence because he's been of good character since then.
6 That's not a view in my respectful submission the Trial Chamber's
7 judgement. The fact that he has asked for you to consider whether his
8 sentence was appropriate doesn't put you in the position of a trial de
9 novo; it puts you in a position, as I'm sure you're fully aware, of
10 deciding whether the Trial Chamber was in error. If on the other hand
11 this Chamber has to resentence him, in other words they have decided that
12 they're going to change the nature of liability or decide themselves to
13 resentence him unlike in the Celebici case where it was sent back to the
14 Trial Chamber to resentence, then this Court may seek that information,
15 but it in my respectful submission, the conduct for which he should be
16 sentenced and the role of the sentence is to place him where he -- in the
17 appropriate range of sentence for his crimes.
18 The relevance of post-sentence behaviour, in my submission, and
19 this was the submission we made in the Celebici appeal, this goes to
20 issues related to the execution of the sentence, the administration
21 execution of a sentence, that if he has done well in prison he will get
22 certain benefits in prison. If his conduct -- post conduct is positive,
23 that will assist in determining whether he's released at two-thirds. That
24 isn't a consideration on determining whether his sentence was appropriate
25 for the crimes he committed. Those were the submissions we made in the
1 Celebici case, and that's the basis in my understanding of the ultimate
2 decision in both Celebici and in the Kvocka case.
3 Thank you. Those are essentially the matters that I wanted to
4 bring to your attention. Thank you. I'll now, with your permission, ask
5 Ms. Jarvis to address the last aspect of the Prosecution's response.
6 JUDGE SCHOMBURG: Please, Ms. Jarvis.
7 MR. FARRELL: Thank you.
8 MS. JARVIS: Thank you, Mr. President, Your Honours. To begin, in
9 response to Your Honour Judge Schomburg's question regarding the findings
10 of Mr. Cerkez's discriminatory intent in the judgement: The findings are
11 set out in paragraphs 830 and 831. In a nutshell, the Trial Chamber
12 inferred his intent from his participation in the persecution campaign.
13 Is that permissible? Yes, it is. The jurisprudence of this Tribunal is
14 clear. Where all of the evidence reveals that this is the only reasonable
15 inference, then the requisite mens rea can be inferred in this way.
16 Indeed, in the vast majority in criminal cases, in the absence of some
17 sort of express declaration by the accused, inference is the only way that
18 intent can be proved.
19 Paragraphs 830 and 831 are not expansive. But then again, they
20 are conclusory paragraphs preceded by 800-odd other paragraphs in the
21 judgement detailing the voluminous evidence that enabled the Trial Chamber
22 to arrive at that point.
23 Certainly the Appeals Chamber has demonstrated on two recent
24 occasions, the Vasiljevic case and the Krstic case, a concern about the
25 evidentiary basis that will be sufficient to enable intent to be inferred
1 from the accused's knowing participation in a crime.
2 About the dividing line between aiding and abetting on the one
3 hand and participation in a joint criminal enterprise on the other. Why
4 is the case of Mr. Cerkez different to those two cases? Well, in
5 Vasiljevic, the Appeals Chamber was not satisfied that the accused knew
6 about the criminal purpose to murder the Muslim men on the bank of the
7 Drina River until a short time prior to the acts taking place, and his
8 conduct thereafter in the Appeals Chamber's view did not unequivocally
9 demonstrate that he had adopted that shared intent. He was, if you like,
10 in the dark about the purpose of the other participants in the enterprise
11 until right at the last minute. Not so Mr. Cerkez. He had his eyes wide
12 open. He knew full well that the objective of the attacks in which he was
13 engaged and in which he engaged his forces was to target the Muslim
14 population for the very reason of their membership in that group, and he
15 went ahead and ordered them to carry out the crimes anyway.
16 The Krstic case. Again, the Appeals Chamber expressing great
17 caution about the circumstances under which knowing participation can lead
18 to inference of intent. Although Krstic knew about the genocidal
19 enterprise of the VRS Main Staff in Srebrenica, the Appeals Chamber
20 considered that his acts of contribution were not unequivocal. As
21 commander of the Drina Corps, he permitted the use of corps assets to
22 assist in the killings, but he did not deploy the troops to actually
23 commit any of the crimes. Not so Mr. Cerkez. It was his troops, under
24 his command, in his zone of responsibility, on the ground in
25 Donja Veceriska, Vitez, and Stari Vitez who were deliberately targeting
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the Muslim population with discriminatory acts. He didn't send them in
2 with instructions to carefully target only military objectives. He sent
3 them in with express orders to target Muslim civilians and Muslim houses.
4 Croat civilians and Croat houses were excluded. There is nothing
5 unequivocal about that.
6 JUDGE SCHOMBURG: I'm sorry, if I interrupt, because this is a
7 core issue of the case. You just said he sent them in with express orders
8 to target Muslim civilians and Muslim houses. Where would you find this
9 in the judgement or in the evidence before us?
10 MS. JARVIS: Your Honour, that must be the only inference
11 available on the evidence. The Trial Chamber accepted that there was a
12 coordinated plan of attack, and this goes to what my colleague,
13 Mr. Farrell, has just outlined for you about the nature of the criminal
14 plan. It comes from the fact that these corps crimes of the joint
15 criminal enterprise were replicated over and over again in all of the
16 relevant -- all of the villages, including in the Vitez municipality,
17 including in those villages where Mr. Cerkez's Vitez Brigade was
19 Your Honours, the Trial Chamber noted, at paragraph 831, that the
20 crimes in which the Vitez Brigade were involved represented the high point
21 of the persecution campaign. It's the Prosecution's submission that it is
22 no coincidence that the very worst atrocities happened in the zone of
23 possibility of Mr. Cerkez, no coincidence that he was the brigade
24 commander reporting back to Mr. Blaskic -- to Colonel Blaskic about the
25 process or the progress of the campaign in Vitez, as demonstrated by the
1 material set out in paragraphs 688 to 702 of the judgement. No
2 coincidence that he was reporting on some of the villages where some of
3 worst atrocities to took place, paragraph 689(d). Ahmici, 70 per cent
4 done, Donja Veceriska, 70 per cent done.
5 No, Mr. Cerkez knew full well that he was engaging himself and his
6 brigade in a campaign and knew full well that he was reporting back to
7 Colonel Blaskic about the progress of ethnic cleansing in the Vitez
8 municipality. He had his eyes wide open, but he went ahead and did it
10 I emphasise, Your Honours, that Mr. Cerkez was not acting in a
11 vacuum. Every Bosnian Muslim and every Bosnian Croat living in the Lasva
12 Valley throughout 1992 and 1993 knew the score. They knew about the
13 increasing tensions between the two communities, knew the HVO takeovers of
14 the municipalities throughout 1992 onwards were happening, knew about the
15 increasing acts of violence and intimidation against the Bosnian Muslim
17 Mr. Cerkez did not just step into Vitez municipality on 15 April
18 1993. He had first been the assistant commander of the Vitez staff, then
19 assistant commander of the Stjepan Tomasevic Brigade from October 1992
20 until February 1993. That's at paragraph 594 of the judgement. And then
21 from March 1993, he was the commander of the Vitez Brigade.
22 He was there at the Ahmici barricade in October 1992, and more
23 than one witness at trial attested to the fact that Mr. Cerkez made grave
24 threats about burning the municipality down if the barricade was not
25 removed. That's at paragraphs 532 to 533, and the Prosecution final trial
1 brief at paragraph 93. And as relations deteriorated between the Bosnian
2 Croats and the Bosnian Muslims in January 1993, Mr. Cerkez threatened to
3 shell Vitez if the ABiH did not accept the HVO demands. That's at
4 paragraph 594.
5 On the evening of 15 April, Mr. Cerkez attended the joint
6 commission in incidents -- sorry, the joint commission in incidents and
7 gave assurances leading to the belief that there would be no HVO attack.
8 This is the evidence of Witness G, referred to in paragraph 609 of the
10 The duplicity of this was not lost on the Trial Chamber at
11 paragraph 610 where they noted that on that very afternoon, Cerkez had
12 attended the meeting of the military commanders, Pasko Ljubicic,
13 Anto Sliskovic, Darko Kraljevic, and Grubesic among them at which the
14 attack in the municipality of Vitez for the next morning was planned.
15 And consider, Your Honours, the role that Mr. Cerkez's brigade was
16 given in respect of Ahmici, as my colleague Mr. Farrell has emphasised, to
17 prevent UNPROFOR from getting into Ahmici. He knew very well that the
18 orders were for ethnic cleansing. My apologies if I'm going too fast for
19 the interpreters.
20 The Vitez Brigade was in Ahmici later on the 16th of April, and
21 participated in the arrests of the Muslim civilians there. Mr. Cerkez was
22 reporting on the progress of the campaign in Ahmici. It was obvious to
23 everyone who saw the aftermath of Ahmici that a massacre had happened
24 there. Did Mr. Cerkez express any horror or outrage? Did he demand an
25 explanation? Did he refuse to be associated any further with the HVO? He
1 didn't do any of these things. Instead, in May 1993, we see Mr. Cerkez
2 irritated again with the ABiH and issuing a threat to burn down Kruscica.
3 That's at judgement paragraph 694.
4 Consider also the evidence of Mr. Breljas set out in
5 paragraph 807(i) of the judgement about the coordinated waves of plunder
6 that the Vitez Brigade and the Vitezovi engaged in. Mr. Cerkez was the
7 commander of the Vitez Brigade. What did he think was going on?
8 Add to this to Mr. Cerkez's role in the detention and
9 hostage-taking crimes. The fact that Mr. Cerkez, as commander of the
10 Vitez Brigade, did nothing in the face of this mistreatment of the Muslim
11 detainees is relevant in assessing his overall discriminatory intent at
12 the time.
13 What's more, there is of course evidence of Mr. Cerkez's direct
14 personal contribution towards the mistreatment meted out to the detainees,
15 and I refer to paragraph 784(b) of the judgement. And further in
16 paragraph 801, the Trial Chamber accepted the evidence of Witness AT that
17 Mr. Cerkez, as commander of the Vitez Brigade had sent Muslim prisoners
18 for trench digging. (redacted)
23 So, Your Honours, no, Mr. Cerkez was not acting in a vacuum. He
24 knew full well that a persecution campaign was being waged against the
25 Bosnian Muslim population of Vitez, and he went ahead anyway and deployed
1 his troops to carry out the very acts designated to violate the
2 fundamental rights of the Muslims for no reason other than their
3 membership in that group.
4 Your Honour, if I could also just return briefly to the question
5 you asked about where in the judgement would I find support for my
6 assertion that Mr. Cerkez was directly deploying troops for the criminal
7 acts on the ground. Again, in paragraph 830, the Trial Chamber's finding
8 is that he engaged his units in the persecution. Your Honour, I submit
9 there is no other reasonable interpretation of that than that he was, with
10 full knowledge, deploying his troops for the very purpose of the core
11 crimes in the joint criminal enterprise.
12 Your Honours, if I might just raise one procedural matter. I
13 referred to Witness AT's testimony regarding -- and it is a matter that
14 would need to be redacted from the transcript at page 17, line 14.
15 JUDGE SCHOMBURG: Madam Registrar, could you please do the
16 necessary, thank you.
17 MS. JARVIS: Sorry, it would be the reference to the entire
18 passage from that point onward. Thank you. I do apologise for that
19 oversight on my part.
20 Your Honours, just a final point. It doesn't matter whether
21 Mr. Cerkez was motivated to act in this way because of personal -- because
22 of personal ethnic hatred, because he derived personal satisfaction from
23 the campaign, or because he wanted to keep his job. As the Krnojelac
24 Appeals Chamber noted at paragraph 100: "Shared criminal intent does not
25 require the co-perpetrator's personal satisfaction or enthusiasm or his
1 personal initiative in contributing to the joint criminal enterprise." It
2 cannot be that different standards of intent apply to members of organised
3 military units. It cannot be that a individual who carries out acts with
4 the object of violating the fundamental rights of a person for the sole
5 reason of their membership in a political or religious group is excused
6 because he wears a uniform and because he operates within a chain of
8 Your Honours, would any of us be entertaining any doubt about
9 Mr. Cerkez's shared intent if he was wearing civilian clothes at the time
10 and had organised and instructed for a group of people to go in and commit
11 these crimes? His command position is not a impediment to finding shared
12 intent. In fact, it just makes his actions even more grave. As a
13 commander, he was entrusted with a special responsibility as guardian of
14 the standards of human decency during armed conflict, and he used that
15 special position for precisely the opposite purpose.
16 Your Honours, that concludes the remarks I wanted to make on the
17 mens rea for persecution. I do have a couple of very brief comments on
18 the international armed conflict issue.
19 Actually, two points arising out of His Honour Judge Pocar's
20 questions to my learned friend yesterday, and that is in regard to the
21 overall control test.
22 Your Honours, the reason why the Tadic Appeals Chamber found that
23 the Nicaragua effective control test was not the correct one, well, the
24 Appeals Chamber examined the state of the judicial practice and state
25 practice and concluded that for the purposes of determining when to
1 attribute the acts of a military or paramilitary group to a state, the
2 relevant test in customary international law was indeed the overall
3 control test. The Nicaragua effective control test, the Appeals Chamber
4 concluded, was the correct test for other categories such as individuals
5 or groups that were not organised, but not for the specific case of
6 military and paramilitary groups. So the overall control test, the
7 Appeals Chamber concluded, is customary international law and always was
8 at the relevant time when these acts took place, and that's why the
9 Appeals Chamber in Tadic accepted that the accused Tadic could be
10 convicted on the basis of this test for acts that happened in 1992.
11 Secondly, the relationship between this Tribunal and the
12 International Court of Justice. This point has been previously dealt with
13 by the Celebici Appeals Chamber at paragraph 24. The Appeals Chamber
14 specifically rejected arguments that the Tribunal was bound to follow the
15 International Court of Justice. There is no hierarchical relationship
16 between the two bodies and no reason why this Tribunal was not entitled to
17 come to a different conclusion about the relevant law.
18 The nullum crimen sine lege argument, again already considered and
19 disposed of by the Appeals Chamber in Aleksovski, paragraphs 126 to 127.
20 The Appeals Chamber stated that the nullum crimen argument in that case,
21 which is identical in all material respects to the ones that Your Honours
22 have heard in this appeal, reflected a misunderstanding of the principle.
23 There is nothing in the principle that prevents the interpretation of the
24 law through decisions of a court. The very same assessment applies to the
25 arguments raised by Mr. Cerkez.
1 Mr. Cerkez has made very few submissions on the voluminous
2 evidence relied on by the Trial Chamber to conclude that the armed
3 conflict was international. In particular, he has not commented on the
4 expansive evidentiary basis on which the Trial Chamber relied to conclude
5 that Croatia exercised effective -- sorry, overall control, and so I won't
6 make any specific submissions on that, but I am available to assist
7 Your Honours if you have any specific points you with like me to address.
8 Thank you. That concludes the Prosecution's submissions. Thank
10 JUDGE SCHOMBURG: Thank you. May I then call Mr. Cerkez's Defence
11 for reply.
12 MR. KOVACIC: Yes, Your Honour. Thank you.
13 I will first briefly, and very briefly, reply on yesterday's and
14 today's argument of the Prosecution, and then my counsel will wrap up
15 regarding joint criminal enterprise or better to say argument of the
16 Prosecution which now changes the approach taken in trial. But I will
17 continue in Croatian language. It is much easier for me, with your
19 [Interpretation] We heard yesterday a comment to the effect that
20 my submissions on the time elapsed from the invitation to Cerkez to come
21 to command at the time when he was going to his wedding was a instance of
22 my testifying on his behalf. I only referred to two pieces of evidence in
23 the case, and I was only analysing, analysing the existing evidence. I
24 therefore don't believe that I was testifying, because the first piece of
25 evidence shows the time for which the wedding was scheduled, and the
1 second piece of evidence, the 610, shows for when the meeting was
2 scheduled at the headquarters.
3 These exhibits are D94/2, Stipo Ceko testimony, page 2349; the
4 affidavit of Ruza Ceko; the testimony of Drago Pranjes, transcript page
5 26127; and an indirect piece of evidence, I know it is not a exhibit in
6 this case, but is -- it's a witness C1 in Kupreskic, page 1136. These are
7 pieces of evidence mutually supplement each other and show without a doubt
8 where Cerkez was at the time, but I do abandon this.
9 JUDGE SCHOMBURG: I'm sorry to interrupt, but I think it's quite
10 clear for you that the testimony in another case is not part of the
11 evidence before us and therefore it can't be part of our assessment.
12 Thank you.
13 MR. KOVACIC: [Interpretation] Absolutely true, Your Honour. I
14 reckon that there is always a hypothetical chance that the Appeals Chamber
15 can, proprio motu, take something into consideration, but I know that it
16 is not in evidence.
17 However, the other evidence, Stipo Ceko, Ruza Ceko, and the
18 supporting documents are doubtlessly documents that show that the wedding
19 was scheduled for the time indicated, two months in advance, and therefore
20 Cerkez was not able to go that day to the meeting where allegedly the plan
21 was made.
22 I have to come back to that because the Prosecution has said a lot
23 about this, viewing it from various aspects, and the crucial part of the
24 plan is this meeting. Cerkez, and I have to point this out clearly as we
25 have repeated many times during the trial, had awareness of the military
1 activities in the Lasva Valley and in Vitez on the 16th of April. What
2 knowledge he had, he acquired during the day, and he knew about his part
3 of the task of which he learned early in the morning, and he received part
4 of those orders verbally during the night. Cerkez did not know nor is
5 there any satisfactory evidence that he did, that any crimes were planned
6 or that they were committed. There is no evidence to indicate such a
8 However, I have to mention one other thing. According to the
9 judgement, it is indubitable that Cerkez was acquitted of this. He was
10 acquitted of Ahmici. It is another matter that the Trial Chamber found a
11 link, namely that his units were in certain locations, which is a
12 suggestion we deny because we believe there is no satisfactory evidence of
13 that. He was not in this location himself, and we submit that no crimes
14 were committed there.
15 I will now come back to the judgement, paragraph 689. I have
16 referred to this yesterday, and the Prosecution mentioned it in their
17 response. In this part of the judgement, we find subparagraphs (a) to
18 (f), and these form the basis for the later conclusion of the Trial
20 I mentioned yesterday, subparagraphs (a) to (c) of this paragraph.
21 The first piece of evidence under (a) was not introduced; it is not part
22 of the evidence. The document under (c) is one whose authenticity we
23 challenged and the Prosecution was unable to authenticate it, and we would
24 like to remind you that this is the only case where we questioned the
25 authenticity of an exhibit.
1 In our appellant's brief, we deal with this matter very
2 extensively, pages 53 to 59. And we did so in the reply to the response
3 by the Prosecution, pages 30 to 38, and page 49.
4 As for document under 689(b), I would like to refer the
5 Appeals Chamber to the finding in the judgement in paragraph 698. This
6 covers a large part of the story, including the value of all these
7 quotations cited under (d), (e), and (f) of the same paragraph. What is
8 this about? The Trial Chamber obviously accepts the Prosecution evidence,
9 the testimony of Josip Zuljevic, correction, Defence arguments, Defence
10 evidence, the testimony of Josip Zuljevic which was quoted yesterday and
11 obviously the Trial Chamber accepted this. In cases where the
12 Trial Chamber did not accept the Defence arguments, it said so explicitly.
13 Josip Zuljevic described in detail the events, and this testimony
14 was completely accepted by the Trial Chamber, and this holds the key to
15 all these notes in 69 -- 689, (a) to (f) on which the Prosecution bids
16 their argument of his knowledge.
17 On the 16th, in the morning chaos reigned. Commander Blaskic
18 demanded from Cerkez, his subordinate, and commander of the only unit
19 which was local to gather all the information available at the time.
20 Zuljevic said explicitly, "We were told to call around, neighbours,
21 friends, duty officers in other units and to gather information in every
22 way possible, and we filed this information with Blaskic." That is clear,
23 and that is confirmed by this paragraph. The Trial Chamber understood
24 this fully, and that is the reason why the judgement does not link Cerkez
25 with Ahmici.
1 From this evidence in paragraph 689, it would seem that Cerkez was
2 in Ahmici. However, the Trial Chamber understood the value and the
3 meaning of this evidence, because you can see that the Trial Chamber does
4 not go any further from the finding it explicitly states. So practically
5 paragraph 689, because of the two documents I referred to yesterday and
6 because of the value of all this other information indicated and the value
7 is clear from the testimony of Josip Zuljevic, is not incriminating for
8 Cerkez, because through the testimony of Zuljevic, from paragraph 689, the
9 value of all this information is clarified. All this information comes
10 from the ground.
11 The village of Donja Veceriska has been 70 per cent done. This is
12 the best information that he was able to gather at the moment somewhere.
13 Or from the other page. No. That is Blaskic speaking. But let me move
14 on. In any case, I believe it was useful to spend some time on this,
15 because this responds to at least half of all the submissions of the
17 The Prosecution further claims that Cerkez was seen on the 15th of
18 April in the evening at the hotel. That was said by Witness AT. We do
19 not question that. We have always admitted that Cerkez came to the hotel,
20 but after the military meeting. AT was staying at the hotel, so he was
21 able to see him, yes. We agree. However, the fact that Witness AT saw
22 him is absolutely not sufficient in the legal sense, in the sense of
23 interpreting the evidence, to claim that he had come for a meeting. The
24 hotel was a point of regular assembly for the troops. It is very far from
25 proving that he attended the meeting, and even less for proving what was
1 discussed at the meeting.
2 Witness AT says himself a bit later that the first orders
3 involving the killing of men were given at the meeting in Nadioci, not
4 earlier at the headquarters.
5 At one point - I don't know if this was by mistake - my learned
6 friend from the Prosecution said they agreed that Cerkez was in Kruscica.
7 Kruscica is a place to the south where he was indeed assigned. And on
8 that day, there was no direct clash between two armies, there was no
9 damage or casualties among the civilians. So if they agree we were in
10 Kruscica and in view of the orders given at the brigade headquarters, then
11 it is obvious that Cerkez could not have been elsewhere in the first days
12 of the conflict.
13 They pointed out at one point paragraph 688, which gives us only a
14 definition of a topic dealt with in the judgement. That is not a finding.
15 Another reference was to paragraph 595 of the judgement. That is the
16 Trial Chamber's finding that the Vitez Brigade was established on the 24th
17 March 1993 and that Cerkez was its commander. Yes, we agree. We admitted
18 that in the pre-trial brief. But the emphasis is on the fact that the
19 brigade was set up only in end March. And in view of the conditions, the
20 living conditions and the general circumstances which tell us a lot about
21 the situation as a whole, it is not to be expected that from the end of
22 March until the 16th of April the brigade was able to organise itself
24 We heard another reference about battalions of this brigade being
25 deployed across villages. That was in 2653 -- that was in Exhibit Z653.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 At least ten witnesses who lived and worked there, including
2 Witness Bertovic, who was a excellent and an impressive witness, told us
3 what this document meant. This document was only for information
4 purposes, Commander Bertovic's own assessment on the potential for
5 mobilisation from a certain village to provide replacement on the front
6 line facing the JNA, the front line he held. Those were not battalion in
7 existence. We spent a awful lot of time in trial proving that, and the
8 Trial Chamber understood this completely. You cannot find any erroneous
9 findings concerning this point. The Prosecution is again, however, coming
10 back to this.
11 This document absolutely does not have the significance given to
12 it by the Prosecution. We need to read witness statements which clearly
13 indicate what this document means, and the Trial Chamber believes them.
14 We can see that from their findings.
15 Furthermore, at one point, the Prosecution refers us to paragraph
16 596 of the judgement. That again is a claim that the brigade had several
17 battalions. I will not elaborate this whole philosophy again. It is
18 terribly long and full of evidence. I refer you to paragraph 26(a), page
19 58. In that paragraph, 596, reference is made to Colonel Duncan.
20 However, Duncan says that he assumed there were several brigades, and I
21 remind you Duncan came to Vitez in May when the brigade indeed had more
22 than one battalion. However, here in the testimony that is referred to,
23 Duncan said this was an assumption. We agree, but for the month of May,
24 not April. However, the month of April is the only subject of our
25 discussion here.
1 And secondly, all the charges referred to April. So we can only
2 discuss this within the given time frame.
3 As for the level of organisation of the brigade, I refer you to
4 our appellant's brief, paragraph 26, page 58, which gives us a full
5 analysis and refers you to witnesses Badrov, Sajevic, Ceko and Bertovic.
6 Paragraph 696 contains a finding that our learned friends are
7 using as a argument. Yes, we agree with everything stated there.
8 Witness Buffini was quoted here discussing the work of the
9 so-called Busovaca Joint Commission whose job was to maintain the truce.
10 And that commission was in operation only from the 19th or the 21st of
11 April. Yes, Cerkez took part in the work of that commission. That is the
12 only thing this shows. Cerkez participated in this commission as
13 representative of the HVO in Vitez because he was appointed by Blaskic.
14 We can see this from other documents in greater detail.
15 Franjo Nakic, who was Chief of Staff with Blaskic, and Mario
16 Cerkez were on this commission representing the HVO, depending on the
17 subject discussed. And there is nothing more to it than that. However,
18 the Prosecution is seeking to tell us otherwise.
19 Our colleague Mr. Farrell mentioned also paragraphs -- paragraph
20 807, subparagraphs (i) to (ii) referring to count 41, the common plan. I
21 believe this is absolutely inappropriate in my opinion. The charges of
22 Cerkez, destruction and plunder, are only limited to April 1993. These
23 two paragraphs refer, however, to incidents in October - Cerkez was never
24 charged with this, nor did he defend himself - and incidents in January.
25 I see absolutely no relevance of this finding to the culpability of my
1 client under count 41.
2 Paragraph 644, Breljas. Breljas is referred to in several places,
3 and he was mentioned again today. This is a matter that needs more time
4 to elaborate, time that I don't have, but I will recall before this
5 Appeals Chamber that we analysed Breljas in great detail and pointed out
6 discrepancies in his testimony, pages 59, 60, 87, in our appellant's
7 brief, plus page 81, footnote 217, and page 87 in footnote 226 in Cerkez's
8 appellant's brief. You will see by referring to these points that this is
9 an absolutely irrelevant argument.
10 Paragraph 643 contains a reference to Colonel Watters, the very
11 beginning of the conflict. It says that Colonel Watters intervened with
12 the commander of the brigade in Vitez but also the commander of the
13 Muslims. What was not said yesterday is this, and I'm quoting the words
14 of the witness, Colonel Watters: "Both sides said the other side attacked
16 There is no detrimental finding for Cerkez here. Of course this
17 is how the war started, but there was no attack on the civilians by the
18 HVO. So there is no such finding. This is just a introduction to a new
20 However, having mentioned this witness who was a very valuable one
21 and gave us many curious facts that were assessed as valuable by the
22 Trial Chamber, I would like to refer you to Exhibit D57/1, that is the
23 witness's letter to his father, and I quote his letter in my appellant's
24 brief on page 104, which deals with sentencing. I believe this is the
25 most accurate and from a humane or human point of view, the most beautiful
1 thing ever mentioned in this case.
2 The Prosecution mentioned also Krunoslav Bonic. We have heard so
3 much about him during trial and wasted so much time because this was a
4 claim simply thrown into the courtroom, and the Trial Chamber never
5 mentions him. What is at issue is a set of documents based on which the
6 Prosecution wanted to prove that a group of people who were mentioned as
7 members of the brigade at some time were indeed members of the brigade.
8 We heard a lot of testimony about this and much time was wasted on this.
9 First of all, the Trial Chamber did not accept this logic and did
10 not make any findings based on it. And second, in our response to the
11 appellant's brief of the Prosecution, we deal with it on pages 55 to 73.
12 Today my learned friend Jarvis quoted several findings of the
13 Court speaking about count 41. That was mentioned by Mr. Farrell
14 yesterday as well. However, these are the final findings which
15 have -- which are not based on the factual analysis.
16 Today we've heard about the plan again. I believe there is no
17 need for me to go back to that issue. It's been debated long enough. Now
18 just a few words about the blockade of the bridge.
19 JUDGE SCHOMBURG: Let me just tell you, you told us beforehand
20 that you want to give the floor also to your colleague in order to wrap
21 up, and I want to emphasise your time is elapsing in about five to ten
23 MR. KOVACIC: [Interpretation] I will take up just two or three
24 minutes and then I will leave the rest of the allotted time to my
25 colleague, with your leave.
1 Let me just say a few words about the blockade of the bridge based
2 on which Cerkez concluded that -- the Prosecution concluded that Cerkez
3 participated in some kind of a plan.
4 Witness Bertovic testified about that long before Witness AT came,
5 and the OTP asked Witness Bertovic about that alleged blockade. At the
6 time we didn't know why the OTP was asking the witness about that because
7 we didn't hear anything about that earlier and we only learned about that
8 when Witness AT came one or two months later.
9 Witness Bertovic gave a clear explanation. However, Your Honours,
10 if you only look at the map that we have, you will have no need for that
11 explanation. Even had he received such a order, even had the bridge been
12 blockaded, that would still have been pointless because UNPROFOR could
13 have reached that area from two or three directions. So this is a
14 completely senseless story and unfortunately it is very difficult to
15 defend oneself from such stories. Therefore, I ask you to look at the
16 testimony of Witness Bertovic.
17 I will not address the issue of sentencing right now because of
18 the limited time that we have, and I will let my colleague use the
19 remaining time for the issue of joint criminal enterprise.
20 MR. MIKULICIC: [Interpretation] Your Honour, very briefly in view
21 of the time. I will touch upon the submissions of the OTP given to us
22 today concerning the joint criminal enterprise and the issue of the nature
23 of the armed conflict.
24 As for the first question which is the doctrine of joint criminal
25 enterprise, I would like to say at the outset the following: We do not
1 find the invocation of this doctrine in the indictment. We can also not
2 find it in any of the motions submitted during pre-trial phase. It is not
3 mentioned in any of the testimonies or any of the documents. It is also
4 not mentioned in closing arguments of the OTP. The doctrine was not
5 mentioned in Trial Chamber's judgement either. It is only now in the
6 appeals proceedings that this issue is brought up.
7 The whole story is based on the fact that on the 15th of April, a
8 meeting was held in Blaskic's headquarters where allegedly Mr. Cerkez was
9 also present and where allegedly a joint conclusion was made which was
10 linked to joint criminal enterprise.
11 My learned friend from the OTP said the following: "We have no
12 concrete information regarding that." I'm quoting his words. My learned
13 friend today, Ms. Jarvis, said that logical inference is the only way to
14 prove intent. Based on these words, it is evident that all the OTP's
15 submissions were in fact virtual arguments which have no firm basis.
16 During the proceedings, we never heard from any of the alleged
17 participants of that criminal meeting. During the proceedings, we did not
18 see a single document emerging or emanating from that criminal meeting.
19 We heard testimony of one witness claiming that my client was present at
20 the hotel where the meeting was held, this is all. Based on that, an
21 inference is made that my client was at the meeting where the criminal
22 plan was devised, that he accepted the goals of that plan as his own and
23 therefore was liable for everything that ensued based upon that plan.
24 This reminds me of linking conclusions which are based on a
25 completely wrong premise. What the OTP is doing is actually putting
1 before you, Your Honours, a flawed premise and then making conclusions
2 based on it. We cannot accept that. This is wrong. This has no basis,
3 no support in facts and evidence adduced during trial.
4 We claim, the Defence of Mr. Cerkez claims, that there are no
5 direct and no indirect evidence that any criminal plan was made and that
6 during that process, Mr. Cerkez was present and that he shared the intent
7 of other persons who were allegedly involved in that criminal plan.
8 It is completely clear to me that the theory and doctrine of joint
9 criminal enterprise is a form of criminal liability which in Krstic case,
10 paragraph 601 of the appeals judgement, the Appeals Chamber linked to
11 Article 7(1) of the Statute, but if this is a legal issue, I claim that
12 this is also a factual issue. What I'm submitting is that there are no
13 facts that would support this kind of legal conclusion. Therefore, I
14 claim that the participation in joint criminal enterprise has not been
15 proven and, therefore, the crimes that took place in Ahmici and other
16 locations in the Lasva Valley do not emanate from the plan that was
17 allegedly made and with which my client had nothing to do.
18 My learned friend, Ms. Jarvis, spoke today about the
19 discriminatory intent of Mr. Cerkez, and once again she said that the only
20 way to infer this was by using logic.
21 I will now speak about some of the firm evidence that was produced
22 during trial. Numerous witnesses spoke about the views and positions of
23 Mr. Cerkez, about how he respected other people, how he respected
24 diversity and how he respected persons regardless of their political or
25 religious affiliations. We heard no evidence that would show that
1 Mr. Cerkez had any kind of prejudice with respect to anyone; on the
2 contrary. However, what the OTP is offering us now is to make logical
3 inferences, yes, but how can we make such logical inferences if the
4 elements for it are lacking?
5 What we submit is that this thesis is unfounded and that there are
6 absolutely no elements to support it.
7 Just this, your question, Your Honour Judge Schomburg, you asked
8 about the conclusion, about the express orders given by Mr. Cerkez, and I
9 will reply to your question now.
10 There is no such express order, first, because Mr. Cerkez never
11 issued it, and second, because he simply is not the kind of person who
12 would be able to function in that way in that kind of a situation.
13 Mr. Cerkez was part of a military structure; he implemented orders in
14 accordance with the international norms of warfare.
15 I thank you for your attention, and I'm prepared to answer your
16 questions if there should be any.
17 JUDGE SCHOMBURG: There seem to be no questions. Then may I
18 kindly ask the parties, during the break, to prepare the homework that's
19 left, and this is to discuss the agreed facts based on Mario Cerkez's
20 submission of facts regarding matters of sentencing; this is to tender
21 Mr. McFadden's submissions, if any, available right now; and we still have
22 to mark the map of yesterday, as I learned from the Registry; and then
23 finally, there is still one point remaining, and this is the supporting
24 slides and documents in support of the Kordic defence. And please come to
25 an agreement during the next break that we can do this without further ado
1 immediately after the end of the break, and this will be at 11.00, then
2 we'll reconvene.
3 --- Recess taken at 10.27 a.m.
4 --- On resuming at 11.02 a.m.
5 JUDGE SCHOMBURG: As indicated before, may I ask the parties, what
6 about the remaining homework? Mr. Farrell, please.
7 MR. FARRELL: Maybe I'll give the Prosecution's position in
8 relation to all four and I'll ask my learned colleagues to -- first of all
9 make sure I don't misrepresent them, but let them make their own
10 submissions. My apologies to Judge Weinberg de Roca.
11 Regarding the map that was put in, I've spoken with counsel for
12 both Mr. Cerkez and Mr. Kordic, and we generally agree that it can be put
13 in. It can be put in, if you wish, as an exhibit for Mr. Cerkez, since he
14 referred to it, and that I've spoken with Madam Registrar and she is got a
15 number for it, I think DAC3, if that's correct.
16 JUDGE SCHOMBURG: Madam Registrar, that's correct? Okay. Then
17 admitted as such.
18 MR. FARRELL: Thank you. The second matter are the Detention Unit
19 reports. There is the one from Mr. -- on behalf of Mr. Cerkez and one on
20 behalf of Mr. Kordic, I understand. We take no issue with them being
21 filed, as long as you accept what our legal submissions were earlier on
22 the value of them.
23 JUDGE SCHOMBURG: We have not yet seen them so far.
24 MR. SAYERS: Your Honour, I actually had the Detention Unit
25 reports by Commanding Officer McFadden that we received yesterday
1 afternoon, and they're ready to be tendered to the Court.
2 JUDGE SCHOMBURG: Okay. I take it that based on your additional
3 comments there are no objections to those two. If it please may be copied
4 during the next break, or do you already have copies? Okay. May I ask
5 the usher, please, to distribute this. What would be the next exhibit
7 [Appeals Chamber and registrar confer]
8 THE REGISTRAR: The exhibit number will be DAK4.
9 JUDGE SCHOMBURG: And this is, so the record is quite clear, the
10 behaviour report of 18 May 2004, issued by Mr. Timothy McFadden in
11 relation to Mr. Kordic.
12 MR. KOVACIC: Your Honour, if I may just to continue on the same.
13 We have the same document prepared by Mr. McFadden on 18 May, which we
14 received yesterday, and I would also like to put that in record.
15 JUDGE SCHOMBURG: Yes. Do you have already copies of this? Okay.
16 Thank you.
17 MR. KOVACIC: Yes. I just handed the copies to the registry.
18 JUDGE SCHOMBURG: This would be exhibit number?
19 THE REGISTRAR: Exhibit number DAC5.
20 JUDGE SCHOMBURG: Thank you. Admitted into evidence under this
21 number. Mr. Farrell, please.
22 MR. FARRELL: Thank you. As you appreciate, our position is that
23 the Appeals Chamber has already ruled that you can't take these matters
24 into consideration if our reading of the decision is wrong, the materials
25 before you, if our reading of the decision is persuasive, then this
1 matter, though placed before you for the purpose of argument, can't be
2 relied upon.
3 The next issue is the material as to the private life and family
4 background of Mr. Cerkez, and I don't know -- I can set out, if you wish ,
5 or Mr. Kovacic, the numbers or Mr. Kovacic can set out the paragraphs of
6 the filing that we have agreed to place before you.
7 JUDGE SCHOMBURG: Okay.
8 MR. FARRELL: The filing, for the record, was a filing on May 4th,
10 JUDGE SCHOMBURG: Yes.
11 MR. FARRELL: It's titled "Mario Cerkez's submission of facts
12 regarding matters of sentencing." It has the registry page numbers from
13 the filing as A10.802 to A10.797. Paragraphs 1 through 11 are stipulated
14 to by both -- well, by the Prosecution and agreed to in the filing by the
15 appellant. Paragraph 18 is stipulated to or properly before you. And
16 paragraph 23 of the report doesn't really relate to his family background,
17 but it relates to the Detention Unit. It was placed in the report before
18 he received the present letter from the Detention Centre. So it's of the
19 same substance, so there's no issue with that.
20 Those are the factual matters that are before you. The
21 Prosecution doesn't object to the conclusory comments from paragraphs 24
22 to 26, as part of his representations before you on the material.
23 If -- I'll just check with Mr. Kovacic to make sure if that's correct.
24 MR. KOVACEVIC: [Interpretation] Yes. This has been stated
25 accurately. I think, my learned friend, if I can just be given one minute
1 to address other paragraphs that we have not agreed upon.
2 JUDGE SCHOMBURG: Firstly, we are now at the stage where we
3 discuss about agreed facts, and I take it that you agree that those
4 paragraphs mentioned just a minute ago, that we take it as evidence, as
5 agreed facts. So this part of this document, it's already part of the
6 record. It's seen by the parties as agreed fact, and later, when it comes
7 to sentencing, I think this is the point to address the remaining points
8 you want to make on the personal life and circumstances of Mr. Cerkez.
9 Thank you. Then one point remains open, and this is the
10 supporting material provided by the Kordic Defence. Any objections by the
12 MR. FARRELL: The -- in terms of the slides that were presented
13 before you, I've indicated to my friend that the ones put before you, not
14 any additional ones that happened to be on the CD-ROM, but the ones that
15 were put before you the slides that were part of the submission we have no
16 objection to those. The chart that was put before you, in the
17 Prosecution's submission, it actually contains the position of the
18 appellant. Of course, I understand they wanted to put it before you
19 because there was a request that they make their position clear; there's
20 no fault in that. But since it contains submissions, our position is that
21 if the Court decides to accept it, that of course you take full notice of
22 our view that it doesn't accurately reflect the actual judgement in terms
23 of whether or not there were other factual findings in the Prosecution's
24 position in that regard. That's the position in relation to those
25 matters. Thank you.
1 JUDGE SCHOMBURG: In fact, the CD-ROMs can be distributed, and
2 it's for the Trial Chamber, during the next break, to decide on whether or
3 not to accept the charts. May I ask the usher, please, to distribute the
4 CD-ROMs, with the caveat you mentioned.
5 MR. FARRELL: That's correct. Mr. Sayers --
6 [Appeals Chamber confers]
7 [Appeals Chamber and legal officer confer]
8 JUDGE SCHOMBURG: Please, once again, coming back to the CD-ROMs,
9 your submission was that those slides presented during the oral
10 submissions, and being on the now-burned CD-ROMs, there are no objections.
11 However, I take it that also other slides not contained in this
12 are contained in the same CD-ROM. What is your position? Is it necessary
13 that the Kordic Defence once again presents a CD-ROM only with those
14 slides presented during the oral submissions, or that you rely on the
15 Appeals Chamber's assessment, and based on this, taking only into account
16 those slides being presented during the oral presentation?
17 MR. FARRELL: I don't take any issue with the Chamber's ability to
18 distinguish the slides. They are in essence only submissions, not
19 evidence. The only thing I would note, this may be a technical
20 suggestion, but it might be better for the record that the record which is
21 reflected in the transcripts also is properly reflected in the CD-ROMs, so
22 that we don't end up having extra material on the record that someone has
23 to distinguish between at a later time if there's ever a review of the
24 material on the record. It puts my friends at a bit of an inconvenience,
25 I know, because they have to then simply re-burn the CD, but I think that
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 would be the easiest and safest way, just to make sure that the record is
3 JUDGE SCHOMBURG: Would it cause serious problems for you?
4 MR. SAYERS: The only logistical difficulty, Your Honour, is that
5 both my colleague and I are going to be out for two weeks. The only
6 additional items on here are arguments that we did not get to. Actually,
7 one argument that we did not get to, regarding Rule 98 bis. Obviously,
8 the Appeals Chamber is free to disregard that. And there's one section in
9 here that contains some miscellaneous points. It's separately
10 identified. It's very easy to just disregard it in its entirety.
11 We're in the Chamber's hands, obviously. We have the disks here,
12 they have been burned, but we won't be able to get additional disks for
13 the Appeals Chamber I think for probably two and a half to three weeks, if
14 the Chamber wants additional ones.
15 JUDGE SCHOMBURG: Just give us a minute, please.
16 [Appeals Chamber confers]
17 JUDGE SCHOMBURG: After having discussed this issue, there are
18 apparently two solutions: Either you provide the Chamber immediately with
19 hard copies of those slips you have presented during your oral
20 presentation, or you print a new CD-ROM without any delay, covering those
21 slides presented during your oral submissions. I think it is for you to
22 decide what is best and what is the most expeditious way. I think for the
23 Chamber, as such, it might be the easiest way to get hard copies.
24 MR. SAYERS: If you wish hard copies, hard copies it will be,
25 Your Honour.
1 JUDGE SCHOMBURG: Okay. Thank you. Then we'll get -- we're
2 looking forward for the hard copies presented during your oral
3 submissions. Thank you.
4 And as regards the charts, we come back to this later.
5 So then let's now, without further ado, come to the appeal of the
6 Prosecution, and we expect the submissions by the OTP, hopefully in a very
7 precise and short submission, as promised yesterday. Thank you.
8 MS. BRADY: Thank you, Your Honour. We'll do our best.
9 Your Honour, I'll be addressing on the fourth ground of the
10 Prosecution's appeal on the Prosecution's appeal against Mr. Kordic's
11 sentence. And I won't take very long. What I really want to do is to
12 just flesh out the main bases for our appeal against his sentence, and
13 especially in light of some of the more recent Tribunal case-law that's
14 come out since we filed our appeal.
15 Twenty-five years is a long term of imprisonment, that's for sure.
16 It's a long time in gaol. So why, then, does the Prosecution say that the
17 Trial Chamber imposed a manifestly inadequate sentence and asked the
18 Appeals Chamber to significantly increase it? Simply put, in our
19 submission, the sentence neither reflects the inherent gravity of the
20 crimes or his role in them.
21 The first basis for our appeal, as you know from our Appeal Brief,
22 is that it fails to reflect the magnitude, the scale, the scope,
23 geographically, I'm speaking as well temporally, and the extremely grave
24 nature of these crimes. Yesterday in my response I delved into some of
25 the facts of this case and really this can only provide a snapshot of what
1 can only be described as an overwhelming crime base. In four
2 municipalities in Central Bosnia, Novi Travnik, Busovaca, Kiseljak, and
3 Vitez, in dozens of towns and villages. We're talking about numerous
4 persecutory acts committed for over a year, in which hundreds of civilians
5 were murdered, thousands had to endure other mistreatments, such as the
6 loss of their homes by being burnt down, the loss of their businesses,
7 their livelihood, the physical and mental sufferings that they endured,
8 having their personal effects stolen, their places of worship burnt down
9 and being rounded up and taken to detention.
10 Just looking alone at Ahmici, we know that this was one of the
11 single worst days in the whole history of the war in the former
13 Indeed, the Trial Chamber stated, at paragraph 852 to 853,
14 offences of this level of barbarity could not be more grave and those who
15 participate in them must expect sentences of commensurate severity to mark
16 the outrage of the international community. But in our submission, the
17 sentence doesn't actually reflect an acknowledgment of this principle.
18 The victimisation of the Muslim population could not have been
19 more intense. And I think, particularly important, these crimes were
20 committed against a defenceless population, and as we know from cases such
21 as Kunarac, and indeed recognised in the Banovic sentencing judgement, the
22 vulnerability of the victims must be considered when assessing the
24 It has to also be recalled that the crimes were carried out as
25 part of a pattern of atrocities, all aimed at the ultimate goal of
1 ethnically cleansing Muslims from the HZ HB. Neither in our opinion, in
2 our submission, does the gravity reflect the merciless modus operandi with
3 which the persecutory acts were committed. Again, the facts are clear
4 from the judgement. The attacks being launched against a defenceless
5 Muslim population in the early hours ensuring that that population would
6 be caught by surprise and unable to defend themselves or flee. And
7 performed in the cruellest manner, including the deliberate burning down
8 of their houses and their looting.
9 We could also say that this is a situation which the Vasiljevic
10 judgement recognised, did increase the gravity of an offence. It was
11 directed -- this approach was directed at minimising the possibilities of
12 an effective defence by the victims, as well as securing the completion of
13 the crimes.
14 We also say another very critical factor was not given due weight,
15 and that is the long phase and the long planning nature which was involved
16 in these large-scale crimes, a principle that was recognised in the Stakic
17 Trial Chamber's judgement at 917. And just finally on this gravity of the
18 underlying crimes, I'd also like to stress that Kordic's familiarity with
19 a lot of the victims, particularly those in Busovaca, must also be
20 something that is properly taken into account and was not so reflected on
21 this occasion.
22 The other prong going to the gravity of these offences relates
23 more to his criminal participation or role in the crimes. And in our
24 submission, the sentence does not properly reflect the form and degree of
25 his participation in these crimes. Yes, time and again the Trial Chamber
1 expressed its view as to how serious these crimes were, and time and again
2 commented on the instrumental role that he played. But when it came down
3 to imposing the sentence, it paid insufficient heed to these matters.
4 And Your Honours need no reminding of the words in the Stakic
5 Trial Chamber's decision at 918: "As with white collar crimes, the
6 perpetrator behind the perpetrator, the perpetrator in white gloves, might
7 deserve a higher penalty than the one who physically participated,
8 depending on the circumstances of the case."
9 In our submission, this is such a case. His role in all of this,
10 ordering, planning, preparing, instigating, sometimes directly, more times
11 indirectly, through this collectivity of criminal action, through a
12 collective of people at which he's in the apex is surely deserving of a
13 much higher sentence.
14 Turning to the second basis for our appeal, and this is that the
15 sentence imposed fails to give sufficient weight to his position and his
16 powers as the highest Bosnian Croat political leader in Central Bosnia at
17 the time, and his abuse of that position. Again, the Trial Chamber did
18 notice, did note, at paragraph 853, that the fact that he's a leader
19 aggravates the offence. But again, in our submission, the actual sentence
20 fails to give due weight to his high position of political leadership in
21 the region as an aggravating factor.
22 Although he travelled under a variety of titles and he had various
23 functions which we could say grew and expanded during the course of the
24 time, during the course of the year, it's clear that we know he was
25 president of the HDZ Busovaca and he was vice-president of the Presidency
1 of the HZ HB throughout this whole period. And he -- and that position
2 was not, in our opinion, reflected in the sentence which was imposed.
3 Likewise, the sentence does not adequately reflect the subsequent
4 abuse of that position. When he contributed to the common criminal
5 design, and thereby, through that common criminal design, planned and
6 instigated and ordered the magnitude of crimes committed upon the Bosnian
7 Muslim civilians in the Lasva Valley and its surrounds, and a number of
8 cases have highlighted that abusive position and authority or influence in
9 order to commit crimes and the betrayal of trust are matters that must be
10 taken into account as aggravating the crime.
11 As for the question of his military role and whether it should
12 aggravate his sentence, this issue as to his military authority has been a
13 source of some ongoing controversy in this case, not just at the trial
14 level but even here during the appeal. Kordic didn't have military
15 authority in the sense of being in a formal chain of command, or even, as
16 the Trial Chamber found, in the sense of having the material ability to
17 prevent or punish. But the Trial Chamber made several very important
18 findings about the true scope of his military position or authority, and I
19 point Your Honours to paragraph 530, where the Trial Chamber found he had
20 a clear role leading the HVO in the fighting. So here his military
21 authority being used in a very direct sense. I also point Your Honours to
22 paragraph 532, in relation to Ahmici barricade incident. Not the subject
23 of a criminal conviction in this matter, but here a finding that the
24 Trial Chamber accepted the Ahmici -- what the Ahmici barricade episode
25 revealed was that he had clear political and military authority by this
2 I also point Your Honours to paragraph 585, in which the
3 Trial Chamber found that he was implicated in the attack in Busovaca as a
4 leader exerting both political and military authority; again, in a very
5 direct sense.
6 And paragraph 642, where Dario Kordic, as a local political
7 leader, was part -- was found by the Trial Chamber to be part of the
8 design or plan for the illegal military attack on the Lasva Valley
9 localities, principally for his role as planner and instigator of it.
10 And finally, I turn Your Honours' attention to the findings in
11 paragraph 767, which were based on evidence given by many of the
12 international witnesses in this case. The Trial Chamber had the evidence
13 of Colonel Stewart, Lieutenant Colonel Watters, Brigadier Duncan, who each
14 spoke about this clear link between the military and the political.
15 Brigadier Duncan stated that while operations were Blaskic's task,
16 planning was Kordic's task, leading the Trial Chamber to make the
17 important finding, in paragraph 767, that these international witnesses'
18 observations "do lend support to the Prosecution case that, as might be
19 expected, the exercise of military power was subject to a political
20 authority." As the Prosecution puts it, Blaskic could not do his job
21 alone without Kordic giving the green light.
22 Now, to pre-empt the appellant's argument, he will argue: Well,
23 he wasn't found to have 7(3) responsibility, so how can this factor be
24 taken into account? In our submission, the question of the basis for his
25 liability should not be confused with these factors, these facts found by
1 the Trial Chamber regarding his clear military authority, which go to
2 aggravate his punishment. The Trial Chamber didn't find he had 7(3)
3 responsibility because they weren't satisfied that he had the material
4 ability to prevent or punish. But that's not why he's being punished
5 here. He's not being punished for his own missions as a leader but for
6 his very positive contributions towards the criminal plan, design, call it
7 an enterprise, through which the crimes were ultimately effected.
8 And again, Your Honours need no reminding about the Stakic Trial
9 Chamber's judgement, but I'd like to read it for the record because I
10 think it so aptly expresses our view on this particular issue.
11 In relation -- when sentencing the accused Mr. Stakic, the
12 Trial Chamber said that it considers the primary aggravating factor in
13 this case is the superior position held by the accused. "Where the
14 factual circumstances are such that a Trial Chamber could reasonably find
15 that specific acts could satisfy 7(1) or 7(3), if a conviction is entered
16 under 7(1) only, the accused's position as a superior, when proved beyond
17 a reasonable doubt, must be taken into account as an aggravating factor.
18 However," and this is the most important point, "the aggravating factor is
19 identical whether the accused is found to have fulfilled the requirements
20 for responsibility under Article 7(3) or is simply proved to have held
21 superior positions."
22 And that, in effect, is a complete mirror of our position on this
24 The final basis for our appeal against Mr. Kordic's sentence is
25 that it differs significantly from the sentence passed by another
1 Trial Chamber of this Tribunal, that is, the sentence on Mr. Blaskic for
2 substantially similar, although not identical, criminal conduct. And the
3 Prosecution recognises that this sentence that Blaskic received of 45
4 years is pending issuance, delivery of an appeals judgement. But
5 notwithstanding that, and cognisant of the somewhat different forms of
6 liability, Blaskic having at least some 7(3) responsibility for many of
7 the crimes, but the crime base is very, very similar, and it has to be
8 borne in mind that Kordic's liability under 7(1) is for his very linkage
9 to the crimes committed by the HVO and others. And our submission is that
10 notwithstanding the principle of individualisation of sentencing, there
11 shouldn't be substantial inconsistencies in punishing two offenders where
12 the circumstances of the offence and the offenders are sufficiently
13 similar, and especially not in this case, especially not, when the
14 Trial Chamber had found the relationship between Kordic and Blaskic to be
15 joint authorities, and even that Kordic was above Blaskic. It's a complex
16 relationship to put into one irreducible principle, but I think it is well
17 summarised when the Trial Chamber endorsed the Prosecution's comment that
18 Blaskic could not do his job alone without Kordic giving the green light.
19 There are the three main bases for our appeal. I'd also like to
20 make a comment about, more generally speaking, the principles of
21 sentencing when you come to review the sentence.
22 In our submission, for these sorts of crimes, the goals of
23 deterrence and retribution should play a primary role, that is, deterrence
24 in both its general or educative sense, and to express clearly the
25 international community's revulsion and condemnation of these crimes. But
1 also in its individual and suppressive aspect. I'd like to speak about
2 the role of rehabilitation or re-education as a factor in sentencing. My
3 colleague, Mr. Farrell, has already spoken about the approach that this
4 Chamber should take. But if you come to re-sentence Mr. Kordic, our
5 submission is that rehabilitation or re-education of the offender, it is a
6 consideration, but in this particularly grave type of case, retribution
7 and deterrence should outweigh the need for rehabilitation and
8 re-education. But this is not to say that these concepts cannot play a
9 more vital role at a subsequent stage of serving the sentence.
10 We don't resile from our position one bit. These crimes are so
11 grave that they require the imposition of a much higher, significantly
12 higher, sentence. But, if Your Honours are minded to take into account
13 rehabilitation and re-education, the imposition of a very lengthy term
14 with a recommended minimum term, after a set number of years, could be the
15 most effective outcome and one which reflects all the principles and
16 purposes of punishment. And this is an approach which was taken in Tadic
17 and in Stakic.
18 We don't object to the -- excuse me, just a moment.
19 [Prosecution counsel confer]
20 MS. BRADY: Your Honours, we note that the affidavit of
21 Mr. Kordic's wife attesting to the family circumstances of Mr. Kordic is
22 before you, as well as the behaviour report from Mr. Timothy McFadden. As
23 we said, we don't object to the admission or the -- this going before you,
24 but so long as this subject matter is treated in accordance with our
25 position about the respective positions of deterrence and retribution
1 vis-a-vis rehabilitation in a case such as this.
2 And finally, one further matter that I raise as much as a sword in
3 our own appeal as a shield, in relation to his appeal against his
4 sentence. In our response brief, we acknowledged that some of the factors
5 he put forward may, as a matter of law, be mitigating, such as the family
6 circumstances. But in that response brief, our position was that the
7 Trial Chamber made no discernible error in the exercise of its discretion
8 by giving no weight to those factors. And similarly, this should not
9 impede Your Honours from imposing a higher -- a significantly higher
11 The Celebici Appeals Chamber, at paragraph 847, observed that in
12 certain circumstances, the gravity of the crime may be so great that even
13 following consideration of any mitigating factors, a very severe penalty
14 is nevertheless justified.
15 And we rely on that proposition that where crimes are
16 exceptionally grave, such as this, the -- little or no weight should be
17 given to factors in mitigation. And this proposition has also been
18 subsequently endorsed by the Trial Chamber in Stakic, where, at paragraph
19 926, the Trial Chamber stated that it considered that the substantial
20 volume of evidence given in favour of the accused, Dr. Stakic's
21 personality and family situation merited consideration, but said, however,
22 this factor will not be given undue weight, given the severity of the
24 In our submission, that is the exact same approach that should be
25 taken here.
1 That completes my submissions on this ground of appeal, and I'll
2 hand over to my colleague, Mr. Farrell, unless Your Honours have any
4 JUDGE SCHOMBURG: There are no questions.
5 MS. BRADY: Thank you.
6 JUDGE SCHOMBURG: Please proceed, Mr. Farrell.
7 MR. FARRELL: If I may begin. The Prosecution's appeal against
8 Mr. Cerkez is twofold. There's an appeal in relation to the acquittal for
9 the crimes committed in Ahmici and the counts for which the Prosecution
10 has sought this Chamber's intervention and the entering of conviction, are
11 set out in paragraph 3.6 of the Prosecution's Appeal Brief.
12 The second aspect of the Prosecution's appeal relates to the
13 sentence imposed on Mr. Cerkez. I just note in relation to the sentence
14 appeal that there are two aspects to it. I won't be making submissions on
15 sentence. The brief is fairly -- it's concise. But the argument is that
16 there is a manifest inadequacy in the sentence of 15 years. The
17 Prosecution's submission is that in light of the role played by
18 Mr. Cerkez, the very prominent one in these -- in this campaign of
19 persecution for which he was found guilty not only to be involved in
20 individual counts but to be a member of a joint criminal enterprise that
21 his sentence should certainly be more than 15 years.
22 The cases subsequent to this one, and there have been a number of
23 sentencing decisions, don't particularly reflect sentencing patterns as of
24 yet before the Tribunal, though there are a few that we'd ask the Court to
25 take into consideration. On a few of the cases where there's been guilty
1 pleas, Banovic, Nikolic, and others, the sentences in those cases where
2 someone has pled guilty for crimes, though of a different nature, crimes
3 of similar magnitude, Mr. Banovic, even though he's involved directly,
4 crimes of a less magnitude in terms of their scope, he received a sentence
5 of 23 years, while Mr. Cerkez, in our submission in a position of
6 authority in a wider range of crimes, only received 15 years.
7 The Vasiljevic judgement is one where the Appeals Chamber has
8 upheld a sentence for 15 years for essentially aiding and abetting in
9 approximately five killings. Mr. Cerkez's sentence is 15 years for
10 something much, much greater than that.
11 The second aspect of the Prosecution's sentence appeal is simply a
12 request that if the Prosecution is successful on its appeal in relation to
13 Ahmici, that the Court increase the sentence. It's not an independent
14 ground of appeal, obviously, because it's not -- can't fault the Chamber
15 for not sentencing for Ahmici if we're not successful on our appeal, but
16 we ask that if we are successful in the Prosecution's appeal regarding
17 Ahmici that you take this into consideration as an independent factor for
18 the increase of his sentence, in light of his liability being changed.
19 If I could now address the Prosecution's appeal in relation to
20 Ahmici. If I could ask Your Honours to please open your judgements to
21 paragraph 831. As you know, a Prosecution appeal or an appeal against an
22 acquittal, an appeal where you attempt to substitute a conviction for the
23 acquittal, requires, in the Prosecution's submission, that we can appeal
24 that under the Statute, but that generally it's limited to the findings of
25 fact. The question is if on the facts as found by the Trial Chamber, if
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 they had applied the law correctly, a conviction can be entered in
2 relation to this ground of appeal that there's an error of fact. That's
3 because this Chamber is in the same position as the Trial Chamber. The
4 facts have been found. There's no need for you to make any factual
5 findings. Based on those facts, if the law was applied correctly, which
6 is a legal de novo function which rests with this Chamber, would the
7 result have been different?
8 There's been a successful appeal against acquittal in the Tadic
9 case, which was an error of fact, not an error of law, but certainly
10 demonstrates the authority of this Chamber to intervene.
11 In paragraph 831, this is the findings as to responsibility, which
12 incorporate the factual findings. Paragraph 831 states: "The
13 Trial Chamber has already held that Cerkez, as commander of the
14 Viteska Brigade, participated in the attacks on Vitez, Stari Vitez, and
15 Donja Veceriska, although not in the initial attack on Ahmici."
16 The first sentence indicates that Mr. Cerkez is in a position of
17 authority. He's the commander of that brigade which is engaged in attacks
18 in the municipality and that he has participated in the sense that he is
19 the commander of that brigade. The distinguishing factor between the
20 convictions in the other -- the town or villages in the municipality and
21 the conviction for Ahmici is simply that he was not in the initial attack.
22 That's the finding. That's also the finding in paragraph 703.
23 Paragraph 831 continues: "This was a high point of the campaign
24 of persecution. The accused played his part in that campaign by
25 commanding the troops involved in some of the incidents." That third
1 sentence is clear. He's involved in a joint criminal enterprise and he
2 played his part in that campaign or that enterprise by, through his
3 troops, taking certain steps. His liability is for the joint criminal
4 enterprise of persecution, and the part that he plays, his contribution to
5 that, is the specific acts that they've indicated in Vitez, Stari Vitez,
6 and Donja Veceriska.
7 Paragraph 831 continues: "As such, he was a co-perpetrator, and
8 that he had the necessary mens rea may be inferred also in his case from
9 his part in the campaign."
10 What the Trial Chamber has done here is, in my submission,
11 correctly found as a fact that he was a member, co-perpetrator, in a
12 common purpose to engage in a persecutory campaign, and he played his
13 part, and his part was his direct involvement, and it constituted the
15 I will take you through other findings in the judgement, but this
16 paragraph alone is sufficient, in my respectful submission, to enter a
17 conviction for the acquittal on Ahmici. He is found as a result to be a
18 member of a joint criminal enterprise, he's found to be contributing to
19 the campaign of persecution, he has played his part, and he has the
20 necessary mens rea.
21 The law on joint criminal enterprise or common purpose was cited
22 by this Trial Chamber, and I don't need to take you to it, but in
23 paragraph 397. It correctly notes that it requires the elements as set
24 out in Tadic and that the participation is, and is limited to, the
25 contribution to the execution of the plan. It cites the law at paragraph
1 385 to planning, where he intended to participate and committed deliberate
2 acts which contributed directly and substantially to the commission of the
3 crime; that's the Trial Chamber's conclusion regarding planning. And the
4 Trial Chamber sets out the law on aiding and abetting and cites from the
5 Tadic Appeals Chamber, if I recall, that any acts directed to assist,
6 encourage or lend moral support and the support has substantial effect.
7 At paragraph 703, the Court refers to the evidence in relation to
8 the attacks, the attacks on the three areas. It finds that he
9 participated in the attacks. This is for Vitez, Stari Vitez, and
10 Veceriska. And this is inferred from his presence at the military meeting
11 on the 15th of April, 1993, the documentary evidence, and the entries in
12 the duty officer's log.
13 The Court then continues in paragraph 783 and says: "However,
14 there is no evidence which satisfied the Trial Chamber beyond reasonable
15 doubt that he bears any responsibility for the initial attack on Ahmici on
16 16 April, which was the responsibility of the military police battalion,
17 not under his command."
18 What's the focus here? In my submission, the focus here is on
19 7(1). The Court is not applying the common purpose doctrine which it
20 cites earlier and for which it finds him guilty at the end of the
21 judgement. The last sentence says that he was not responsible for the
22 initial attack on Ahmici. Well, with respect, and I'll refer some of the
23 facts as found, he actually was and had a role to play in the initial
25 Secondly, he had a role to play in Ahmici in the reports he was
1 receiving and reporting back to Colonel Blaskic. And thirdly, he had a
2 role to play in that his troops went in for the arrest operation at the
3 end of the day. But that doesn't matter. It doesn't matter whether he is
4 or is not directly involved himself in the attack on Ahmici. What matters
5 is that he's a member of a joint criminal enterprise, in which this is
6 part of the plan and which he knowingly contributes by his acts to the
7 overall plan in the municipality.
8 At the end of the day, the Court looks at whether or not the
9 military police battalion are under his command and whether there was any
10 involvement in the brigade in the initial attack, but not, in my
11 respectful submission, on the basis of the liability which they considered
12 and which they cited as the common criminal plan.
13 In paragraph 691, the Trial Chamber concludes, after looking at
14 all the orders which are cited in the page previously, at page 236, I went
15 through those orders yesterday, and in my respectful submission, it is
16 absolutely clear that Mr. Cerkez is involved in the municipality of Vitez
17 in relation to all the attacks taking place in the municipality.
18 Colonel Blaskic's immediate superior and the person responsible for the
19 municipality of Vitez and for the Central Bosnia operative zone is asking
20 the commander of the Vitez Brigade to report back, but more importantly,
21 under subparagraph (C) on page 236, to completely take the villages of
22 Donja Veceriska, Ahmici, Sivrino Selo, and Vrhovine." It's not saying, as
23 the appellant is saying: Oh, if you can check with anyone on the ground
24 and see if you can obtain any information that you might be able to get at
25 your disposal, and please funnel it through Mario Cerkez so he can tell
1 me. With respect, that's not the way the military chain of command works
2 and that's not what's being said here. "Completely take the villages."
3 That's an order. The reports back say: "With regard to your subject
4 regarding further combat operations," in other words, the combat
5 operations in the Vitez Brigade, by the Vitez Brigade and in his area of
6 responsibility, and then without going through it, you will see that he's
7 reporting back on the military operations.
8 And I've already mentioned the fact that when he reports back at
9 2.50 in the afternoon directly to Colonel Blaskic, he talks about the town
10 of Vitez being clean and about the 50 Muslims in the cellar of the brigade
11 police station, and I've already submitted to you and presented yesterday
12 an exhibit from trial that shows that the brigade police station is in
13 Vitez and it's 300 metres from his headquarters.
14 Even if there might have been a doubt, and it's my submission that
15 there cannot be one, with respect to the fact that he was involved in a
16 plan and that the plan arose from the second military meeting, which is
17 listed at 610 of the judgement, that, combined with his involvement, and
18 it's his direct involvement, can leave no doubt that if they would have
19 applied the law on common purpose or planning to the facts before them,
20 they would have convicted.
21 There are numerous findings set out in the judgement regarding the
22 role that was played by the Vitez Brigade. I only want to refer to a few
23 of them.
24 At paragraph 612, there's a discussion of the role to be played by
25 the Vitez Brigade in the common plan. And one of the functions to be
1 performed by the Vitez Brigade, which is accepted by the Trial Chamber, as
2 they accept AT's evidence on the preparation, is that the Vitez Brigade
3 was to prevent UNPROFOR from entering Ahmici. This was before the attack
4 when this decision was made. This was the day before. Now, though you
5 don't need his direct involvement for joint criminal enterprise, the plan
6 included blocking UNPROFOR from getting to Ahmici, in light of Blaskic's
7 orders to kill, to expel, and to burn houses. As a member of the plan, he
8 should be found liable. As a direct participant to ensure the successful
9 operation of the attack on Ahmici by blocking UNPROFOR, it's clear
10 evidence that on that basis alone he is contributing to the attack on
11 Ahmici, either as a joint criminal enterprise or certainly aiding and
13 The Court notes later on in its judgement, where AT is approached
14 by Pasko Ljubicic, and Pasko Ljubicic blames him - I'm sorry - blames
15 Cerkez and complains about the fact that Cerkez let UNPROFOR through.
16 Pasko Ljubicic is the commander of the military police that was operating
17 in Ahmici, and he complains to Cerkez. And what AT says Cerkez's response
18 is: He doesn't respond I don't have any function to perform, I don't know
19 what you're talking about. He blames it on Bertovic. Bertovic was his
20 deputy commander, of the Vitez Brigade, and he blames the fact that
21 UNPROFOR gets through on his deputy commander. He doesn't deny that that
22 was his role or that there was no responsibility for that. That's
23 according to AT's testimony.
24 JUDGE SCHOMBURG: Just to be clear on that, please, to which part
25 of the judgement or evidence before us you guided us just --
1 MR. FARRELL: Of course. If I can just find it. I'm sorry. I
2 just recall that ... It's in paragraph 692. And if you look at the
3 beginning of paragraph 692, or I can read out the first. It's a long
4 paragraph with a number of subparagraphs. And the beginning of 692 says:
5 "The Prosecution called evidence which demonstrated Mr. Cerkez's reaction
6 to these events." And then under (d), it refers to his response when
7 Pasko Ljubicic complains about UNPROFOR being allowed into Ahmici on the
8 16th of April, 1993, in which Cerkez said it was not his fault but
9 Bertovic's. Or he goes on and says the explanation was that UNPROFOR went
10 around the barricade. So there was, if you accept AT's evidence, of
11 course, and the Trial Chamber has found that AT's evidence with respect to
12 the preparation was credible, you have the involvement, first of all, the
13 agreement prior to the attack, the assignment of a task prior to the
14 attack, the function in relation to Ahmici, and then the explanation that
15 UNPROFOR was able to get around the barricade.
16 There's ample evidence of the coordinated campaign, coordinated
17 military campaign which results in the persecution. There's the
18 substantial evidence of the fact that the attacks take place at around
19 5.30 until 6.00 in the morning, in a number of places, Vitez, Stari Vitez,
20 Kruscica, Donja Veceriska, Ahmici. There's the evidence as to the crimes
21 that were committed in each one of these places, all pointing to the fact
22 that there was a coordinated persecutory campaign by, at a minimum, the
23 four members who were at the meeting on April 15th, those four members, as
24 you recall, are Pasko Ljubicic, who is in Ahmici, Mr. Cerkez, AT says
25 Mr. Grubesic was there, and you will remember Mr. Grubesic's role is to
1 launch the initial artillery shell into Ahmici which was to commence the
2 attack, and AT's evidence also indicated that Mr. Grubesic, as the
3 commander of the Busovaca Brigade, was to block UNPROFOR if they came from
4 the direction of Busovaca.
5 I also note that at the end of the day, as I've indicated
6 before - I think it's in the war diary, 1755, and the Trial Chamber refers
7 to it - there is reference to the fact that -- I'll just refer to it. If
8 you'll give me one moment. It's in paragraph 656, referred to by the
9 Trial Chamber in reliance on their findings. And at 1755 on the 16th of
10 April, 1993, it indicates that there's information recorded in the logbook
11 and listed as Dusko, Cerkez, and Pasko. Dusko, is, in the Prosecution's
12 submission, Grubesic, who AT said was in the meeting on the 15th, whose
13 role was to block the Kaonik-Busovaca road and who was in charge of the
14 artillery from Hrasno hill. Cerkez, we know, and Pasko, in the
15 Prosecution's submission, is Pasko Ljubicic. And then it indicates
16 Donja Veceriska, Ahmici, the places. Then it says the HVO is carrying out
17 arresting people. In the Prosecution's submission, that's the
18 Viteska Brigade.
19 The Trial Chamber found that the evidence clearly points to
20 organised HVO attacks in these areas. The Trial Chamber found that the
21 Viteska Brigade was in the thick of the fighting and that Mario Cerkez was
22 in command of that brigade. The Trial Chamber found that there is clear
23 evidence that Mario Cerkez, as commander of the Viteska Brigade,
24 participated in the attacks on Vitez, Stari Vitez, and Veceriska. It
25 finds that his participation was during the high point of the campaign of
1 persecution and that he played his role and contributed to the campaign by
2 commanding his troops in these incidents. The Trial Chamber found that he
3 was at the military meeting on April the 15th, in which Blaskic gave the
4 assignments. The Trial Chamber found that he was part of a coordinated
5 attack. The Trial Chamber relied on the reports by which Blaskic is
6 asking for a report in the municipality of Vitez, including Ahmici.
7 The Trial Chamber finds that in the cases where Mr. Cerkez
8 participated in the attacks as commander of the Viteska Brigade, he
9 committed those with the intent to commit the crimes as a co-perpetrator
10 in the campaign.
11 That brings me back to paragraph 831. Understanding the
12 judgement, in light of the facts that I've just mentioned, the
13 Trial Chamber then finds that he "participated in the attacks during the
14 high point of the campaign as a co-perpetrator to the common purpose,
15 playing his part in that campaign by commanding troops with the necessary
16 mens rea."
17 With respect, based on those findings and a proper application of
18 either planning or joint criminal enterprise, the Trial Chamber erred and
19 should have entered a conviction for Ahmici.
20 Those are the submissions of the Prosecution. There's a second
21 aspect in our brief regarding evidence that was not referred to but we
22 rely on it, it's in the brief, but I will not make any submissions on it.
23 Thank you, Your Honours.
24 JUDGE SCHOMBURG: Thank you. Then may I invite Mr. Sayers for
25 your submission in response to sentence. Would it be appropriate to have
1 20 minutes on this?
2 MR. SAYERS: We are ready, Your Honour, to present our
3 submissions, if you wish.
4 JUDGE SCHOMBURG: Thank you.
5 MR. SAYERS: There are two -- actually three matters. I wonder if
6 someone could turn on our computer screen here in the booth. Second, I'd
7 like to alert the Appeals Chamber that Mr. Kordic will not be making a
8 statement under Rule 84 bis(a) and with the Appeals Chamber's permission,
9 I'd like to use his 15 minutes in our argument, if that's acceptable.
10 JUDGE SCHOMBURG: I don't think so. Sorry. Now my computer is
11 off again. It has nothing to do with the Rule you mentioned just
12 beforehand. It would be only, as it is customary in the Appeals Chamber
13 now, to give the accused in person a chance to address the Appeals Chamber
14 on what he wants to say. And this is in civil law referred to as the
15 final word. But it can't be substituted by your submissions, so
16 therefore, your submissions should be limited to a response to the request
17 of the Prosecution to have a harsher sentence on your client, and I think
18 this could be done within the next 20 minutes.
19 MR. SAYERS: 20 minutes, Your Honour?
20 JUDGE SCHOMBURG: Maximum, yes.
21 MR. SAYERS: Very well. The Prosecution painted, with a very
22 broad brush. We urge the Appeals Chamber to consider the points made by
23 the Prosecution but consider the evidence very precisely. There was no
24 mention of the standard of review. The standard of review is perfectly
25 clear. It's the obligation of the Prosecution to show that the
1 Trial Chamber has committed discernible error in the exercise of its
2 sentencing discretion.
3 I'm afraid we have a slight presentation here, but obviously this
4 is not working, so I'll confine my ...
5 [Appeals Chamber and registrar confer]
6 JUDGE SCHOMBURG: I just learned that it can't be done from the
7 booth, and therefore, a technician has to come. I think it would be
8 unfair to leave you without your prepared slides, and maybe we can switch
9 the order. I don't know how long it will take for the technicians to
10 repair this. And I wonder whether I can ask the Defence of Mr. Cerkez to
11 start with his submissions. Mr. Kovacic, are you prepared?
12 MR. KOVACIC: I had not really prepared, but I think I can handle
13 it. Just give me just one minute, please.
14 JUDGE SCHOMBURG: Of course.
15 MR. KOVACIC: Yes, I think I can do it, Your Honour.
16 [Interpretation] The first matter I would like to say is that
17 there's been a lot of repetition, which, in a way, is unavoidable,
18 because, on the other hand, the OTP, yesterday and this morning, gave its
19 response to the appeal of Mr. Cerkez, and then just now they presented
20 their views concerning the acquittal of Mr. Cerkez on the Ahmici count.
21 And the facts are what is important here. Both of these issues boil down
22 to the question whether the facts have been established accurately;
23 second, whether they have been interpreted appropriately; and third, what
24 inferences can be made based on those facts.
25 You've already heard what our position is concerning the key
1 evidence that was used to find Cerkez criminally liable for the
2 participation of his unit in the events in Donja Veceriska and the other
3 location. So the focus, again, is the plan. And once again, we come back
4 to Witness AT. On the one hand, we have hearsay evidence of that witness
5 about the infamous meeting. The witness claims that the meeting was held.
6 He doesn't know what has been agreed at the meeting, so he doesn't know,
7 we don't know, whether there was a plan and what kind of a plan. However,
8 what the witness does know, and what he testified to, is that the killings
9 were mentioned for the first time in the meeting that was held later in
10 Nadioci, the meeting that was attended only by the military police. So
11 how does that implicate Cerkez in the sense that he knew about the plan?
12 There is no evidence. There are no findings to support that Cerkez had
13 anything to do with the military police, so that he could have learned
14 about it from them. It is clear that after that infamous military
15 meeting, military police left the headquarters of Blaskic, the hotel, and
16 went to Nadioci, to the Bungalow there, to further develop their plan for
17 the operation. There is no evidence pointing to the fact that Cerkez
18 could have known anything about that, being involved in that.
19 Second, credibility of that witness. Your Honour, I have to
20 reiterate once again that this is a witness who is completely not
21 credible. He's a convicted murderer and a liar, and there are documents
22 which prove that. We do not have any witnesses who -- I'm sorry.
23 Witness AT states that there was a person who attended the meeting,
24 Mr. Grubesic; however, when Mr. Grubesic came here to testify, he said
25 that he did not attend the meeting.
1 As for the claim that Cerkez attended the meeting, we should look
2 at Exhibit D161. This exhibit proves that Cerkez did not attend the
3 meeting. Therefore, it is clear, based on all of the evidence, that
4 Cerkez did not attend the meeting. Second, even had he attended the
5 meeting, there is absolutely no evidence, no evidence whatsoever, as to
6 what kind of a criminal plan was made at the meeting. We agree that some
7 kind of a military plan was made, and how do we know about that? We know
8 that based on those four orders that I've spoken to you about, those
9 orders are D160/2, D343/1 through 6, 7, and 8. So, yes, there was a
10 military plan; however, that was a legitimate, lawful military plan.
11 The other issue is that part of that legitimate military plan was
12 transformed into something else in Ahmici, and it was transformed into
13 criminal conduct. Why this happened, we don't know. There is ample
14 evidence to show that the 4th Battalion was sent to that place and that
15 that unit did more than it was authorised to do based on the order. As
16 for other units, I wouldn't say that other units overstepped their scope
17 of authority. The area of responsibility of my client, for which my
18 client is responsible, is Kruscica alone, which is to the south of Ahmici.
19 We heard many witnesses, very credible witnesses, testify to the
20 fact that nothing whatsoever happened in Kruscica.
21 The other issue that the OTP spoke about is that Mr. Cerkez
22 received -- assisted in compiling and gathering information. Now, this
23 assistance of Mr. Cerkez during the 16th of April, when he truly was
24 gathering information, or his people, pursuant to his orders, were
25 gathering information from this entire chaotic region and reporting this
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 information back to Blaskic, which, in a military structure, is a
2 situation where a subordinate reports back to his superior, and the
3 information required by the superior. We have clear testimony of
4 witnesses supporting this. One of them is Witness Zuljevic, which is
5 mentioned in paragraph 698 of the judgement. Therefore, they were
6 gathering information.
7 Now, whether, after the criminal plan was allegedly made, and
8 after the crimes in Ahmici were committed, we have now to establish
9 whether the assistance provided by Cerkez after the fact, after the crime
10 has been committed, can be considered a criminal conduct of
11 co-perpetration or aiding and abetting.
12 [In English] Your Honour, if you could instruct me how much time
13 do I have?
14 JUDGE SCHOMBURG: All in all you have one and a half hour, and
15 it's now ten minutes to go before the break, and then we'll restart one
16 hour later, and then you have one hour and 10 minutes at your disposal, if
18 MR. KOVACIC: Thank you, Your Honour. Then I will use this time
19 until the break, and then my counsel will use some time, if necessary.
20 [Interpretation] The next issue that has been revisited today is
21 the fact that the OTP referred us again to paragraph 689(c). However,
22 this time the OTP mistakenly referred you to page 236, which is the same
23 exhibit that I mentioned many times, Exhibit Z692.3. And we challenge the
24 authenticity of this exhibit. I will state once again that over 4.600
25 documents were introduced into evidence in this trial. Our Defence did
1 not challenge the authenticity of any other document but that one.
2 I would like to bring to your attention, Your Honours, that there
3 are about 70 orders of Blaskic in evidence in this case. All of his
4 orders, of the same character as this order, 692.3, ordering military
5 action, are very precise and very detailed. This unfortunate order,
6 692.3, I would like to locate it now. Here it is. Could we please place
7 it on the ELMO. Could I have the assistance of the usher, please.
8 Therefore, a brief order, like the one we see now, ordering
9 certain military action, did not come out of Blaskic's headquarters. We
10 saw about 70 orders of Blaskic introduced into evidence in this case, and
11 we haven't seen a single one resembling this one.
12 Second, comparing this order to the other 70 orders, comparing its
13 appearance, its typeset, and so on, we can see that it is completely
15 Third: In the military sense, it is simply impossible. It would
16 be senseless to order something like this. They are here ordering to the
17 Vitez Brigade to go to Sivrino Selo. First of all, nowhere in trial was
18 it mentioned, was it indicated in any document, in any testimony, that the
19 HVO had attempted to take Sivrino Selo. I am hereby urging the
20 Prosecution to search all of their databases to see if they can locate
21 this fact. This is impossible because this location was a stronghold of
22 the other army, and the HVO wouldn't have dreamed of trying to take it.
23 Second, this order was issued at 10.30, allegedly, at 10.30. As
24 you saw on the map, Ahmici is an area encompassing Santici, Pirici,
25 Nadioci and so on. From a military point of view, and this is a military
1 case, Your Honour, it would be completely senseless. It would be
2 analogous to me sending my forces to occupy Netherlands. This order does
3 not describe the assignment, the task given to the units. No other order
4 of Blaskic is so lacking in detail and precision.
5 I don't think we will need the ELMO any more. Thank you.
6 Fourth: This order was shown by the OTP to two witnesses:
7 Stipo Ceko and Bertovic, when they testified here, and that was the first
8 time the Defence saw that order. As I've said to you -- I'm a bit
9 unprepared now, so I cannot tell you about the exact reference in the
10 transcript. However, you can see it in our brief. Bertovic was very
11 firm, gave a very assured evaluation of that document, as did another
12 witness, witness Zuljevic. I've said a wrong name just a minute ago.
13 JUDGE SCHOMBURG: Sorry. Am I correct that you are referring to
14 footnote 1393 on this certain document, where it reads of this order:
15 "Anto Bertovic said in re-examination that it would require three strong
16 battalions to carry it out"?
17 MR. KOVACIC: Yes, exactly. And then further Bertovic explained
18 this. Basically, if I recall that correctly, he was surprised by the
19 document. The other witness as well.
20 [Interpretation] Therefore, in my view, due to questionable
21 authenticity of this document, it should be assigned no significance.
22 Even if we were to consider this document as authentic, it still does not
23 link Cerkez to any plan, because it is obvious that plan was devised prior
24 to the drafting of this document.
25 Another matter that I consider to be important is this: The OTP
1 does a very similar thing as the Trial Chamber. They are basically making
2 their inferences based on the events that transpired on the following day,
3 which means that they think that every plan was implemented the way it was
4 designed. I don't think that I need to point out to you how ridiculous
5 this view is, because this morning, what I planned this morning, did not
6 really unfold the way I planned it. This happens to all of us. So how
7 can we conclude that on the 16th of April, things transpired exactly as
8 they had been planned, and we don't know how they had been planned;
9 however, we know that they had been planned because of the way events
10 unfolded? I don't think that this is a proper conclusion. I think that
11 in order to conclude that there had been a plan, we need to have
12 convincing evidence.
13 JUDGE SCHOMBURG: Would this be an appropriate time --
14 MR. KOVACIC: Yes. Thank you.
15 JUDGE SCHOMBURG: -- for having a break? The hearing stays
16 adjourned until one hour and 30 minutes, half past 1.00. Thank you.
17 --- Luncheon recess taken at 12.30 p.m.
18 --- On resuming at 1.37 p.m.
19 JUDGE SCHOMBURG: Good afternoon. For the housekeeping, first of
20 all, the Chamber decided, based on the submissions by the Prosecution,
21 that the Chamber will accept hard copies of the charts prepared by the
22 Kordic Defence. However, this is not evidence. We don't attach any
23 probative value to this, and we are fully aware of the submission by the
24 Prosecution that it does not accurately reflect the judgement. It's only
25 a kind of assistance of recalling points made by the party. So therefore,
1 we need not attach any exhibit number, and it's for the Kordic Defence to
2 distribute these charts. Thank you.
3 And now we can continue, for the next 70 minutes, one hour and ten
4 minutes, with the Cerkez Defence responding to the Prosecution.
5 Mr. Kovacic, please.
6 MR. KOVACIC: Thank you, Your Honour, and I do hope that we will
7 be done before -- in shorter time than allocated to us. [Interpretation]
8 In fact, I can tell you, in brief, that I will need approximately ten
9 minutes to cover a few minor points in response to the arguments of the
10 Prosecution. Then my colleague Mr. Mikulicic will make a few points in
11 connection with the plan, in connection with the joint criminal enterprise
12 and intent. After this, I will speak briefly about sentencing.
13 In connection with document Z6923, which I have spoken about
14 extensively, I wish to make just two more points in connection with this
15 document. I wish to remind the Chamber that this document, as a exhibit,
16 was adduced as a exhibit after having travelled for about six years from
17 Bosnia to the Zagreb archives. There are no facts and there is no
18 knowledge as to where these HVO archives were during these six years. Of
19 course, we all believe that various intelligence services dealt with those
20 archives, but we have no evidence to support this. The fact is, however,
21 that these documents turned up in Zagreb in the year 2000, when the
22 government of Croatia, in January 2000, opened up the archives to the
23 Office of the Prosecutor, literally speaking opened, because for a while
24 the investigators of the OTP had access to these archives in the HIS
25 offices - this is one of the intelligence services of Croatia - after
1 which the Croatian government decided to remove the confidentiality of
2 all these documents and to entrust them to the national archives, where
3 the Prosecution continued its search of the documents, as did the
4 investigators of the Defence.
5 However, this was a difficult task for all of us. It was a bit
6 like playing bingo, because the archive had not been properly ordered and
7 classified, so that in the first box you might find a document in favour
8 of the Defence or the Prosecution, or you might go through 120 boxes
9 without finding anything. According to some information, this archive
10 was four kilometres long.
11 In any case, this document arrived from Zagreb - this we
12 know - and the Prosecution called a witness, an analyst, Mr. Prelec, who
13 spoke of the origin of this document, and we do not challenge that this
14 document was found in the Zagreb archive. However, this witness confirmed
15 two points: First, that he knew nothing of what happened to this document
16 before it turned up in the Zagreb archives, and he could not testify to
17 its authenticity; and secondly, this witness confirmed something that has
18 an effect on the entire procedure, and that is that most of the documents
19 found there by the Prosecution concerning the Vitez Brigade had been in
20 the possession of the Prosecution by May 2000, and yet these documents
21 were not disclosed to us.
22 So we are bringing up the equality of arms here. This document
23 was shown to two of our witnesses, first to Witness Bertovic, before the
24 testimony of AT, and Bertovic explained this document. I will not speak
25 any further about this document, but we abide by our assertion that this
1 document is not authentic. We raised this objection during the trial
2 itself, and along with these arguments, viewed analytically, as every
3 Trial Chamber or Appeals Chamber should, this document does not adhere to
4 the standard and is, therefore, suspect.
5 The second matter I wish to raise is that the OTP used a quote
6 from paragraph 612 of the judgement about the task of the Vitez Brigade
7 to prevent UNPROFOR from reaching Ahmici or other places. In our
8 response, I spoke briefly about this, but I now have to reiterate. This
9 was, in fact, stated by Witness AT. Your Honours know that we consider
10 this witness not credible, except insofar as he may have been in Ahmici,
11 but the rest of his testimony is not credible. This story was not
12 mentioned by any other witness. This was the only time we heard it.
13 Secondly, this statement is totally illogical and impossible.
14 That is to say, in view of the location of the roads and the other
15 elements in Vitez, there is no way that the Vitez Brigade could have
16 blocked the access of anyone to Ahmici or any other location, because
17 UNPROFOR had two large bases, one at the eastern side and the other one
18 at the western side of the town, so that even had a barricade been set
19 up, and Witness Bertovic denied it firmly, and it was stated that it was
20 Bertovic who held that barricade near the Impregnacija. So this, in fact,
21 does not hold water. It is so illogical that I can find no words to
22 describe it.
23 Let me mention that my learned friend, in connection with
24 Bertovic, who I believe was an impressive witness, as can be seen from the
25 judgement in several places, my learned friend said that Bertovic was
1 Cerkez's deputy, when in fact there is no doubt, from a large amount of
2 evidence, that Bertovic was actually the commander of a battalion in the
3 Vitez Brigade, and at that time, in April, it was the only battalion in
4 the Vitez Brigade, and he testified to this.
5 I have now come to a further argument, which was indirectly
6 mentioned today through quoting a paragraph from the judgement and was
7 put on the ELMO yesterday. This is document Z653. And yesterday I
8 mentioned that this document was on the ELMO countless times during the
9 Trial Chamber -- during the trial, and the Chamber did not draw any
10 conclusions from it. Bertovic testified about this document. I think he
11 said that he had drawn it up. But in any case, this document was, in
12 fact, an analysis of the mobilisation potential for the call-up of
13 soldiers, of conscripts, into the shifts that went to the defence line
14 facing the army of the Bosnian Serbs. And this was well known, that the
15 HVO used the principle of shifts to cover this area of defence against the
17 Bertovic, who was a major in the brigade, testified about the way
18 manpower levels were brought up to level in the shifts, and he had to
19 convince his commander, Cerkez, about the potential that he had at his
20 disposal, in theory, and, as he testified, it was always a problem for him
21 to put together a shift of 65 or 70 men, which was the number he needed.
22 Secondly, the Vitez Brigade has a number of documents concerning
23 this, up to this conflict, as part of the Stjepan Tomasevic Brigade, and
24 then later on, when it was established as the Vitez Brigade, its only task
25 was to maintain the lines facing the VRS. It was never either organised
1 or trained or in any way prepared for fighting in a built-up area.
2 I would also like to say that, as I said before the break, there
3 is no other piece of evidence to show that Sivrino Selo was a target of
4 the HVO in any way. My learned friend, during the break, reminded me
5 that AT stated this, that the Vitez Brigade had such aspirations or that
6 the military police was in Sivrino Selo. In any case, Sivrino Selo was
7 mentioned as a location of HVO activity.
8 To this, I have to respond. I'm correcting myself now. It was
9 mentioned apart from order 693. However, this was stated by a witness
10 whose testimony we challenge. We challenge its credibility. And
11 secondly, it was the only such piece of information. And in any case,
12 nothing actually happened in Sivrino Selo, however, that may be, and it
13 was not the scene of any crime. This was, however, a occasion for the
14 Prosecution and the judgement to construct conclusions to the effect that
15 the Vitez Brigade was present in various locations, including even Sivrino
16 Selo, overlooking Ahmici. However, there is only one piece of evidence to
17 show this, and Witness AT, but we find that there are insufficient grounds
18 for this conclusion.
19 Further, I think that this is an appropriate place, in view of the
20 Prosecution argument about the legal status of Cerkez in connection with
21 the crime in Ahmici. I will draw attention to the constantly shifting
22 charge against Cerkez in relation to the crime in Ahmici. I wish to say
23 that the Prosecution is continuing to do this during the appeal
24 proceedings, and this is making it much more difficult for Cerkez to
25 defend himself against this charge. This is the way it has been in this
1 case from the first day. My colleague Mr. Sayers mentioned the
2 moving-target theory, and this is one example of it.
3 The situation was as follows: In the amended indictment, the
4 Prosecution states that Cerkez was directly involved in the crime in
5 Ahmici. This follows from counts 5 and 6, 4 to 12, 40 to 42, and 42 to
7 In his opening statement at the start of trial, the Prosecutor,
8 pages 95, 96, and 31 of the trial transcript, alleged two things. First,
9 they said that the HVO perpetrated the crime in Ahmici, and two units
10 were specifically mentioned by name, but the Vitez Brigade was not
11 specifically mentioned. So the Vitez Brigade was not included in this
12 part of the opening statement when the Prosecution was putting forward
13 its case and when we began to understand what charges we had to defend
14 against, in view of the vague indictment.
15 Further, during the Prosecutor's case in chief, the Prosecutor
16 continued attempting to prove that the Vitez Brigade participated
17 directly in the operations of the 16th of April in Ahmici and offered a
18 quantity of evidence to support this. Just before the end of the Defence
19 case in chief, on the 12th of October, 2000, page 26518 of the transcript
20 forward, there are two statements I wish to draw attention to. I will
21 read the quotations.
22 [In English] "Cerkez was involved with his men in part of an
23 overall plan, but was not the particular brigade going in first thing in
24 the morning to kill all the people in Ahmici."
25 [Interpretation] And secondly:
1 [In English] "Once dirty work is done, it may be that the Viteska
2 Brigade was brought in to secure positions, no incompatibility at all."
3 Let me mention this this was stated on the 12th of October, on
4 the eve of the testimony of AT. Why? In order to make this witness
5 credible. So suddenly the Prosecution case has changed.
6 In the rebuttal case, the Prosecution did not change its
7 arguments, so we assume it abided by what was just stated. And in the
8 closing brief, the same standpoint was retained, more or less, because it
9 was said that the Vitez Brigade, under Cerkez's command, was not involved
10 in the operation in Ahmici, but he, Cerkez, was part of the plan and
11 played a role. That's paragraph 252 of the closing brief of the Office
12 of the Prosecutor.
13 And now we come to the appeal. In the Prosecution appeal, they
14 go back to square one and they say that the Vitez Brigade directly
15 participated in the crimes in Ahmici on the 16th of April, 1993. Of
16 course, we have always had the same defence, more or less, but this has
17 become very difficult for us, because every time there is a different
18 description of the crime, and at one point some pieces of evidence may
19 seem irrelevant to us, in view of the Prosecution case, and then suddenly
20 they become very important. But we did not challenge those pieces of
21 evidence on time because we weren't prepared to do so.
22 Responding to the Prosecution arguments about Cerkez's alleged
23 participation in the crimes in Ahmici, I suggest that this ground of
24 appeal be rejected and that its merits be not discussed at all, because
25 just before the end of the trial, the Prosecution explicitly abandoned
1 the thesis that Cerkez's unit was in Ahmici. According to continental
2 law, I can only understand this as a change of the indictment, an
3 amendment of the indictment. And in essence, it was an amendment of the
4 indictment, because just before the end of the trial, on the 12th of
5 October, the Prosecution shifted its argument that the Vitez Brigade had
6 been in Ahmici, only to go back on this at the start of the appeal.
7 Therefore, we submit that the Appeals Chamber should consider dismissing
8 this ground of appeal without discussing its merits at all.
9 I now wish to give the floor to my colleague, Mr. Mikulicic, and
10 then after he has spoken, I will speak for a further five minutes on
11 sentencing, if there are no questions, of course.
12 JUDGE SCHOMBURG: Mr. Mikulicic, please.
13 MR. MIKULICIC: Thank you very much, Your Honours.
14 [Interpretation] Your Honours, in this courtroom, above all of us,
15 there is a plan looming above our heads, and it is from this plan that
16 all the evils emanate for which we are all sitting here anyway. Now,
17 this reminds me a little bit of a thesis whereby everything is God's
18 will around us, although we can't see it, although it has not actually
19 been established and proved, but it is there looming above us somewhere.
20 But let's return to some facts.
21 The Prosecution claims that our client, our defendant, was part
22 of a criminal enterprise which was based and founded with the objective
23 of persecuting the Muslim people in Bosnia-Herzegovina, and the plan was
24 made more concrete at that meeting of the 15th of April, 1993, that
25 questionable meeting at the headquarters of Colonel Blaskic.
1 We have already heard arguments as to the evidence that indicates
2 that, one point, that the meeting was held at all; two, who was present at
3 that meeting; and three, what the conclusions and decisions at the
4 meeting were. I say with full responsibility once more that in the
5 presentation of evidence, not a single shred of evidence or proof was put
6 forward which would, without any doubt, speak to the fact that -- or,
7 rather, what the subject of the meeting was, who it was who attended that
8 meeting, and what kind of decision was made at the meeting.
9 Let me go back to the Krnojelac judgement for a moment, in which a
10 standard was set, or rather, what the Prosecution had to prove, the
11 rationale for it to be assumed that this type of crime and liability
12 existed. The conditions are, of course, cumulative. The Prosecution has
13 to prove what plan there was, what the purpose of the plan was. It must
14 identify the other participants or, rather, perpetrators, and it must
15 prove a concrete category of crime for which the person accused is being
17 I should like to remind you here of the standard used in the
18 Krstic judgement as well, where it is expressly stated that the mere fact
19 that somebody was present in a locality is not sufficient for one to
20 conclude on that person's liability and that that person should be held
22 In his introduction, my learned colleague of the Prosecution
23 refers to paragraphs 703 and 831 of the judgement, in which the Trial
24 Chamber, in fact, claims that it cannot conclude beyond reasonable doubt
25 as to the responsibility of our defendant with respect to the crimes in
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Ahmici, and because of that, it finds our client not guilty on that
2 count; it acquits him.
3 Now, what does my learned colleague do? He reinterprets this
4 position from the judgement by the Trial Chamber, and he does so in the
5 following way: He draws the reverse conclusion and, in fact, establishes
6 the existence of a plan and, once again, accountability and responsibility
7 of that on the part of my client.
8 If we look at the initial indictment, the original indictment, we
9 will see that the indictment deals with various concepts, such as aiding
10 and abetting in the perpetration of a crime, but not in a single section
11 is this category of accountability within the framework of a joint
12 enterprise mentioned. The judgement itself in paragraph 397, for example,
13 refers to the doctrine of the common purpose and the various forms of
14 aiding and abetting within that context. These are not categories which
15 mean the same thing and are of the same order. They are not identical.
16 Here I should like to refer to the Blaskic judgement, paragraph
17 288, where it is stated that a distinction must be made between aiding and
18 abetting and a common purpose or joint plan.
19 I should once again like to refer to the Krnojelac judgement dated
20 the 15th of March, 1992, paragraph 75, in fact, of that judgement, by
21 states the following: "An individual who just aids and abets the
22 perpetrator must be conscious of his intention for a crime to have taken
23 place, whereas the participant in a common enterprise or according to the
24 common purpose doctrine, must share intent. That is to say, he must share
25 the intent of the prime perpetrator or as it is said in the original, the
1 principal offender."
2 Therefore, I claim, I put it to you that there is no evidence and
3 proof in this trial which would lead us to conclude, A, that our defendant
4 was present at the meeting at all where this common plan was established;
5 and B, that there is no proof or evidence that any such plan existed, that
6 any plan was decided upon; and C, that there is no evidence or proof that
7 my defendant, even if he was at the meeting and if a joint plan was
8 devised, that he shared intent with the rest of the participants.
9 It is true that when it comes to the existence of a plan of this
10 kind, we can make an opposite conclusion. We can conclude vice versa
11 through various forms of perpetration of crimes, various crimes committed,
12 in fact, which become a standard method of committing those acts.
13 However, let us take a look at what happened in our case.
14 The focal point is, of course, the crime in Ahmici, or rather, the
15 central factual point, and, without doubt, a war crime had been committed,
16 where a military operation escalated in such a way that innocent civilians
17 were killed, women and children, in the basements of their houses, where
18 they had hidden and taken shelter during the fighting and the battles and
19 military operations that were going on all around.
20 This form, or rather, these consequences, are not to be found in a
21 single other event in the Lasva River Valley. Ahmici is truly an isolated
22 case. They are a very unfortunate incident, a terrible war crime, for
23 which, without any doubt at all, the perpetrators must receive their due
24 sentence and be punished, but among them is not my defendant.
25 You have heard the arguments put forward about where the tempore
1 acti lies and where my defendant was, where he was physically present.
2 You have heard arguments put forward which the Defence used to refute the
3 position taken by the Prosecution with respect to the existence of a
4 common enterprise or common crime and common purpose doctrine, and it is
5 up to you, Your Honours, to reach your own decisions. I consider that the
6 Trial Chamber, in this part, when it came to responsibility for the crimes
7 in Ahmici, made the right decision and that there are no relevant
8 arguments which would indicate that you should draw different
9 conclusions. And I will complete my part of the response here to the
10 Prosecutor's appeal. If there are any questions, I shall be happy to
11 answer them, of course.
12 JUDGE SCHOMBURG: There are no questions. Thank you for your
13 submission. Then I take that it that Mr. Kovacic wants to finalise.
14 MR. KOVACIC: Yes. Thank you, Your Honour. I will be very, very
15 brief. First I would -- sorry. I will speak Croatian. It's easier.
16 [Interpretation] First of all, for the record, I would like to say
17 that we fully stand by our written appeal, what we set out in writing,
18 especially with regard to sentencing, and we have nothing to add on that
19 score. In that respect - and we discussed this earlier on - we filed a
20 brief of the 4th of May, and we personally consider that this is a good
21 development in our proceedings and practice because, quite obviously, one
22 of the criteria in weighing up the sentencing must be individualisation of
23 the sentencing and punishment.
24 So I wish to state loud and clear that we fully agree, more or
25 less, with standard court practice, especially where it is claimed that a
1 sentence is weighed up once all the elements of prevention are taken into
2 account, accountability, and the severity of the crime committed, and
3 after that, the individualisation of the sentence is resorted to, once all
4 the other elements have been taken into consideration, and those other
5 elements are mitigating elements or the reverse, aggravating. So we agree
6 with these basic principles and we trust that the Appeals Chamber will try
7 and strike the right balance. Of course, it is not an easy thing to do.
8 Now, in our motion or brief of the 4th of May, we wanted, in fact,
9 to focus on two aspects. One is what the Pre-Appeals Judge gave us the
10 opportunity of doing, that is, presenting personal data and family data
11 about our defendant. And I must say, I took this in a little broader
12 sense, because I feel that every individual is the product of his
13 background and origins, and so it was along these lines that I made free
14 to add certain elements which I think speak to the character of the
16 We have heard the position of the Prosecution on that score.
17 Nonetheless, I do think that these are elements that the Appeals Chamber
18 must have before them so that you can make the right decision, not only
19 with respect to mitigating circumstances but also the scope our client has
20 to improve. And in modern criminology [as interpreted], the aspect of
21 reform is gaining in importance. I'm not going to look into the
22 literature at this point. I don't think that is necessary.
23 But, for the record, it says "modern criminology." I said "modern
24 penology." So may that be put right, please.
25 Also, that reminds of conclusion 470 of the judgement, and I'd
1 like to draw the Court's attention to this, in which certain facts about
2 the accused were set out, and, among other things, it says that many
3 Prosecution witnesses and a number of Defence witnesses spoke positively
4 about the defendant with respect to the absence of prejudice or bias. And
5 this section mentions Colonel Stewart in particular, a Prosecution
6 witness, who gave a positive assessment of the accused's character and
7 said that he was an apparently decent and honourable man, referring to
9 I don't want to make any capital out of this, but I would like to
10 indicate for Your Honours point 21 of the brief. And in Cerkez's wish to
11 show that he has reformed and in his wish to contribute to having the
12 truth prevail about the sad events that took place in the Lasva River
13 Valley, he offered us, or rather, offered the Prosecution that he be a
14 witness in the Hadzihasanovic trial, because he read about certain events
15 in that indictment which he feels he can testify about, and he also
16 offered to give certain expertise to the Prosecution in the legal
17 understanding of documents and placing certain events within the context
18 of the overall situation.
19 This proposal on his part was, unfortunately, rejected. And once
20 again, in Cerkez's brief with respect to his conduct, it shows that he is
21 a individual who is ready to respect the law and rules and regulations and
22 conventions which apply to him and around him, to the world around him,
23 and this is being borne out today with the letter by the Detention Unit's
24 head, and I think it is a valuable contribution to that. I don't think it
25 was a letter written routinely. I think it was written very well. Every
1 word was well-balanced, and I must also say that it is well known that the
2 head of the UN Detention Unit, Mr. McFadden himself is a highly respected
3 and recognised expert in the field of penology today, and Cerkez knows him
4 personally, he has known him for seven years personally. Let me also
5 remind you that Mr. Cerkez reached the Detention Unit at a time when it
6 was a relatively small circle of accused, when there were not many accused
7 there, and when the administration of the Detention Unit had ample
8 opportunity to get to know each of the inmates very well and to understand
9 them. Of course the situation today is somewhat different because it has
10 burgeoned and grown in size.
11 I hope that with having said those main points that I have said
12 everything, but just allow me a few more words and a few more minutes of
13 your time if I may to say the following:
14 In view of the multitude of arguments put forward in this case,
15 especially legal arguments, I should like to ask the Chamber to bear in
16 mind in conformity with the beneficium cohesionis which in the Kupreskic
17 appeal was recognised, and when I say that I mean that Kordic's Defence
18 has presented several important points with respect to legal
19 qualifications and that there is no collision among our defence cases and
20 Defence positions and that everything that was put forward to the
21 advantage of the accused, Mr. Kordic, can be used for the defence of Mr.
22 Cerkez as well, if you accept the basic premises, of course. And with
23 respect to sentencing, a now more words. I propose that the Court should
24 weigh up the sentence and sentence our accused according to whatever they
25 have heard, and I'm sure that points 35 and 44 of the counts in the
1 indictment will be dropped, and I am sure that the double culpability
2 pursuant to Article 7(1) and 7(3) will be dropped in all counts of the
3 indictment from 3 to 44, and I propose that the Court, with respect to
4 this substantially reduced accountability, that this should be reflected
5 in the sentence and the sentence reduced as well. Of course, if we have
6 succeeded in putting forth our appeals case, we would be happy to see the
7 overall sentence lowered as well.
8 Thank you and I am prepared to answer any questions.
9 JUDGE SCHOMBURG: There are no questions. Thank you. Then we can
10 continue immediately with the response by the Kordic team. And as
11 allocated previously, you have no doubt 30 minutes to go for your
13 MR. SAYERS: I might confess that is a considerable relief to find
14 out, Your Honour.
15 Let me start by saying that we believe that the appropriate
16 approach to take at this stage is not to dwell in the realm of generality
17 but to focus on really four things: What is the standard of review? What
18 are the Trial Chamber's findings? What is the evidence? And what were
19 the Trial Chamber's conclusions? And from all of that, the question has
20 to be asked whether the Trial Chamber has committed error in assessing a
21 extremely severe 25-year sentence. Our respectful submission is there was
22 no error.
23 The burden is on the Prosecution to show a discernible error in
24 the exercise of the Trial Chamber's sentencing discretion. And our
25 respectful submission is it has not even come close to doing so.
1 It must be remembered that Mr. Kordic was acquitted on all of the
2 Article 7(3) charges. This was a full-throttle Article 7(3) case, and no
3 effort was spared in an attempt to prove that Kordic wielded military
4 powers. The conclusion of the Trial Chamber was that he did not.
5 One of the principal military witnesses from the Prosecution,
6 Lieutenant Colonel Stewart, the BritBat commander of the Vitez area,
7 specifically stated that he did not think Kordic had personally been
8 involved in war crimes. The Trial Chamber disagreed. Yet nonetheless,
9 the Prosecution now asks the Appeals Chamber to increase the sentence
10 because of Kordic's asserted position, powers, and responsibilities. The
11 submission is that effectively, he did have the powers of a military
13 The Trial Chamber, on the other hand, found that this was not a
14 commander. Mr. Kordic was not a superior. I've been before, I've gone
15 over this recitation before. I'm not going to repeat everything, but most
16 important thing is that the Trial Chamber concluded that he was a regional
17 political leader. He lacked effective military control over HVO forces.
18 He was not in the highest echelons of leadership of the Bosnian Croat
19 political institutions. He did not conceive of this campaign of
20 persecution that the Trial Chamber found, nor was he the architect of it,
21 nor was he a prime mover in it.
22 The standard of review as I have put on the screen here is
23 uncontroversial. It's the obligation of the appellant to demonstrate a
24 discernible error and as long as the Trial Chamber keeps within proper
25 limits the Appeals Chamber will not intervene.
1 It's the obligation of Trial Chambers to individualise the
2 penalties that are assessed in the cases before them, and that's a
3 obligation imposed by Article 24(2), given that the decision is, in a
4 particular case, discretionary and it turns on the circumstances of a
5 particular case. That's why it's not useful particularly to compare
6 sentences between accused in different cases, and that's the current
7 status of the Appeals Chamber's jurisprudence.
8 The burden of proof is absolutely upon the appellant to
9 demonstrate how the Trial Chamber has ventured outside its discretionary
10 framework. So that's what the -- the Prosecution has to prove in this
12 Its first argument, the Trial Chamber somehow committed a error in
13 failing to take into account properly the gravity of the offences. Yet
14 the two paragraphs shown on the screen here show that that's precisely
15 what the Trial Chamber did do. The starting point for the consideration
16 of sentence is the gravity of the offence, and the most important
17 consideration in sentencing is the gravity of the offence. So it's a
18 uncomfortable position for the Prosecution to advance here to say that the
19 Trial Chamber failed properly to take into account the very factors that
20 the Trial Chamber said it took into account.
21 The next position is that the Trial Chamber somehow failed to
22 take -- to give due weight as a aggravating factor, and I emphasise that,
23 to Kordic's positions, powers, and responsibilities. The thesis seems to
24 be that Kordic had a high position of political leadership, but it's never
25 really specified what that position was; that he had a role in military
1 matters, again, it's never specified what that role was; that he carried
2 out attacks and exerted military authority; that he had a very important
3 position. Once again, Your Honours, dwelling in the realm of generality.
4 The Prosecution submits that the Trial Chamber committed error in
5 failing to give due weight to Kordic's position as a political leader, but
6 look at paragraph 853 before you. The fact that he was a leader
7 aggravates the offences. Again, the very factor the Prosecution says the
8 Trial Chamber erred in failing to assess properly was the very factor that
9 the Trial Chamber assessed. The law of aggravating factors is perfectly
10 clear in this Tribunal. The obligation is upon the Prosecution to prove a
11 aggravating factor beyond a reasonable doubt when it relies upon
12 aggravation to enhance sentence. So in trying to prove military powers
13 and political powers, it's the obligation of the Prosecution to prove
14 those powers to the extent that it argues that they they're aggravating
15 factors beyond a reasonable doubt. Again a very uncomfortable position
16 for the Prosecution to assert given the acquittal by the Trial Chamber of
17 Mr. Kordic under Article 7(3), an acquittal which we in our respectful
18 submission was absolutely inevitable given the evidence which I'll go over
19 in just a minute.
20 Kordic's position as the vice-president of the Presidency of the
21 HZ HB. What military powers did this position have? None. None
22 whatsoever. What powers did it have? Well, the powers of a
23 vice-president of the Presidency were purely parliamentary and how do we
24 know that? Two things. First, the Prosecution's own constitutional law
25 expert, Dr. Ciril Ribicic stated precisely that. Second, Dr. Ribicic
1 explained that the Presidency of the HZ HB consisting not simply of the
2 president, two vice-presidents, Bozo Rajic and Mr. Kordic, a secretary,
3 Mr. Kostroman, and 31 heads of HVO civilian municipalities, that was the
4 Presidency, that was the legislature of this nascent organisation.
5 All of the constitutive documents, Your Honours, comprising the
6 HZ HB, all the documents that explained how the institutions of the HZ HB
7 worked were before the Trial Chamber, D181/1. Including the code of
8 practice on the work on the Presidency which showed that the powers of the
9 vice-president in the absence of the president of the Presidency being
10 present were things like allocating the amount of time given to a person
11 to speak. These were purely parliamentary powers.
12 The vice-president of the Presidency had no military powers and
13 Dr. Ribicic again conceded this. Mate Boban was the president of the
14 HZ HB. He was the Supreme Commander of the HVO. And indeed none other
15 than Perica Jukic who was the deputy Prime Minister of the HR HB confirmed
16 the importance of distinguishing between those two offices.
17 If I may request a brief private session.
18 JUDGE SCHOMBURG: Private session, please.
19 [Private session]
12 Page 630 redacted, private session
6 [Open session]
7 JUDGE SCHOMBURG: Confirmed. You may continue.
8 MR. SAYERS: Thank you, Your Honour. General Blaskic's second in
9 command, Major General Filipovic:
10 Q. Did Mr. Kordic have any military duties?
11 A. As far as command and control system are concerned,
12 he was not involved at all.
13 Q. Colonel Palavra, the commander of the military
14 police. I know we've been over this but it bears going over one more
15 time. Who appointed Colonel Palavra to his position?
16 A. It was General Blaskic.
17 Colonel Palavra testified that the military police were
18 subordinate to the command of the Central Bosnia Operative Zone in the
19 normal vertical hierarchical fashion that one would expect in the chain of
20 command. Colonel Palavra testified that he received his orders from his
21 superior, Colonel Tihomir Blaskic.
22 Q. You received your orders strictly from the commander
23 of the Central Bosnia Operative Zone, Colonel Blaskic; correct?
24 A. It is.
25 And the Appeals Chamber will remember this, this was a Court
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 witness summoned by the Trial Chamber.
2 Q. Did you ever take any orders directions or
3 instructions from Dario Kordic ever?
4 A. Your Honours, no, never.
5 Said Colonel Palavra. No one has ever suggested that the Jokers
6 were ever under the authority or command in any way of Mr. Kordic, he
7 agreed. He also agreed that that also included his deputy
8 Vladimir Santic, a person who never tried to contend to Colonel Palavra
9 that Mr. Kordic was in any way involved with the military police.
10 And then finally the proposition was put to Colonel Palavra by me
11 that Mr. Kordic had no command authority whatsoever, any kind of superior
12 subordinate relationship with the military police. I asked him to agree
13 with it and he said: "I would agree with this." This or that is how it
14 was. And as I said yesterday, that is indeed how it was.
15 Colonel Vukovic, the predecessor to Pasko Ljubicic: "I never
16 received orders from political figures at any time. I had my own chain of
18 Cease-fire negotiations. If Mr. Kordic was such a significant
19 figure, a integral figure involved in the chain of command who had to give
20 the green light to military operations, the Appeals Chamber may well ask
21 itself, why was this person not involved in any cease-fire negotiations.
22 Consider this testimony, Your Honours. Lieutenant Colonel Stewart, with
23 respect to the Novi Travnik fighting: "No one asked Kordic to attend
24 or thought it would be important for him to attend the cease-fire
1 "Correct. I wanted Blaskic there every time," insisted Colonel
2 Stewart, the BritBat commander on the ground.
3 We've explained and shown to the Appeals Chamber how the military
4 chain of command worked in the expected routine hierarchical fashion that
5 is normal in military organisations. D83/1, D84/1, and Exhibit Z715 show
6 exactly how the chain of command worked, ironically in April of 1993, from
7 the Supreme Commander who issues cease-fire orders as a result of a
8 agreement with Mr. Izetbegovic, passed down to the Main Staff. The Main
9 Staff receives those orders. Those orders are passed down to the
10 Operative Zones and in the case of Exhibit Z615, the Operative Zone
11 commander of that zone, General Blaskic, issued orders to all of the
12 subordinate brigades under his command, including the military police.
13 THE INTERPRETER: Would the counsel please slow down. Would the
14 counsel please slow down for the interpreters.
15 MR. SAYERS: It's very simple, and again we're informed of this by
16 Lieutenant Colonel Stewart. We didn't need him, Kordic, to attend because
17 we had the military commander's representative there.
18 Did Mate Boban, the president of the HZ HB ever delegate any
19 military authority to anybody? Again the evidence on that is
20 uncontroverted. No. And it came from Srecko Vucina who was the head of
21 the office of the president.
22 I'd like to take a temporary detour to remind the Appeals Chamber,
23 I'm sure it does not need to be reminded in detail, but to raise the issue
24 that significant influence of a civilian is not in itself sufficient to
25 result in the imposition of criminal liability without evidence that the
1 civilian superior somehow had the ability to exercise control over
2 military forces. This is recognised in the judgement, and indeed,
3 paragraph 424 of the judgement is a accurate recitation of the law. In
4 the case of civilian leaders, evidence of perceived authority may not be
5 sufficient. It may be indicative of mere powers of influence in the
6 absence of a subordinate structure. As the Naletelic Trial Chamber put
7 the question poignantly, the question for a Trial Chamber and for this
8 Appeals Chamber is the actual possession or non-possession of the power to
9 control, yet here we have a finding from the Trial Chamber in paragraph
10 840 that there was no power on the part of Mr. Kordic to control HVO
11 forces, and I might emphasise to the Appeals Chamber that this is a
12 finding that has not been appealed by the Prosecution, and given the
13 evidence we've just reviewed, it is Kordic's submission that that's for
14 very good reason. Any appeal of that particular finding would be a dead
15 duck from the -- from the starting post.
16 Let's take a look at the HVO. What position did Mr. Kordic
17 exercise in the HVO? Again, the evidence on that is uncontroverted. He
18 had no position in the government of the HVO. The Prime Minister was
19 Dr. Jadranko Prlic. There were three vice-presidents, Stipo Ivankovic,
20 Kresimir Zubak, and Anto Valenta. So what position did Mr. Kordic occupy,
21 if any, within the HVO? Again the evidence on that is clear. He was on
22 the personnel committee of the HVO, a five-person committee headed up by
23 the justice minister of the HZ HB, Zoran Buntic, and as you can see from
24 the testimony on the screen, Mr. Buntic's testimony was that as far as he
25 could recollect, that committee never met.
1 May I have one more closed session for two minutes.
2 JUDGE SCHOMBURG: Yes, please.
3 THE REGISTRAR: Private?
4 JUDGE SCHOMBURG: Private session, please.
5 [Private session]
16 [Open session]
17 JUDGE SCHOMBURG: Confirmed. Please continue.
18 MR. SAYERS: Next position, president of the HDZ-BiH in Busovaca.
19 True as far as it goes. He no longer occupied that position after April
20 of 1992, and in Mr. Kordic's submission, the post that he occupied prior
21 to April 1992 is of no material significance whatsoever to any of the
22 findings made by the Trial Chamber or to any of the facts in this case.
23 It was explained by Niko Grubesic that in fact after his
24 resignation from that position he was replaced by Florijan Glavocevic for
25 a brief time who was succeeded by Zoran Maric of the HDZ-BiH in Busovaca.
1 Mr. Kordic attended meeting of the municipal government very
2 seldom according to Niko Grubesic.
3 President of the Travnik regional community. What was it? There
4 was very little evidence presented by the Prosecution on what that was or
5 what the powers of its president were. There was no proof at trial of
6 what those powers were. It looks to have existed for just a few months
7 and to have been a fairly informal organisation.
8 Regional political leader in Central Bosnia. Well, this is sort
9 of interesting. As the Appeals Chamber will recall, one of the proposals
10 for peace in Central Bosnia was the Vance-Owen Plan which divided up
11 central -- actually, all of Bosnia-Herzegovina into various cantons, and
12 there was a structure proposed for a interim provincial government with a
13 governor, a deputy governor, and then a governing council. In canton 10,
14 the canton comprising Central Bosnia, there was a ten-person interim
15 government structure proposed. If Mr. Kordic was the regional political
16 leader in Central Bosnia, it might be expected that he would have been the
17 proposed governor, but in fact he was not. The proposed governor was
18 actually the mayor of Bugojno, Vladimir Soljic. Mr. Kordic was simply one
19 of five Croat members of the proposed interim provisional government.
20 There were four Muslim members of the proposed interim provisional
21 government as I recall, and one Serb.
22 Vice-president of the HR HB. This is perhaps the most baffling of
23 the Trial Chamber's actual findings because it's not based on any
24 legitimate evidence for the reasons I will go into right now. No such
25 office existed and the Prosecution's constitutional law expert testified
1 to that. Dr. Ribicic was asked to agree that there was no such office,
2 such as there has been in the HZ HB, and he said: "That's right, yes."
3 Again, it fell to Kordic to put all of the constitutive documents
4 relating to the foundation and organisation of the HR HB before the
5 Trial Chamber which he did. That's the exhibit D183/1 series. No office
6 of vice-president provided for.
7 Dr. Ribicic also acknowledged that Mr. Kordic was not a member of
8 the HR HB government, nor was he a member of the presidential council. In
9 fact, Perica Jukic who was a member of that council stated specifically
10 that Mr. Kordic had no role in the government of the HR HB other than
11 being one of the legislators. Yet the judgement finds Kordic to be a
12 vice-president, paragraph 761. Why? It relied exclusively upon a ECMM
13 document, Exhibit Z 1311 prepared by Colonel Stutt in the Travnik
14 reporting centre. Colonel Blaskic had supposedly told Colonel Stutt that
15 Kordic was a vice-president, but when asked at trial whether he was,
16 Colonel Stutt said: "Well, that's difficult to answer." His information
17 came from Colonel Blaskic and Colonel Blaskic, then Colonel Blaskic
18 admitted to Colonel Stutt that he -- that Blaskic was not a politician, he
19 hadn't followed the political process closely and he was just a soldier.
20 And there was other confirming evidence, D143/1 on that. And
21 Colonel Stutt actually conceded, well, we didn't really know what Kordic
22 was. Sometimes it's embarrassing to ask someone what he is.
23 So what was the error regarding aggravation here? What was proved
24 beyond reasonable doubt such as to amount to an aggravating factor?
25 Nothing. And indeed the only aggravating factor was the aggravating
1 factor found by the Trial Chamber that Mr. Kordic was a political leader
2 and paragraph 853 makes it perfectly clear that the Trial Chamber took
3 that into account.
4 With respect to the increased -- the relatively longer sentence of
5 General Blaskic, we have no particular submissions to make other than to
6 remind the Appeals Chamber of what we've said about this in our brief,
7 that the two cases are different. Colonel Blaskic was held liable under
8 Article 7(3). The period under which he was held liable was longer. He
9 was held liable for more offences such as the Stari Vitez truck bomb, the
10 attack on Grbavica. He was found liable for all of the offences that took
11 place in the Kiseljak area. He was indeed the military commander of the
12 entire area, and we simply rely upon the long line of authority and I'm
13 sure that the Appeals Chamber is well aware of it. It's most recently
14 summarised in Krstic just a month ago, that it's inappropriate to set down
15 a definitive list of sentencing guidelines for future reference given that
16 the imposition of sentence is a discretionary function that differs from
17 case to case.
18 In conclusion, Your Honours, it's our respectful submission that
19 there's no discernible error here. There's been no showing of an abuse of
20 discretion. The very heavy sentence imposed upon Mr. Kordic, assuming
21 that all of the facts as found, whatever they were, in the judgement and
22 assuming that all of the offences upon which he was convicted are
23 factually justified which in our respectful submission they most certainly
24 were not, then there's simply no demonstrated discernible error and no
25 demonstrated abuse of discretion.
1 Thank you.
2 JUDGE SCHOMBURG: No questions. I thank you for the contribution.
3 Let us have the final break in this case now and after the break we will
4 have 30 minutes of reply by the Prosecution and as scheduled, both accused
5 will have the opportunity, of course optional, if they so want, to address
6 the Appeals Chamber. We reconvene a quarter past three.
7 --- Recess taken at 2.50 p.m.
8 --- On resuming at 3.24 p.m.
9 JUDGE SCHOMBURG: Please be seated. And the floor is open
10 immediately for the Prosecution.
11 MS. BRADY: Yes. Thank you, Your Honour. Your Honours, I have
12 only a few brief points that I wish to make in reply. Firstly, we are
13 perfectly cognisant that we have a heavy burden. We understand completely
14 the burden that we have on the standard of review for an appeal on
15 sentence, and our arguments that the sentence imposed was manifestly
16 inadequate was aimed at demonstrating that the Trial Chamber had made this
17 discernible error in the exercise of its sentencing discretion by imposing
18 this 25-year sentence, and the three bases were the gravity point,
19 including his role, and of course, by failing to take into account his
20 political leadership, together with the military authority that he so
21 obviously wielded in the region.
22 And not for one moment can our position be seen as inconsistent
23 with our equal recognition of the principle that Trial Chambers exercise a
24 considerable amount of discretion in determining an appropriate sentence
25 or the recognition of the principle of individualisation of sentencing.
1 Briefly on his arguments about gravity. Our main point, of
2 course, is that despite the references, despite the reference in the
3 judgement to the gravity of these crimes, and Kordic's criminal
4 culpability, in our submission, the very sentence imposed shows that the
5 Trial Chamber only played lip service to the gravity concept in sentencing
6 him, and I rest completely on the submissions we made this morning in our
7 appeal, as well as in our reply brief.
8 Turning to the second basis, the positions and powers and his
9 abuse of those positions and powers. Most of his arguments today were
10 concentrated really on just an attempt to re-litigate the factual findings
11 which were found by the Trial Chamber, and the point of our appeal that
12 this is an aggravating factor, we based our sentence appeal on the factual
13 findings as found by the Trial Chamber, both as to the contours of his
14 political leadership and most importantly the parameters of his military
15 authority or influence as found by the Trial Chamber. And I briefly
16 referred this morning to the findings of the judgement. I'd also like to
17 refer Your Honours to our lengthy description of these powers, positions,
18 which we set out in our Prosecution Appeal Brief at pages 58 to 64, which
19 set out the concrete and specific findings on his position, powers, and
20 responsibilities and the role he was able to play as a result.
21 And what Mr. Sayers did this afternoon was basically to refer to
22 matters or to evidence which was considered by the Trial Chamber and
23 rejected in reaching its actual factual findings. And especially when it
24 came down to the question of his military authority. Again, I can't
25 stress more highly our sentence appeal is based on the Trial Chamber's
1 very own factual findings as to his role in military matters, and it isn't
2 that we haven't failed to grapple with the difference between 7(1) and
3 7(3) responsibility, and nor is it an attempt by us to try and appeal his
4 acquittal for 7(3) responsibility.
5 When you come to consider the majority of his arguments this
6 afternoon, we're not asking you to consider in aggravation of his criminal
7 conduct any notion which is linked to his failure to prevent or punish
8 crimes committed by soldiers under Blaskic's command. Our point is
9 different. The principle underlying why a commander should, under 7(3),
10 bear a higher sentence is equally apposite in a case like this when he
11 holds a position of superior political authority and especially when he
12 also exercised significant military authority and abused that position
13 that those powers, by playing the role that he did in the planning and the
14 ordering of the crimes.
15 THE INTERPRETER: Could counsel please slow down. Thank you.
16 MS. BRADY: I'm sorry.
17 On this basis, Your Honours, you should find irrelevant all of his
18 submissions this afternoon regarding the evidence that he drew your
19 attention to, the witnesses he referred you today, Filipovic, Palavra,
20 Vukovic, because their evidence went to the question of his military
21 command in a sense of military duties, de jure sense.
22 The Trial Chamber's findings as to his military authority, and we
23 see the combination of this in paragraph 767, supported by paragraph 768,
24 they're not the same as its findings on his military duties, which these
25 witnesses attested to. And again, I refer you to all of the concluding
1 factual findings the Trial Chamber made about his military authority. And
2 they're all throughout the judgement.
3 Regarding the political titles, the titles or functions he may
4 have held, once again, we rely strictly on the Trial Chamber's findings on
5 this point, and we point out that it's not a matter of blithe reference to
6 some sort of -- it's not a reference just to the title itself, but it's to
7 the function and the authority and the power which was expressed, which he
8 was able to express in performance of those titles. And if the respondent
9 now wishes to go back and re-litigate, ask the Appeals Chamber to re-look
10 at all of that evidence, I'd simply point Your Honours, for a very full
11 breakdown of his titles and the different functions he held throughout the
12 time period, to annex 10 of the Prosecution closing brief, which presents
13 a very detailed elaboration of this issue.
14 How best can it be expressed? The line in paragraph 829: "He was
15 the political leader of the Bosnian Croats in Central Bosnia."
16 Turning briefly to the points he makes about disparity, or rather,
17 that it's not relevant to look at Blaskic's sentence or to compare
18 Kordic's sentence to Blaskic's. Of course, we see some distinctions
19 between Kordic's and Blaskic's cases and their convictions. But several
20 features of the case make it so clearly and directly relevant when you
21 consider Kordic's case, not just the similarity of crime base, but also
22 the fact that even though there's no conviction, Kordic bears no
23 conviction under 7(3), his guilt under 7(1) is really as being the
24 perpetrator behind the perpetrator, for having planned and ordered the
25 crimes committed by the soldiers under Blaskic's command. And the final
1 point: The Trial Chamber has made specific findings regarding the
2 relationship between Kordic and Blaskic and concluded that it was either
3 one of subordination or at least as co- or joint authorities.
4 Our point is that there should not be any grave disparity between
5 the final sentences imposed upon these two offenders, Kordic and Blaskic.
6 And as a final point, the respondent has analysed the Tribunal
7 jurisprudence to date as if it is uniformly or somehow against the utility
8 of parity arguments on sentencing or when it comes to the
9 Appeals Chamber's review of sentencing. Of course, we recognise that a
10 sentencing range in this Tribunal is still in a nascent stage, but a range
11 is beginning to emerge, but it's still at the more beginning stages,
12 especially for certain types of crimes and offenders. One can't determine
13 precisely with certainty for particular offences and offenders what a
14 sentence exactly should be.
15 And, true, the Appeals Chamber has rejected parity arguments in
16 some cases, but it hasn't discounted the utility of comparing one sentence
17 with another. And in fact, in some appeals cases, specifically Furundzija
18 and Jelisic, the Appeals Chamber has specifically acknowledged the
19 assistance which can be drawn from such a comparison in the very case like
20 this, when the circumstances of the offences and the offender are
21 substantially similar.
22 And clearly, there's a value of having consistency in a sentencing
23 for any criminal justice system and that would clearly include the justice
24 system before this Tribunal. That completes my submissions, unless you
25 have any questions.
1 JUDGE SCHOMBURG: Thank you. Thank you, Ms. Brady.
2 Mr. Farrell, please.
3 MR. FARRELL: Your Honours, I will briefly respond to the -- or
4 sorry, reply to the response by my learned colleagues, counsel for
5 Mr. Cerkez. I don't think there's any misunderstanding by my friends, but
6 it's a Prosecution appeal based on facts as found. My learned friends
7 proceeded on the basis that there was no plan, that Mr. Cerkez wasn't
8 involved, as if he wasn't even convicted for the any events in
9 Donja Veceriska or Stari Vitez or Vitez. They proceeded to challenge the
10 evidence that was before the Court and essentially argue in a sense that
11 the Trial Chamber actually got it all wrong. That may be their position,
12 but the issue on the Prosecution appeal is on the facts as found by the
13 Trial Chamber, did get it all wrong, for a different reason, the fact that
14 they should have convicted him as a member of the joint criminal
16 There's a few points I wanted to make, procedural matters. There
17 was essentially they reiterated their ground of appeal in relation to one
18 of the documents, Z692.3. It doesn't actually answer the Prosecution
19 appeal in the sense of indicating why, based on the findings of the
20 Trial Chamber, the Trial Chamber was correct in concluding that he wasn't
21 guilty for Ahmici. As my friend has indicated, there's lots of evidence
22 that can be put before you or there is evidence that can be put before you
23 to rebut his claims, but the bottom line is he's got to prove in his own
24 appeal that the document shouldn't have been admitted. If he doesn't and
25 we move to the Prosecution appeal on sentence then it's taken as a fact
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 that that document can be relied upon.
2 He's indicated the relation to that document that there is other
3 evidence, AT indicated that the direction of the attack of the
4 Vitez Brigade was towards Sivrino Selo, the very next document referred to
5 by the Trial Chamber, paragraph 689(D), talks about the artillery
6 constantly attacking Sivrino Selo. I note that counsel for Mr. Cerkez has
7 not challenged in terms of its authenticity this document.
8 And the war diary indicates on April 18th at 12.02 that there was
9 a request made of Mario, asking him to open fire on Sivrino Selo. And
10 this provides support for Pasko, because they were outside Sivrino Selo.
11 Counsel for Mr. Cerkez indicated that the Prosecution was changing
12 its case. Gone from changing the case in the indictment in pre-trial
13 brief to now changing the case on the appeal. And my learned friend
14 referred to some passages from the opening in which he quoted, if I wrote
15 it down correctly, that Cerkez was involved with his men in part of an
16 overall plan but was not the particular brigade going in first thing that
17 morning. That's exactly what the Trial Chamber found. He also says, and
18 he quoted from submissions at trial, that Cerkez was part of the plan and
19 played a role. Prosecution's closing brief. That is the Prosecution's
20 position. It hasn't changed. Those are the findings of the Trial Chamber
21 and that's the basis upon which he should have been found guilty.
22 There was a comment by counsel for Mr. Cerkez that Mr. Cerkez had
23 offered to cooperate with the Prosecution and testify in the
24 Hadzihasanovic case. This matter, in my respectful submission, should
25 have been brought as a 115 motion and the Prosecution would have been able
1 to file evidence in response. But the Prosecution's submission is that to
2 the extent that counsel for Mr. Cerkez did make such an offer, the
3 assessment by the Office of the Prosecution was that it had very serious
4 concerns about the truthfulness of whatever he would tell us, the scope he
5 would agree to speak about, and that he was rejected outright as a
6 potential witness. Therefore, we didn't even get to the point of
7 determining whether or not he could provide any cooperation whatsoever,
8 because the Prosecution declined that at the beginning. So the extent to
9 which it's placed before you to show any type of cooperation under
10 Rule 108, I would respectfully submit it doesn't even meet the
11 requirements to be placed before you and certainly is not substantial
12 cooperation under Rule 108.
13 THE INTERPRETER: Could counsel please pause to give the
14 interpreters a chance to catch up. Thank you.
15 MR. FARRELL: There were a number of factual arguments that were
16 raised, as I've indicated, arguments that there was no plan, that there
17 was no knowledge on Mr. Cerkez's part, that there were no crimes, and that
18 in fact the crime in Ahmici was described as a military operation which
19 escalated to crimes during the fighting in the battles in the military
20 operations that were occurring in Ahmici at the time. We respectfully
21 request that you -- and considering the Prosecution's appeal, consider the
22 findings and not the submissions of counsel. At the end of the day, the
23 findings are irrefutable that there was a plan. It is inconceivable that
24 an attack could take place of this magnitude, in this many villages, with
25 the exact same pattern, over a hundred people killed, thousands of people
1 detained, destruction extensively in relation to only one set of people,
2 the Muslim people, Croat houses untouched. It's inconceivable that this
3 could be somehow just a coincidence that it all happened at the same time
4 by independent units, without any knowledge of the others, at 5.30 in the
5 morning with the exact same illegal plan resulting in the exact same
6 deaths, with no preparation and no ability to detain people once the
7 attacks had happened because they hadn't planned it.
8 With respect, it's quite clear even without Witness AT that there
9 was a plan. It's quite clear that the findings of the Trial Chamber that
10 there was a plan, that Mr. Cerkez had deliberately and intentionally acted
11 pursuant to the plan, that he knew what his role was, he performed that
12 function, and that he contributed significantly to the illegal campaign of
14 In my respectful submission, there's only one conclusion that can
15 be reached on the facts as found, if the law is applied correctly, and
16 that is that this Appeals Chamber substitute a verdict of conviction on
17 Mr. Cerkez for the counts as listed in the Prosecution's Appeal Brief for
18 the crimes committed in Ahmici.
19 That ends the Prosecution's appeal, Your Honours. Thank you for
20 your patience. My apologies to the translators for the usual speed at
21 which we speak. Subject to any questions, that would be the end of the
22 appeal. Thank you.
23 JUDGE SCHOMBURG: There are no questions. In fact, the end of the
24 appeal. We can note as the final points on the agenda and this is the
25 invitation by the Appeals Chamber to both accused to address the Bench.
1 However, before continuing, I want to emphasise that this final
2 word should not be confused with Rule 84 bis. It's a possibility, an
3 option, for an accused to address the Bench on whatever issue he so wants,
4 and it's for the Bench to get a personal impression of the accused being
5 not a mere object of criminal proceedings, but also a subject of these
6 proceedings. Therefore, this right of having the final word will be
7 granted, but, of course, only if the accused so wants. And the only thing
8 what Rule 84 bis and the final word have in common is that an accused
9 shall never be compelled to make such a final word and shall not be
10 examined about the content of the statement.
11 So may I ask first the Kordic Defence, in light of this: Did you
12 discuss this with your client, and what is the position of your client?
13 MR. SAYERS: Yes, Your Honour, we have. And Mr. Kordic's decision
14 is that he does not wish to address the Bench. But one final matter is
15 the neglected matter of the table that Mr. Smith referred to. As I
16 understand it, the Prosecution has no objection to submitting this. So
17 with the Court's permission, I'll give it to the usher.
18 JUDGE SCHOMBURG: Please do so. So I understand, Mr. Kordic, that
19 you waive your right to present a final word.
20 THE APPELLANT KORDIC: [Interpretation] Your Honour, thank you for
21 showing such kindness to me. I do waive my right. I completely agree
22 what my distinguished lawyers have put forward throughout this case.
23 Thank you.
24 JUDGE SCHOMBURG: Thank you.
25 And may I ask Defence of Mr. Cerkez, please.
1 MR. KOVACIC: Your Honour, when I informed my client about the
2 possibility, he was glad that he would finally have opportunity to say
3 only briefly a couple of words about his attitude towards these
4 proceedings, and he would be delighted to do so.
5 JUDGE SCHOMBURG: So that we can really all together can follow
6 your words, would you please stand up and proceed and stand in front of
7 the witness stand. You are not acting as a witness. It's the final word
8 of you in your capacity as an accused. Please.
9 THE APPELLANT CERKEZ: [Interpretation] Your Honours, I wish to
10 thank you for giving me this opportunity to address you at the end of
11 these long proceedings. The first thing I wish to say is that the only
12 plan I had, Your Honours, on the 15th of April, 1993, was to marry my wife
13 Slavica in church. My commander, Blaskic, was aware of this. This is the
14 truth, Your Honours.
15 I wish to tell you right away that I'm not trying to evade my part
16 of the responsibility for everything that happened during the conflict
17 between the Bosniak Muslims and the Croats in my native town of Vitez. In
18 spite of the broad indictment with respect to time and area, all the bad
19 things that happened, happened over a few days in April 1993, in only a
20 few locations within the boundaries of Vitez municipality. Your Honours,
21 I wish here to express in public my deep and sincere remorse and regret
22 for every victim that resulted from the unfortunate conflict between the
23 Bosnian Muslims and the Croats in the Lasva River Valley in 1993. I am
24 aware that this will not assist the victims, but I do hope that their
25 families and friends will accept my sincere expression of regret.
1 I am aware that many people were killed, that many people were
2 victims, to a greater or lesser extent, that many lost their homes,
3 without any justifiable reason, and sometimes beyond the scope of military
4 operations. For all this, I express my deep regret, and I believe that I
5 have to bear a part of the responsibility for this, for the simple reason
6 that I was a soldier on one of the sides in the conflict. This conflict
7 was a necessary consequence of other events beyond my control and
8 influence, and I'm sorry I took part in it.
9 Your Honours, I feel responsible for everything that happened from
10 the 16th of April, 1993, to the 21st of April, 1993, in the area of
11 responsibility for which I was responsible. This was precisely stated in
12 the order by the commander of the Central Bosnia Operative Zone, Blaskic,
13 who, on the 16th of April, 1993, at 1.30 in the morning, issued an order.
14 This order, Your Honours, is one you have seen during these proceedings,
15 D60/2. This order clearly set out my area of responsibility for which I'm
16 responsible, as the commander of the Vitez Brigade during those few
17 crucial days.
18 Your Honours, you have seen that Blaskic, whose command was in
19 Vitez, issued written orders on the 16th of April, 1993 to all existing
20 units of the HVO in the area of Vitez, and that every order precisely
21 established the area of responsibility for each unit. I did not issue
22 these orders. Moreover, never, never did I issue an order to the Vitezovi
23 or the 4th Battalion of the military police.
24 I accept all responsibility for everything that happened in my
25 area of responsibility. The Vitez Brigade, which was being established,
1 which had existed for only 23 days, received an order that it was to
2 prevent a possible attempt by the forces of the Army of Bosnia and
3 Herzegovina from the village of Kruscica and Vranjska, stage a
4 breakthrough towards the town of Vitez. Your Honours, the village of
5 Kruscica is my village, where my family lived, my parents, my wife, and my
7 I carried out this order to the best of my ability in the given
8 circumstances. Witness Anto Bertovic, and other witnesses, testified to
9 this in detail. The soldiers under my command were deployed on several
10 strategic positions between the village of Kruscica, Vranjska, and the
11 town of Vitez. However, there was no attempt at a breakthrough by the
12 forces of Bosnia and Herzegovina, the Army of Bosnia and Herzegovina, nor
13 did I order my soldiers to attack these forces in Kruscica and Vranjska.
14 Your Honours, on the 21st of April, 1993, I received an order from
15 Commander Blaskic that I was to set up sectors stretching along the edges
16 of the municipality of Vitez, and this line of defence remained stable
17 until the Washington Accords were signed in the spring of 1994.
18 Throughout this time, the soldiers subordinate to me held this line of
19 defence and repulsed many attacks by the forces of the Army of Bosnia and
20 Herzegovina, which undoubtedly had a plan to take the Lasva River Valley
21 and especially the town of Vitez, because of the explosives factory that
22 was located there.
23 This was one of the largest factories of this type on the
24 territory of the former Socialist Federal Republic of Yugoslavia. There
25 is no information showing that any crime was committed in this long
1 period, from the 21st of April, 1993, to the end of September 1993,
2 covered by the indictment.
3 Your Honours, it is not my intention to mount a defence before
4 Your Honours by stating this. My only wish in stating this was to show
5 that, as a soldier and as the commander of the Vitez Brigade, I carried
6 out the orders given to me in the locations specified in these orders.
7 Your Honours, as a soldier, I consider that I can be responsible only for
8 those areas on which soldiers under my command acted.
9 In the indictment, there is no assertion that any crime happened
10 in the areas and at the time while I was responsible there.
11 Your Honours, when I learned of this indictment, after brief
12 preparations for defence, I voluntarily appeared before this Tribunal. I
13 knew what I was charged with. I knew I had not committed the crimes I was
14 charged with, nor had soldiers subordinate to me committed them. I knew,
15 therefore, that I would be able to defend myself. Your Honours, I wish to
16 remind you that the HVO organised a civilian and a military component in
17 about 40 municipalities in Bosnia and Herzegovina. Every municipality had
18 a so-called "R" brigade. These were reserve units based on call-up of
19 reservists. I was the commander of one such R brigade. Not a single
20 commander of the municipal brigades of the HVO has been indicted before
21 this Tribunal except for me. Unfortunately, in the municipality to which
22 my brigade belonged, a crime occurred, the crime in Ahmici. This crime
23 led to an investigation and an indictment and was the focal point of this
24 trial. I was acquitted of this crime because the Trial Chamber
25 established that my unit had not been at that location at that time.
1 Let me repeat: I voluntarily appeared before the Tribunal,
2 knowing I would not be convicted for that crime because I believed that
3 the truth would become clear, and that's how it was.
4 Your Honours, as a Croat from Bosnia and a member of the HVO, I am
5 ashamed and hurt by the fact that in the area of the Lasva Valley, the HVO
6 is responsible for several crimes. I'm referring primarily to the crime
7 in Ahmici. Of course, I do not accept collective guilt as the basis for a
8 criminal conviction, but I do accept moral responsibility for events which
9 should not have happened. My only consolation is that I was neither able
10 to prevent this as a soldier, nor as a human being. My consolation is
11 also that such crimes were not committed by men under my command.
12 Your Honours, I was born and brought up in a traditional
13 environment, in which there was no ethnic or religious intolerance. Among
14 my closest friends, there were Bosniak Muslims, Serbs, Roma, and others. I
15 always evaluated people by their standpoints and their behaviour, not by
16 their affiliation to a religion or an ethnic group. That is how I was
17 brought up in my home, in school, in society, and that is what I always
18 adhered to.
19 In my previous life, nothing had prepared me for the wars that
20 were waged in Bosnia from 1992 to 1994. When the war in Bosnia broke out
21 in 1992, like many others belonging to my ethnic group, I was confused and
22 frustrated, unable to understand the situation and the causes of the war.
23 I personally support the fundamental idea which led to the establishment
24 of this Honourable Tribunal. I support the efforts to bring to justice
25 and convict individuals who committed crimes during the conflicts in
1 Bosnia and Herzegovina, so that the stamp of collective guilt, the stigma
2 of collective guilt, would not be borne by entire ethnic groups and
3 nations. This is one of the reasons I surrendered voluntarily to this
5 Your Honours, I wish to say that not a single witness before this
6 Honourable Tribunal said anything against me as a person. On the
7 contrary; many Bosniak Muslim witnesses, and others, said they did not
8 think I was a person with ethnic prejudices. I was consoled by this, and
9 this made it easier for me to bear these seven long years in prison.
10 In my pre-war life, I was an average citizen. I completed
11 vocational secondary school. I was employed first in municipal
12 administration and then in the Slobodan Princip Seljo factory. I was
13 never found guilty of a misdemeanour, let alone a crime. In Vitez, I got
14 married. I have three daughters. My youngest, Marijana, is now in
15 primary school. My two eldest daughters are at university. My eldest
16 daughter Brankica is married and has a son and is now expecting a second
18 In spite of this, she is a good student and she will soon get her
19 degree, as will her husband. My middle daughter, Nikolina, is a student
20 at the second year at the faculty of law in Split. After the war, I moved
21 with my family to the beautiful town of Split in Croatia. My wife and I
22 made this decision only due to a wish to ensure a better future for our
23 daughters. In Bosnia, we no longer saw such a possibility.
24 Your Honours, I'm sure you will understand that my time in
25 detention has been very difficult, especially because of the suspense that
1 detention entails. I have managed to transcend all this because of the
2 good and healthy relations my family members have with each other and
3 because of my faith that I will be acquitted of crimes for which I'm not
4 responsible, and because of the art of painting that I have been engaged
5 in in the last three years.
6 What is most difficult is that I have not been able to spend the
7 most beautiful years of my daughters' childhood with them. That is
8 something that I have missed and that I will never be able to make up for.
9 This is already a punishment, and this will remain even if this Honourable
10 Tribunal should acquit me on every count.
11 Finally, Your Honours, it is up to you to reach a just decision on
12 my culpability and my sentence. I believe that you will weigh every piece
13 of evidence with wisdom and care, both exculpatory and otherwise. I am
14 sure that you will reach a just decision. Of course, I long for freedom
15 and for a return to my beloved family. I can hardly wait for the day to
16 be with my wife, my daughters, and grandchildren, to walk along the
17 seafront in Split, in that beautiful town, by that beautiful sea, and to
18 visit the rest of my family in the beautiful and mountainous country of
19 Bosnia and Herzegovina.
20 Your Honours, thank you for giving me this opportunity to express
21 my thoughts in public, and I thank you for your patience.
22 JUDGE SCHOMBURG: Thank you, Mr. Cerkez. You may be seated again.
23 This concludes now the appeal hearing in this case. It remains
24 for me to thank everybody for the preparation of this case, in particular,
25 all the parties, for their precise contributions, both in the pre-Appeal
1 stage and during the hearing during the last three days. And also I have
2 to thank all the staff members having prepared this hearing, and all the
3 interpreters and the others behind the scene that made it possible to
4 understand each other.
5 I can't promise anything what about the time frame a judgement
6 will be handed down. I think we are all aware of the complexity of the
7 case, and I think it's in the interests of all parties that we try to be
8 as precise as possible, and no doubt this will take some time.
9 Once again, thank you, everybody, for this hearing. The hearing
10 of this appeals stays adjourned until further notice.
11 --- Whereupon the Appeals Hearing adjourned
12 at 4.06 p.m.