1 Thursday, 31 August 2006
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.37 p.m.
5 JUDGE ORIE: Good afternoon to everyone. Mr. Registrar, would you
6 please call the case.
7 THE REGISTRAR: Good afternoon to Your Honours. This is case
8 number IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.
9 JUDGE ORIE: Thank you. There are a few matters which I would
10 like to briefly address. The first one is the following: Mr. Tieger, if
11 you would like to make any observations, express any concerns about the
12 use of Rule 84 bis, then you're invited to do so at the end of -- so not
13 prior to the beginning of Mr. Krajisnik to make a statement, but at the
14 end of your submissions in the context of the closing arguments.
15 MR. TIEGER: We understood that, Your Honour, thank you.
16 MR. JOSSE: Will I briefly be able to introduce that by explaining
17 where we're up to at the relevant time, please, Your Honour?
18 JUDGE ORIE: Yes. Then also at that time. I'd rather not mix up
19 all these things. Procedural debates is one and hearing a statement is
20 another matter.
21 I think that it's then up to the Prosecution to start second round
22 of final argument.
24 MR. HARMON: Good afternoon, Your Honours. In respect of the
25 answers to the questions put to the Prosecution by the Chamber, Mr. Gaynor
1 will make the submissions on behalf of the Office of the Prosecutor.
2 JUDGE ORIE: Yes, Mr. Gaynor.
3 MR. GAYNOR: Good afternoon, Your Honours.
4 The first question Your Honours asked was, assuming that we, the
5 Office of the Prosecutor, have proved what we say we've proved, why
6 wouldn't conviction in this case, based on a combination of instigation
7 and aiding and abetting, be the correct result?
8 There are two issues in Your Honours' question, and I will address
9 both briefly.
10 The first issue is whether, on any one count, the Chamber can
11 enter a finding of instigating and aiding and abetting in respect of the
12 same acts. The jurisprudence on this point is not yet settled. I refer
13 Your Honours to the separate opinions of Judge Schomburg and Shahabuddeen
14 attached to the Kamuhanda appeal judgement of 19 September 2005. Judge
15 Schomburg suggests that a conviction naming two or more forms of liability
16 under Article 7.1 of the Statute on the same count in respect of the same
17 acts may be impermissibly cumulative.
18 Judge Shahabuddeen, with whom Judge Weinberg de Roca agreed,
19 opined that such convictions are not impermissibly cumulative. The
20 judgement itself does not contain a substantive discussion of this issue.
21 The second issue is whether in this case a combination of
22 instigation and aiding and abetting would be the correct result. In our
23 submission, neither mode of liability, whether taken separately or
24 together in respect of any particular count, fully encompasses the
25 criminal conduct and intent of the accused in this case. I will deal with
1 each mode of liability separately.
2 I will deal first with aiding and abetting. Tribunal
3 jurisprudence recognises that aiding and abetting is usually considered to
4 incur a lesser degree of individual criminal responsibility than
5 participation in a joint criminal enterprise. I refer to the Vasiljevic
6 appeal judgement, paragraph 102, and the Milutinovic decision of the
7 Appeals Chamber of the 21st of May, 2003, at paragraph 20.
8 An aider and abettor carries out acts that assist, encourage, or
9 lends moral support to the perpetration of a crime, and this support has a
10 substantial effect upon the perpetration of the crime. The requisite
11 mental element is knowledge that the acts performed by the aider and
12 abettor assist the commission of the crime.
13 In this case, Mr. Krajisnik did much more than merely assisting,
14 encouraging or lending moral support to others. A group of persons,
15 including Mr. Krajisnik, acting jointly, designed and orchestrated the
16 implementation of a massive criminal campaign to achieve the purpose of
17 physically removing Muslims and Croats from the targeted territory by any
18 means necessary, including the crimes charged in the indictment. The size
19 of the campaign meant that it could not be carried out by any one person,
20 and necessarily required the contributions of many. The characterisation
21 of the accused's guilt must reflect this reality. Krajisnik was not
22 acting alone, and he was such a central participant that it would be
23 inappropriate to characterise the crimes committed as someone else's
24 crimes which he aided or abetted. As the Appeals Chamber in Tadic said,
25 common purpose liability is "not only dictated by the object and purpose
1 of the Statute but is also warranted by the very nature of many
2 international crimes which are committed most commonly in wartime
3 situations. Most of the time these crimes do not result from the criminal
4 propensity of single individuals but constitute manifestations of
5 collective criminality: The crimes are often carried out by groups of
6 individuals acting in pursuance of a common criminal design."
7 That's the Tadic appeal judgement, at paragraph 191.
8 I will now address instigating. To instigate is to prompt another
9 person to commit an act or omission with the awareness of the substantial
10 likelihood that a crime will be committed in the execution of that
11 instigation. In our submission, the evidence is sufficient to support a
12 conviction for instigation in each count in this case. I simply add that
13 there is a suggestion in the Gacumbitsi appeal judgement of the 7th of
14 July, 2006, at paragraph 61, based on the facts in that case but possibly
15 of more general application, that instigating may carry a lower degree of
16 seriousness as a mode of liability than committing. We submit that, while
17 instigating is more reflective of the accused's responsibility than aiding
18 and abetting, instigating may still not be fully reflective of the depth
19 and breadth of the accused's criminal participation in the crimes alleged.
20 In respect of question 2, I addressed questions 2(A) and 2(B) in
21 my submissions to you on Tuesday. In question 2(C) you asked whether, if
22 the accused had effective control over persons or groups that committed
23 crimes, why do you not ask the Chamber to declare the accused responsible
24 under Article 7.3 of the Statute in relation to those crimes; or if
25 Article 7.1 is insisted upon, for ordering the commission of the crimes?
1 I will deal with Article 7.3 first.
2 First, as a matter of clarification, allegations under 7.3 in the
3 indictment have not been withdrawn and remain in place. The evidence in
4 this case supports a conviction for superior responsibility for each
5 count. There are a number of reasons why we did not emphasise 7.3
6 liability in our brief.
7 As Your Honours are no doubt aware, the Chamber cannot enter
8 convictions under 7.1 and 7.3 for the same conduct in respect of any
9 particular count, as this would be impermissibly cumulative. I refer to
10 the Blaskic appeal judgement, paragraph 92.
11 Where the legal requirements of both 7.1 and 7.3 forms of
12 responsibility are met, a conviction should be entered on the basis of
13 Article 7.1 only, and the Chamber should consider the accused's superior
14 position as an aggravating factor in sentencing. I refer to the Kvocka
15 appeal judgement, paragraph 104, and the Blaskic appeal judgement,
16 paragraph 91.
17 There are three specific reasons why we do not focus on Article
18 7.3 liability in our brief.
19 First, as we have argued, the accused and Karadzic were at the
20 apex of the Bosnian Serb campaign to remove non-Serbs from target
21 territories, and actively participated in the preparation for and
22 implementation of that campaign. It would be an inaccurate
23 characterisation of criminal liability to enter a conviction for the
24 co-architect of a massive campaign of great brutality for merely failing
25 to prevent or punish crimes which he intended, and it would be an
1 understatement of the depth and breadth of Mr. Krajisnik's participation
2 in the crimes alleged.
3 Second, in our submission, it would be against elementary
4 considerations of justice and the spirit of the Statute, which seeks to
5 hold accountable those most responsible for massive crimes, to convict a
6 mere foot soldier or policeman who committed murder in pursuit of the
7 criminal campaign of the Bosnian Serb leadership under Article 7.1, yet to
8 convict one of the masterminds of that campaign under Article 7.3.
9 Third, the indictment in this case does not allege that the
10 accused had superior responsibility over all forces who committed crimes
11 in pursuit of the aim to forcibly remove non-Serbs from target areas of
12 Bosnia. Those crimes are encompassed by JCE liability but would not fall
13 within a 7.3 conviction. A 7.3 conviction would therefore, in our
14 submission, fail to reflect the responsibility of the accused for crimes
15 committed in pursuit of the objective of ethnic separation by forces with
16 whom he worked in concert but over which he did not have effective
18 For these three reasons, we submit that a 7.3 conviction on any
19 one count, while supported by the evidence, would not properly reflect the
20 degree of the accused's participation in the crimes alleged.
21 In question 2(C), Your Honours also asked why we did not ask the
22 Chamber to declare the accused responsible for ordering the commission of
23 crimes. We maintain the allegations in the indictment that the accused is
24 liable for ordering the crimes. The evidence supports a conviction for
25 ordering in respect of each count in the indictment.
1 As a general proposition, ordering would be an appropriate mode of
2 liability on which to enter a conviction on this case. We note, however,
3 that we did not allege that the accused was in a position of authority in
4 respect of some forces, in particular JNA personnel committing crimes in
5 pursuit of the objective of forcible ethnic separation prior to the
6 establishment of the VRS on the 12th of May, 1992. The relationship
7 between the JNA and the Bosnian Serb leadership prior to the establishment
8 of the VRS was one of cooperation rather than ordering. The Court may,
9 therefore, in the exercise of its discretion, conclude that the accused is
10 not liable for ordering the JNA and instead acted in cooperation with the
11 JNA to implement the objective of the criminal plan. This form of
12 liability would be very accurately reflected in a JCE conviction.
13 Now, in question 2(D), you said, alternatively, if our use of
14 terms suggestive of effective control in our final trial brief meant to
15 allege that the accused -- that while the accused himself might not have
16 had effective control over certain or any persons or groups committing
17 alleged crimes, other people in the same JCE of which the accused was a
18 member had effective control over those groups and persons.
19 It is correct that persons in the same JCE as Krajisnik had
20 effective control over certain groups. By way of example, Kukanjac had
21 effective control over JNA soldiers in the 2nd Military District. The
22 correct mode of liability to reflect the accused's responsibility for
23 crimes committed by forces over which another JCE member had effective
24 control is, we submit, joint criminal enterprise. If the Chamber were to
25 find the accused to be a member of a JCE consisting of a core group, he
1 would be liable for the acts of subordinates of other JCE members when
2 carried out pursuant to the JCE.
3 Question 3, I won't read out the entire question. Your Honours
4 identify a number of references in the brief where we describe, for
5 example, Plavsic and Koljevic as marginalised or relatively marginal, with
6 Djeric and a government who were weak, totally subservient, and you ask
7 whether we are implying that some members of the alleged JCE were merely
8 peripheral or powerless, having made much lesser contributions, whereas
9 others were core members who bear responsibility for all the crimes
10 committed. Is it, in other words, you asked, your position that
11 membership of a JCE does not necessarily make each member responsible, or
12 equally responsible, for all the crimes committed pursuit to the JCE? You
13 asked for authorities in support of our submissions.
14 Now, in respect of question 3(A), our answer is that each member
15 of the JCE who shared the intent to pursue the common purpose of the JCE
16 and made a contribution to it, is criminally liable for the crimes
17 committed in furtherance of the common purpose. As I mentioned in my
18 earlier submissions, there is no specific legal requirement that an
19 accused make a substantial contribution to a JCE. Support for that is the
20 Kvocka appeal judgement at paragraph 96. It might be paragraph 97,
22 Now, it is our position that certain JCE participants made greater
23 contributions than others. This fact was publicly acknowledged by the
24 Prosecution in the factual basis in the Plavsic case, which was accepted
25 by the Trial Chamber in that case. The use in our final brief of terms
1 such as "marginalised" and "subservient" and "sidelined" are to be
2 understood stood in the sense that certain individuals were marginalised
3 or sidelined in respect of the inner core of the Bosnian Serb leadership.
4 Some of the participants who made lesser contributions to the JCE, such as
5 Djeric or Subotic, still made significant contributions to the JCE. The
6 extent of participation of an accused in a JCE is a factor which may be
7 taken into account in determining sentence.
8 Now, our authorities are three: First of all, the Stakic appeal
9 judgement at paragraph 380, where the Appeals Chamber, having found that
10 Stakic was a participant in a JCE, went on to find that his role in the
11 commission of the crimes underlying the common purpose was by no means
12 criminal -- was by no means minimal. Correction.
13 In the Kvocka appeal judgement, the Appeals Chamber examined the
14 individual participation of a number of accused who were involved in the
15 JCE to run the Omarska camp in order to determine sentence.
16 In the Babic appeals judgement, at paragraph 40, the Chamber
17 recognised that a Chamber may, in its discretion, assess the participation
18 of the accused in a JCE relative to the participation of others when
19 determining sentence.
20 Your Honours' question 4 concerned JCE 2. You pointed out that
21 JCE 2 was not dealt with at the 98 bis stage in this case. You asked us
22 to explain why would it be wrong of the Chamber to hold that, even if this
23 had been a live option prior to that point, it is no longer an allegation
24 that may fairly be considered.
25 The Trial Chamber may, in its discretion, decide to apply or not
1 to apply JCE 2. The JCE in the indictment in this case was pleaded in
2 accordance with the jurisprudence which applies to the pleading of joint
3 criminal enterprise liability. Further, the facts from which the mens rea
4 for JCE 2 participation may be inferred were pleaded in the indictment.
5 It is clear from the indictment that it is alleged that Mr. Krajisnik had
6 knowledge of a criminal system designed to remove Muslims and Croats from
7 the indictment municipalities and also intent to further that system. We
8 acknowledge, however, that JCE 2 was not dealt with at the 98 bis stage
9 and it is a matter of discretion as to whether the Trial Chamber wishes to
10 apply JCE 2 liability. It would not be wrong not to apply it.
11 Question 5, Your Honours asked us to identified which is the first
12 in time charged crime committed pursuant to the alleged JCE, including the
13 accused. You asked: Who were the members of the JCE at this point?
14 The first charged crime committed pursuant to the JCE is scheduled
15 incident 1.1 in schedule A, which is the killing of at least 48 Bosnian
16 Muslim and/or Bosnian Croat men, women and children in the town of
17 Bijeljina on the 1st or 2nd of April. It's actually -- in the indictment,
18 it's 1-2 April, 1992.
19 Now, while I'm on the subject of the Bijeljina, I wish to make one
20 correction to the Prosecution's final brief. I refer Your Honours to
21 paragraph 246 of our brief.
22 Now, at the end of the paragraph which is at the first bullet
23 point, you see a reference to President Micic. I would like to invite
24 Your Honours to strike that and insert the word "Novakovic."
25 Now, as Mr. Stewart pointed out yesterday, the reference to Micic
1 at paragraph 246 of our brief, which Mr. Harmon referred to at page 27301
2 of his submissions, of the transcript of this case, was a mistake. It was
3 Novakovic who spoke to Mr. Krajisnik, according to the accused's own
4 evidence at transcript page 24298. The incident, this telephone call, is
5 also referred to at paragraph 333 of our brief, which correctly refers to
7 I also wish to note a somewhat more substantive point.
8 Mr. Stewart stated yesterday in the course of referring to paragraph 246
9 of our brief, that, "Mr. Krajisnik didn't talk to Mauzer." That, in our
10 submission, is not correct. I refer Your Honours to the transcript of the
11 evidence of Mr. Krajisnik, page 24298, referred to at footnote 631 of our
12 brief. I will simply read out the relevant lines of that page, which are
13 lines 9 to 15, to clarify the record.
14 JUDGE ORIE: Mr. Gaynor, would you have the day as well? Because
15 for me it's difficult to -- in my LiveNote I find dates --
16 MR. STEWART: It's the 18th of May, Your Honour.
17 JUDGE ORIE: The 18th of May. Thank you.
18 MR. GAYNOR: Thank you, Mr. Stewart.
19 I will read the relevant passage, Your Honours.
20 "I was in the offices or cabinet of the Assembly of
21 Bosnia-Herzegovina, and this man's name was Mr. Novakovic, and I asked him
22 what was going on. And he said: I can't tell you over the phone, and
23 somebody snatched the receiver away from him, and I heard the voice of a
24 man who says: "While you're sitting down over there, we're doing your
25 work for you. And who was that? That was Mr. Mauzer."
1 Now, I'm going to move on from that point, Your Honours.
2 Your Honours asked who were the JCE members at the time of the
3 first charged crimes. As pleaded in our indictment, the objective of the
4 joint criminal enterprise was the permanent removal by force or other
5 means of Bosnian Muslim, Bosnian Croat, or other non-Serb inhabitants from
6 large areas of Bosnia and Herzegovina through the commission of crimes
7 punishable under the Statute of the Tribunal. It was a vast criminal
8 enterprise, and, like any vast criminal enterprise, its membership was not
9 static. The members of the JCE participated in different ways, in
10 different geographical areas, with the shared intent to secure the
11 objective of forcibly removing non-Serbs from the targeted territory
12 across great parts of Bosnia and Herzegovina.
13 At the end of March 1992, and at the time of the first crimes
14 charged in the indictment, the joint criminal enterprise already included
15 a great number of individuals, including Krajisnik, Karadzic, Koljevic,
16 Plavsic, Arkan, Milosevic, Mauzer, Mico Stanisic, Mandic, Brdjanin, and
17 Kukanjac. It also included those Serb Crisis Staffs which had been
18 established, members of the RS MUP, the Serb TO, and paramilitary groups
19 and JNA personnel. Your Honours may ask why Mladic is not in that list.
20 Mladic and other VRS staff became part of the joint criminal enterprise on
21 the 12th of May, 1992, on the establishment of the VRS.
22 I move now to question 6, which is the specific question about
23 Glogova. You asked: Was the alleged attack on Glogova an action of the
24 alleged joint criminal enterprise, including the accused? If so, explain
25 why, taking into account that neither Karadzic nor Mladic seem to have
1 known about it until after the fact, and Djeric seems to have been
2 displeased with it.
3 The attack was an action of the JCE, including the accused.
4 Bratunac municipality was a municipality with a Muslim majority
5 population, and it was contiguous with Serbia. As such, it was vital to
6 the realisation of Strategic Objective number 3. The nature of the acts
7 committed during the attack on Glogova, which was consistent and
8 contemporaneous with attacks elsewhere in the targeted territory, the
9 forces participating in the attack, the high-level approvals obtained in
10 advance of the attack, the disarmament operation which preceded the
11 attack, and the absence of any effort to hold to account those responsible
12 for the attack are some elements which confirm the view that the attack on
13 Glogova was carried out in pursuit of the campaign to eliminate non-Serbs
14 from the targeted territories.
15 Your Honours have asked a specific question, so I would like to
16 point to specific elements of what I've just outlined.
17 In particular, the evidence shows that the attack on Glogova was
18 intended as part of the plan to create Serbian territory in the Bratunac
19 municipality by forcibly removing its Muslim population. Attacks on and
20 the ethnic cleansing of the Muslim settlements of Suha and Voljevica
22 The features of the attack on Glogova - disarming the village,
23 attacking it, razing the houses and mosque, ethnically cleansing its
24 population, separating the men, beating and killing them, and then
25 forcibly removing them from the municipality - mirrored the pattern of
1 attacks on Muslim settlements that had occurred previously in
2 municipalities that were contiguous with Serbia or otherwise were
3 territories vital for the realisation of Strategic Objective number 3. I
4 refer specifically to the municipalities of Bijeljina, Foca, Zvornik,
5 Visegrad, and Vlasenica. Elsewhere in Bosnia, the same pattern of attacks
6 had occurred in the municipalities of Sanski Most, Bosanska Krupa, Brcko,
7 Prijedor and Doboj.
8 The plan to attack Glogova was undertaken with the understanding
9 that it had the approval of the top leadership of the Republika Srpska and
11 The operational planning for the attack on Glogova was prepared by
12 the JNA.
13 The decision to attack at Glogova, burn part of the village and
14 forcibly remove its population, as well as ethnically cleanse other Muslim
15 settlements, was formally taken by the Bratunac Crisis Staff at a meeting
16 attended by representatives of the JNA, Serbian state security, the
17 commander of the TO, and the chief of police. The attack on the village
18 was a coordinated, joint operation. The attacking forces consisted of
19 members of the JNA, the TO, the police and "volunteers" from Serbia.
20 The volunteers who participated in the attack had been escorted
21 from Serbia to Bosnia by Goran Zekic, who was a member of the Bosnian Serb
22 Assembly and the SDS main board; Miodrag Jokic, who was vice-president of
23 the Srebrenica SDS; Miroslav Deronjic, who was the Crisis Staff president
24 in Bratunac, and the Serbian police. According to Zekic, the volunteers
25 and the JNA operated pursuant to an agreement between the leadership of
1 Serbia and the leadership of Republika Srpska.
2 The attack on Glogova resulted in the deaths of 65 Muslims, the
3 burning of a significant part of the village, the forcible expulsion of
4 its entire Muslim population, the detention of the men, and the
5 destruction of its sole mosque. Similar attacks, as I pointed out
6 earlier, followed immediately on other Muslim settlements.
7 Muslim men from those settlements, and Glogova, were detained in
8 detention facilities where, as mentioned, they were beaten, killed, and
9 forcibly removed from the municipality.
10 After the attack Deronjic was summoned to Pale where he and other
11 presidents of Bosnian Serb Crisis Staff reported to Mladic, Karadzic, and
12 Ostojic on the military situation in the field. Maps of Bosnia depicting
13 the ethnic composition of municipalities were behind them, with Serb
14 territories marked in blue and Muslim territories in green. Deronjic
15 described in detail the ethnic cleansing that had occurred and was
16 continuing in Bratunac. Following Deronjic's presentation, Ostojic
17 remarked, "Now the municipality of Bratunac can be painted blue."
18 There is no evidence that Deronjic did not know -- correction:
19 There is no evidence that Karadzic did not know about the events in
20 Bratunac prior to this meeting.
21 At the time of the briefing, Mladic had not yet been appointed the
22 head of the Main Staff and was receiving a briefing on the military events
23 in the field. Two days later, at the 16th session, he was formally
24 appointed head of the VRS Main Staff.
25 The evidence does not disclose the reason why Djeric expressed
1 displeasure about the attack on Glogova. The evidence does show that when
2 Muslims, who had been ethnically cleansed from Bratunac, arrived in Pale
3 days later, Djeric was aware of their arrival and provided material
4 assistance to efforts that resulted in their removal from Bosnian Serb
6 Deronjic was never criticised by Karadzic, Mladic, or Ostojic for
7 the actions he described in his oral report.
8 Deronjic was never prosecuted or punished for the attacks on
9 Glogova by the Bosnian Serb authorities. Rather, he later was appointed
10 to the SDS main board and became a vice-president of the SDS.
11 In summary, the evidence establishes that the attack on Glogova
12 was a classic example of an operation of the JCE that fully achieved its
14 I move now to question number 7. Your Honours quoted two
15 paragraphs from our brief, paragraph 225, and Your Honours quoted a
16 section which reads "especially in April and May, some Crisis Staffs," and
17 you asked: Is it the OTP's theory that only some Crisis Staffs were part
18 of the alleged JCE?
19 Our answer is that all Serb Crisis Staffs were part of the JCE.
20 Paragraph 225 of our brief refers to Crisis Staffs issuing orders to
21 military units and having close contact with the VRS, such as personal
22 contact with Mladic. That's at paragraph 230. Those paragraphs are not
23 tantamount to a position that some Crisis Staffs were outside the JCE, but
24 rather, discusses the relationship between the military and some
25 individual Crisis Staffs.
1 The Hanson report. The Hanson report addresses the issue of
2 military authority of Crisis Staffs with great care. Some Crisis Staffs,
3 especially in April and in May, before the establishment of the VRS, did
4 command local armed units. In other areas, the Crisis Staffs did not
5 command local -- did not command armed units because the JNA was present
6 or the local TO had a robust command structure already in place. The
7 overall pattern, however, is that all Crisis Staffs, at a minimum,
8 supported and coordinated with the Serb armed forces in their
9 municipalities, providing resources and recruits which facilitated the
10 operation of those armed units. All Crisis Staffs acted in support of the
11 operation to achieve the objective of the JCE, because they were
12 established and maintained by the Bosnian Serb leadership through Variant
13 A and B and the Djeric order of 26th April, 1992, precisely in order to
14 seize and maintain power at the municipal level on the claimed territory.
15 Even those Crisis Staffs that may have had little role in commanding local
16 armed forces participated in the persecutory campaign by overseeing the
17 forcible removal of non-Serbs and ordering discriminatory measures against
19 Question 8 is a relatively long question, but for the record I
20 think I should read it out. Your question was: "What kinds of evidence
21 distinguish Crisis Staffs (and more generally perpetrators of crimes) who
22 were acting as part of the alleged JCE, from those who were not part of
23 the JCE but who were engaged in copycat, or parallel, or independent
24 activities, war crimes per se (relating to fighting a civil war as opposed
25 to pursuant to the alleged JCE objective), or common thuggery arising from
1 the collapse of law and order?
2 First, the evidence does not reveal that there was a collapse of
3 law and order but that the collapse of law and order was partial and
5 Second, the evidence supports the conclusion that all Crisis
6 Staffs were acting as part of the JCE. There is no reliable evidence that
7 there were copycat or independent Crisis Staffs.
8 In respect of what kinds of evidence determine whether a
9 particular Crisis Staff was acting as part of the JCE, we submit that the
10 Court should consider the following non-exhaustive list of factors: How
11 the Crisis Staff was created and who created it; the general composition
12 of the Crisis Staff, including whether it contained individuals holding
13 positions of authority, such as SJB chiefs, TO heads, VRS personnel, or
14 SDS representatives; the relationship of the Crisis Staff members to
15 members who were in the JCE; expressions of intent by Crisis Staff members
16 consistent with the common purpose; evidence of communication from JCE
17 members to the Crisis Staff; evidence of other actions by the Crisis Staff
18 consistent with the objectives of the JCE, including crimes against
19 Muslims and Croats and their property; evidence of acceptance of
20 instructions to the Crisis Staff from JCE members; the pattern of the
21 establishment of Crisis Staffs by the Bosnian Serb leadership.
22 Many of these evidential inquiries may also apply to perpetrators
23 generally, and a non-exhaustive list would also include the following:
24 Whether the perpetrator was a member of, or associated with, any organised
25 bodies connected to the JCE; whether the crimes committed were consistent
1 with the pattern of similar crimes by JCE members against similar kinds of
2 victims; whether the perpetrator acted at the same time as members of the
3 JCE, or as persons who were tools or instruments of the JCE; whether the
4 perpetrator's act advanced the objective of the JCE; whether the
5 perpetrator's act was ratified implicitly or explicitly by members of the
6 JCE; whether the perpetrator acted in cooperation or conjunction with
7 members of the JCE at any relevant time; whether any meaningful effort was
8 made to punish the act by any member of the JCE in a position to do so;
9 whether similar acts were punished by JCE members in a position to do so;
10 whether members of the JCE or those who were tools of the JCE continued to
11 affiliate with the perpetrators after the act; finally - and this is a
12 non-exhaustive list - whether the acts were performed in the context of a
13 systematic attack, including one of relatively low intensity over a long
15 In examining the evidence concerning crimes generally, we submit
16 that Your Honours will find that, insofar as any of the criminal incidents
17 proven went beyond what was intended by the accused, we submit that the
18 Chamber should find that, first, it was foreseeable that such crimes might
19 be perpetrated by one or other members of the group; and, second, the
20 accused willingly took that risk, that is, he was aware that such crime
21 was a possible consequence of the execution of the enterprise, and with
22 that awareness, the accused decided to participate in the enterprise.
23 The foreseeability of those crimes has to be assessed in the light
24 of a number of factors. I'll name just four categories.
25 First, evidence that there was a systematic arming of the Serb
1 population and a deliberate campaign to disarm Muslims and Croats.
2 Second, evidence that the Bosnian Serb leadership created and
3 encouraged a culture of impunity in respect of crimes against non-Serbs
4 committed by MUP, VRS, and paramilitary forces, while continuing to
5 enforce the law against Serbs committing crimes, even some relatively
6 minor crimes, against fellow Serbs.
7 Third, evidence that Bosnian Serb leadership was conducting
8 systematic persecutions through the crimes in the indictment.
9 Fourth, evidence that the Bosnian Serb leadership promoted and
10 implemented a propaganda campaign. The leadership instilled in the Serb
11 population of Bosnia-Herzegovina ethnic hatred and fear of annihilation at
12 the hands of Muslims and Croats. Concepts of brotherhood, unity and
13 interethnic tolerance were deliberately debased and discredited. Muslims
14 and Croats were vilified and dehumanised.
15 In this environment of a systematic campaign, whipped-up ethnic
16 hatred, an armed Serb population, a disarmed non-Serb population, and a
17 deliberately created culture of impunity in respect of crimes against
18 non-Serbs, such opportunistic crimes against non-Serbs in the indictment
19 municipalities as did happen were reasonably foreseeable, and the accused
20 was aware that such crimes were a possible consequence of the execution of
21 the joint criminal enterprise.
22 Question 9 is Your Honours' final question. Mr. Tieger answered
23 that on Tuesday, and I now propose to hand over to Mr. Tieger.
24 JUDGE ORIE: Yes, Mr. Tieger. I was informed that most likely the
25 Prosecution would stay within the hour announced, and that means that you
1 have only little to add to that, because you're close to the hour. Yes.
2 Please proceed.
3 MR. TIEGER: I believe that --
4 JUDGE ORIE: Let me add to that, that using less words doesn't
5 mean that you're saying anything less important. Please proceed.
6 MR. TIEGER: Then I'm sure what I have to say is extremely
7 important, Your Honour.
8 Just a few remarks about the proposed statement. As the Court,
9 I'm sure, is aware the concept of the last word is rather foreign to
10 practitioners from the common law system and quite familiar to those in
11 the civil law system. In our hybrid system here, its incorporation via 84
12 bis must be understood, in our submission, in light of the requirement
13 under Rule 85 that testimony be taken under oath and subject to
14 cross-examination. It is not intended, in our submission, to be a
15 circumvention of cross-examination or another bite at the apple. And to
16 the extent it is so, it should be accorded no weight.
17 I note, for example, that the accused in Limaj, after testifying,
18 sought to make such a statement and was denied for that reason. Here, the
19 accused has testified to what may, indeed, be an unprecedented degree,
20 certainly over a long period of time.
21 Nevertheless, Your Honour, in this case, the Chamber may well wish
22 to hear from Mr. Krajisnik, and we have advised the Defence accordingly
23 that we do not seek to prevent the Court from doing so, with the exception
24 of three small references that we brought to their attention. And that's
25 our position, subject to the comments I've just offered the Court.
1 Thank you.
2 JUDGE ORIE: Thank you, Mr. Tieger.
3 Before we continue, I would have one question, Mr. Gaynor, on a
4 matter you said. I'll just try to find out whether I understood you well.
5 When you were referring to this paragraph -- let me just find it. I think
6 it was -- yes, 246. You said it's true that Mr. Krajisnik did not speak
7 to Mr. Micic but to Mr. Novakovic, and you said he also talked to Mauzer,
8 and then you referred to -- you read a portion of page 23298.
9 MR. GAYNOR: Your Honour, I think the page I read from was 24298.
10 JUDGE ORIE: I think I said that. That's the page I've got in
11 front of me. You read it to us. If I would tell in my own words what
12 happens there, it's that Mr. Krajisnik is in a telephone conversation with
13 Mr. Novakovic; that someone then grabs the telephone, utters a few words;
14 and that afterwards, that person, identified by Mr. Krajisnik as
15 Mr. Mauzer, interrupted the telephone conversation, put down the receiver
16 so that ends the telephone conversation.
17 In your view, talking to is not having a conversation with someone
18 but is just to hear the words of someone who interferes in a telephone
19 conversation you have with someone else. Is that how I have to understand
21 If I really start a close reading, then if you would defend this
22 position, I think that your line in 246 should have been, that same day
23 Krajisnik called to the Bijeljina Crisis Staff and Mr. Mauzer talked to
24 him, because I do not see any words in response to what Mr. Mauzer said
25 here. Or am I wrong? Because you use this -- you said, he talked to
1 Mauzer because that's what Mr. Krajisnik said. What Mr. Krajisnik said
2 doesn't give me the impression that there was a conversation. And usually
3 if I say I talked to this and this person, I'm usually referring to having
4 a conversation with someone and not just hearing words uttered by someone
5 or yelling at a distance to someone. I'm just trying to understand
6 whether there's more to understand or whether this is what you wanted to
7 tell us.
8 MR. GAYNOR: Thanks for the opportunity to clarify it, Your
9 Honour. That is correct. According to that page of the transcript, it is
10 clear that Mr. Mauzer spoke to Mr. Krajisnik, and there is no evidence
11 that Mr. Krajisnik replied in any way. So I take your point, Your Honour.
12 Thanks for pointing that out.
13 JUDGE ORIE: Yes, thank you. Then I think we'll move on.
14 Mr. Stewart and Mr. Josse, would you prefer to start now or have a
15 break first? We might get a bit in trouble if we do not start now. But
16 it also depends on how much time you think you'd use for final argument,
17 second round.
18 MR. STEWART: Well, Your Honours, we shan't exceed the time that
19 the Court had in mind, and I doubt whether we should come that close to
20 it. But, Your Honour, we would appreciate a break now.
21 JUDGE ORIE: Yes. Let me just see. If we have a break now, we
22 will resume at 4. Yes, I think it's manageable. So we do not have
23 problems, then, with tapes and forced other breaks.
24 We'll then have a break now for 25 minutes. We will resume at
1 --- Recess taken at 3.34 p.m.
2 --- On resuming at 4.02 p.m.
3 JUDGE ORIE: Mr. Stewart, the floor is yours.
4 MR. STEWART: Thank you, Your Honour.
5 Your Honour, one of the reasons for asking for the break then was
6 that I wanted to take the opportunity of discussing with my co-counsel,
7 Mr. Josse, his reaction to the way in which matters have proceeded over
8 the last two or three days and this afternoon, because I find it always
9 valuable to see whether and to what extent Mr. Josse and I are ad idem on
10 such matters. We often find we are. We certainly do, for what its worth,
11 on this occasion.
12 Your Honour, what has happened is extremely unsatisfactory. The
13 Prosecution, having had their application to more than double the word
14 length of their final brief from 60.000 to 125.000 words, having had that
15 application refused - it was opposed, it was completely refused, there was
16 no extension - we then had the allocation of basically one day to the
17 Prosecution, one day to the Defence. The Prosecution in a very brisk and
18 efficient manner, in one sense, then managed to rattle through 101 pages,
19 or something like that, of transcript so that they were able to add as
20 much as possible by way of written transcript to the 60.000, or nearly
21 60.000 words in their final brief.
22 Well, all right. So far so legitimately tactical in the
23 circumstances. No major protest about that. It's clear that we don't
24 really like it, but, all right, we've lived with that.
25 But what they didn't do, as they rattled through like a --
1 sometimes like a very slickly presented American news programme, with
2 yielding the floor to each other and so on, very efficient and slick, but
3 what they didn't do then was get round, except in relation to one or two
4 questions, get round to dealing with a list of not always easy, not always
5 straightforward, questions which had been supplied by the Trial Chamber
6 last week, at the end of last week. Didn't get round to it.
7 Yesterday evening, we were given the clearest indication that the
8 Prosecution expected to come comfortably within the one-hour allocation.
9 Of course by that time we realised that if they were going to deal with
10 these questions at all, it would have to be today because they hadn't
11 dealt with them. So that was clear. They have in fact taken nearly the
12 full hour, and nearly all of the time that was taken has been taken by
13 Mr. Gaynor dealing with those outstanding questions, and dealing with them
14 both by going to the point of the question, though occasionally not, in
15 fact, going to the point of the question, but also by using today to give
16 the Court, on the transcript, part 3 of their final brief. Part 1, the
17 59.000 and something words, whatever it was; part 2, the 101 pages of
18 transcript; and part 3, what we got this afternoon.
19 Your Honour, in the course of this case, because of the procedures
20 that are adopted, on many occasions, matters which in the culture with
21 which we on the Defence side as counsel are mainly familiar, but we have
22 to live with the culture we have here, lots and lots of things have had to
23 be dealt with by filing paper, putting in motions, et cetera, et cetera,
24 where we would have felt far more comfortable, and we humbly suggest it
25 might have been a lot more efficient, if there'd just been a quick
1 exchange in court, with everybody making clear what their points of view
2 were, following up with difficulties and it could have all been done and
4 And then, by contrast, we get this situation where complicated
5 questions are dealt with in this way, and instead of something which,
6 within the proper procedures of this court, does really lend itself to
7 full written submissions, with proper notice and the proper opportunity to
8 consider them and the proper opportunity to deal with them, it's all done
9 orally on the hoof, on the last day, and here we are.
10 Your Honour, that's our protest. It has had the effect - a number
11 of factors have contributed to that - it has had the effect that, leaving
12 aside what Mr. Tieger said about the last word going to Mr. Krajisnik,
13 which we suggest is more than fair, more than apt in the way that's
14 contemplated, it's had an effect that on a very significant part of the
15 case, effectively the Prosecution have had the last word.
16 Your Honour, we hope and trust it won't matter in the end, but
17 Your Honours now have the -- we've described it as daunting and it remains
18 daunting. Your Honours have the daunting task of sifting the mountains of
19 material, and Your Honours have the daunting task also of applying to that
20 material the often complex, sometimes abstruse, but always significant
21 jurisprudence of this Tribunal.
22 Having said that, Your Honour, we on the Defence side are going to
23 do what we understood what we were here to do today, and we are going to
24 reply. And we're going to do it within that sort of time and we're going
25 to give Your Honours our brief comments on the points that have been made
1 which we understood was the nature of the exercise today, and then when
2 we've done that, with one or two short codas, we will sit down.
3 JUDGE ORIE: Yes. Mr. Stewart, may I ask you one thing? It is
4 because you're using the same word "daunting" again. This morning I saw
5 myself, together with one of my colleagues, trying to find out exactly
6 what it means in our dictionary. Could you describe it in such a way,
7 what you actually -- because we found a couple of meanings which -- all of
8 them, we thought, is that really what Mr. Stewart had in mind? So, as
9 non-native speakers, we'd like not to miss one word.
10 MR. STEWART: I suppose the answer is that it is exactly what I
11 have in mind because I feel I know what the word means. But Your Honour's
12 question nevertheless is perfectly fair. It's going to be an imperfect
13 definition, then.
14 What I have in mind anyway, Your Honour, is that it is -- it's a
15 challenging, perhaps verging on the frightening - but I'm not suggesting
16 Your Honours will be frightened, of course - but it is a challenging,
17 could be to some people frightening task. It is a difficult, heavy task.
18 If you're facing a very steep cliff on a mountain and you're going to have
19 to climb it - perhaps it's Mr. Harmon that's going to have to climb it -
20 it would be daunting. It might not be daunting to Mr. Harmon, I don't
21 know, but it would be daunting.
22 JUDGE ORIE: That's how I understood it, and that's what we do not
23 find in the Oxford dictionary.
24 MR. STEWART: Okay. I didn't look there for it, of course, Your
1 JUDGE ORIE: I'm sorry for interrupting you but since we spent
2 some time on it this morning --
3 MR. STEWART: My curiosity is going to be to see what the French
4 word is later that comes through as the translation of "daunting." It
5 will be interesting to know.
6 JUDGE ORIE: Please proceed.
7 MR. STEWART: Your Honours, what I'm going to do then is, exactly
8 the way I've said, first of all just comment very briefly on the ten
9 points, I think it was, that Mr. Gaynor went through in his submissions.
10 Mr. Gaynor is going to be the focus of our attention this afternoon.
11 The first of the ten issues he raised - and this was at page 56 of
12 Tuesday's LiveNote transcript - I apologise, I don't know whether we've
13 had the proper numbered version. I'm working from the LiveNote one here.
14 At page 56, was 98(H)(ii). We really don't quarrel with the broad
15 propositions as set out in Mr. Gaynor's submissions, and a lot of it does
16 boil down, of course, to judicial common sense. But we -- again we give
17 one particular illustration of the sort of problems that arise in this
18 case. And it's not the only one; it is an illustration.
19 At page 55 of the same transcript on Tuesday, Mr. Harmon said:
20 "Finally, Your Honours, if you look at Defence Exhibit 211, it's a
21 document from the Pale Executive Committee dated the 7th of July that is
22 addressed personally to Biljana Plavsic and informs Mrs. Plavsic that
23 Muslims started moving out forcefully and willfully at their own private
24 -- it must be initiative -- and discretion --" and it goes on, and then
25 Mr. Harmon's contention there was: "Mrs. Plavsic surely would have shared
1 that information with Mr. Krajisnik."
2 Well, that's what he invites as the conclusion. It's that
3 document, 211, which has not been dealt with -- it's obviously been
4 produced, but it's not been referred to in the case, except at the point
5 when Mr. Krajisnik, in the course of his evidence, that document was
6 presented. Even then he did not have the opportunity to expand upon those
7 documents. And Mrs. Plavsic was not asked about that document at all when
8 she gave evidence.
9 That is, in a way, extraordinary, but it highlights where we are
10 in relation to unput points and unput material. The conclusion just being
11 that if something hasn't been put, hasn't been considered, then of course
12 Your Honours must be extraordinarily cautious before drawing any adverse
13 conclusion, any adverse inference at all towards Mr. Krajisnik.
14 Otherwise, Your Honours, we've made quite full submissions on most
15 of these points in our final brief. We don't add anything there.
16 Mr. Gaynor did, under this point, at page 60 - this is page 60,
17 line 15 - say, "In respect of assessing credibility, the Chamber had ample
18 opportunity to observe the accused and to draw its own conclusions about
19 the accused's credibility during the 40 days of his evidence. For these
20 reasons, all the concerns underlying Rule 90(H)(ii) were addressed."
21 That's a different point. Opportunity to assess credibility is a
22 different point. It's part, of course, of the overall assessment of
23 evidence. But this point under Rule 90 goes to the opportunity of dealing
24 with such material and what inferences are then fair to draw.
25 The third point Mr. Gaynor dealt with at page 61, line 6, the next
1 point, I'm quoting him, is that "joint criminal enterprise liability can
2 apply to a massive criminal campaign." That's his point. "The Defence
3 appears to argue at paragraphs 107 and 130 to 134 of its brief that JCE
4 liability cannot apply in a large-scale case. This issue has already been
5 considered and dismissed."
6 We don't say that, Your Honour. That's an extreme position we
7 don't adopt. We do say that it's, in many ways, not apt to apply. We've
8 covered this in our brief. The key point is that JCE is a mode of
9 liability for committing particular crimes, and that nexus is the key, the
10 nexus between the defendant and the crimes. And as long as that key point
11 is focused on, then -- as long as that key point is focused on, then what
12 we say in the Defence brief is correct and does not go as far as is
14 The -- I had, I think, in going through, I'd inadvertently skipped
15 over -- that was in fact the third point. I did inadvertently skip over
16 the second point, which is at the foot of page 60, line 23. His second
17 point, in fact, was the mens rea, the planning, ordering and instigating
18 as set out in the Defence brief was incorrect, and he referred to the
19 submissions in paragraphs 92 to 96 of the Defence brief, and suggested
20 that because we had not specifically acknowledged and recognised what was
21 said in the Kordic appeal judgement at 25 to 32 -- paragraphs 25 to 32, we
22 had misstated the law.
23 Your Honours, we simply observe that, on a proper reading of what
24 we say in the Defence brief, there is no inconsistency. Your Honours will
25 see very clearly what the proper legal test is to apply.
1 The fourth point, at the bottom of page 61, 61, line 20, the
2 application of JCE 3 liability has been sufficiently covered in the
3 Defence brief.
4 The fifth point, at the foot of page 62, that's line 24, JCE does
5 not require an agreement between the accused and those physically carrying
6 out the crimes, we have also really quite fully covered in the Defence
8 The sixth point is first referred to at page 65, but in fact then
9 there's an interjection and it really starts at page 66. The sixth point
10 is that the JCE liability does not require that the accused make a
11 substantial contribution. Mr. Gaynor referred to the Defence brief,
12 stating at paragraph 143 that for JCE liability to attach, the accused
13 must have carried out acts that substantially assisted or significantly
14 affected the furtherance of the goals of the enterprise, and draws
15 attention to the fact that we did not refer there specifically to the
16 Kvocka appeal judgement and to paragraph 97.
17 Your Honours, it's necessary to read the whole of paragraph 97. I
18 don't mean now. But it's of course necessary to read the whole judgement
19 of the Appeals Chamber in Kvocka so far as it's applicable. But in
20 particular, the whole of paragraph 97 needs careful reading. And we
21 suggest that whatever the nuances of Kvocka, in the case where the Court
22 was not satisfied that the accused's acts had either substantially
23 assisted or significantly affected the furtherance of the goals of the
24 enterprise, it would be necessary to be extremely cautious before entering
25 into imposing criminal liability on the basis of the nuances of what we
1 find in Kvocka.
2 Paragraph 7, we do not wish to add anything -- I'm sorry, point 7.
3 It's at page 66, line 13. The next point, Mr. Gaynor says, is also short.
4 The Defence brief at paragraphs 152 to 154 makes submissions concerning
5 aiding and abetting.
6 We have nothing to add there to that, except to say that this is
7 an area where a reading of the indictment wouldn't necessarily have
8 enabled anybody to see very clearly what was being said on these
9 particular points. And, no doubt, that was a difficulty facing the
10 draftsman of the indictment at the time as well.
11 On paragraph -- point 8, rather, which is at page 66, line 20,
12 there's a submission in relation -- there's a reference to the Defence
13 final brief at paragraphs 260, 266 to 270; a conviction for genocide under
14 Article 7.3. In the Defence submission, the Prosecution must establish
15 that the accused possess the requisite dolus specialis. The only support
16 for this view is Stakic Rule 98 bis as the Defence brief appears to accept
17 that there's a considerable quantity of jurisprudence against the Defence.
18 Your Honours, again, that point is clearly seen, or the
19 elaboration of that point is clearly seen from the briefs. We add nothing
20 to what we have said in our written brief.
21 The next point, point 9, page 67, line 11, Mr. Gaynor: "The next
22 point concerns the expanded Presidency." Line 14 Mr. Gaynor says: " I
23 simply wish to add that as a matter of law it is not in fact necessary to
24 prove that the accused held any de jure authority to secure a conviction
25 under Article 7.3."
1 Your Honour, we don't say it is. That's not our submission. Our
2 submission doesn't go that far.
3 Mr. Gaynor continues: "A finding of de jure authority does
4 establish a rebuttable presumption of effective control, but the
5 controlling test for liability to attach is whether the accused in fact
6 held effective control."
7 But, Your Honours, we do persist, and it's in our final brief and
8 it's covered, we do say, there was not de jure authority. All that means
9 is the Court must then establish the correct jurisprudence, so it must
10 apply the correct jurisprudence in relation to de facto authority,
11 depending, of course, on the findings on the evidence. And Your Honours
12 have our submissions that, on the facts and the evidence, that that is not
13 established anyway. But we -- our submission on the de jure authority is
14 not correctly represented in that passage of the Prosecution's
16 And then on the tenth point, at page 67, line 23, in relation to
17 intent to commit crimes in each indictment municipality, we have nothing
18 to add. And, again, we stand on what we set out in our written final
20 Your Honour, then turning to the answers to the questions given
21 today, question 1 -- and I'm just going to give the numbers, Your Honour,
22 I'm not going to read out all the questions again. It's on the Trial
23 Chamber's list. We have nothing to add. None of this means we agree with
24 the Prosecution, Your Honour. That's obviously not the point.
25 Question 2, we agree -- of course where we specifically say we
1 agree, we do. We agree with what was said about the impermissible -- or
2 impermissibly cumulative nature of 7.1 and 7.3 convictions. Not
3 surprisingly, we do go along with that. Otherwise, we have nothing to add
4 on that point.
5 We have nothing to add on question 3 to our submissions already
7 So far as question 4, JCE 2, is concerned, Your Honours have our
8 submission that it does not aptly fit this case. But you also have our
9 submissions, both in the final brief and yesterday, on the
10 inter-relationship of JCE 1 and JCE 2.
11 Question 5, the Mauzer point. Well, Your Honours dealt with that.
12 It's really unnecessary for me to add anything there.
13 So far as 6 is concerned, we don't easily see how that question
14 has been fully answered by the Prosecution in any case. But we do make
15 one particular comment there. Mr. Gaynor said, "There was no evidence
16 that Karadzic did not know about the events in Bratunac prior to this
17 meeting." That rather odd way of expressing the matter does just lead us
18 possibly to one final reminder to everybody as to where the burden of
19 proof in this case lies.
20 Paragraph -- question 7, the answer on Crisis Staffs did, at least
21 to some extent and very belatedly, clarify the Prosecution case. And that
22 and 8, particularly question 8, the answer there was, well, it was a
23 classic final brief question, really. This is probably the clearest
24 example of what should have been in the final brief, or at the very least
25 in the first round of oral submissions. But perhaps, in the end, none of
1 it is terribly surprising and it's all part of the evaluation exercise,
2 that daunting exercise, facing the Trial Chamber.
3 And question 9 was at least answered on Tuesday.
4 Your Honour, those are our submissions today. I'm going to end on
5 a positive note, because I've finished the submissions.
6 I would just like to add very briefly, because I did associate the
7 Defence with some compliments and thanks issued by the Prosecution, I
8 would like to take the opportunity of thanking my own team. I hope that
9 Your Honours feel that that's appropriate, because some of them have been
10 with me a long time. In fact, Mr. Jonovic has been with me a very long
11 time. Sometimes he's full-time and sometimes he's part-time. But when
12 he's full-time, he's really full-time, like all the members of the team.
13 Mr. Rasiah is a recent member of the team, but full-time is a
14 severe understatement as to his contribution to the case recently.
15 And of course Mr. Josse is both the recipient of my enormous
16 thanks for his part in the case. He came into the case in a way that
17 required him not so much to just jump into the deep end, but then to swim
18 under water for quite a long time before he was reasonably expected to
19 surface. But he surfaced very quickly, and he's both the recipient of the
20 thanks, and I also know that he's associated with me in giving the thanks
21 to the rest of the team. And my thanks extend to all past and present
22 members of the team. Their contributions can be very clearly seen on the
23 record, the long record, of this case. In whatever hemisphere they
24 currently find themselves in, the thanks extend to all of them. They are
25 heartfelt. I have had enormous support. It seems that occasionally some
1 of them have even enjoyed working on the team, which is always heartening
2 to see.
3 Mr. Krajisnik is going to have the last word, of course. I would
4 just like to say in relation to Mr. Krajisnik, and perhaps if I may be
5 permitted, slightly through Your Honours to Mr. Krajisnik: All clients
6 and counsel have their ups and downs in a long case. I would just like to
7 say that no counsel could have a more courteous and industrious client
8 than Mr. Krajisnik, and I do wish to acknowledge that.
9 JUDGE ORIE: Thank you, Mr. Stewart.
10 I'd suggest that we now put a few questions, only a few questions,
11 to the parties on some points, sometimes even minor points. But we'll
12 then have a break, and then before the break I'll read and explain the
13 Rule 84 bis to Mr. Krajisnik, which I think is appropriate under these
14 circumstances, and then Mr. Krajisnik will have an opportunity make his
15 statement after the break. And that would then conclude this trial.
16 Perhaps a few -- one question for you, Mr. Stewart. The
17 Prosecution has argued that Rule 90(H)(ii), confronting a witness or
18 putting to a witness what your case is - would not apply and they have
19 given some authorities for that position - would not apply if an accused
20 testifies, if I understood you well, Mr. Gaynor. I haven't heard any
21 position taken on this matter by the Defence. Would you agree with
22 Mr. Gaynor, which of course leaves totally apart how Rule 90(H)(ii) was
23 applied view of other witnesses, or do you disagree with him on the
25 MR. STEWART: Your Honour, we completely disagree. We say it's
1 simply wrong. That it just applies and there isn't such an exception.
2 JUDGE ORIE: Yes. And the material he -- I have not reviewed it
3 yet, so therefore I was wondering whether you had an opportunity. He
4 cited a few cases, I think a Canadian case and Australian case. Do they
5 support or --
6 MR. STEWART: Your Honour, the underlying principle is, after all,
7 one of fairness. It may be that, in particular circumstances, the
8 defendant or party himself - because some of those citations are civil
9 cases - has been fully alerted to points in a way that other witnesses
10 might not. But that's all it comes to, really. It's still -- the concept
11 is a fair opportunity to deal with points and a fair exploration of
12 evidential points so that one isn't left with material which is untested.
13 If something -- it becomes one-sided, then. If something is put forward
14 and then there hasn't been a fair opportunity given for it to be tested,
15 explained, answered, that's essentially what the principle is. It's an
16 illustration, if you like, or it's a subcategory of the essential fairness
17 of the whole process; that there must be a fair opportunity to answer,
18 there must be a fair opportunity to deal with points.
19 JUDGE ORIE: Yes. There might be several elements in the Rule
20 where I, perhaps, was more thinking about -- let me just have a look.
21 Yes. I thought that part of the Rule was that a witness should
22 not be uninformed that his testimony contradicts the Prosecution case so
23 -- because if he would not be informed, he might not understand what kind
24 of explanation would be needed. And I think part of your argument was,
25 Mr. Gaynor, that if an accused testifies in his own case and has been
1 present from the beginning in that case, has followed all the opening
2 statements, has seen all the decisions, that under those circumstances,
3 that the need to give this information to a witness is certainly less
4 pressing than for a witness who comes into the case and may not have seen
5 one single aspect of it and is totally unaware where the friction between
6 his testimony and the case of the Prosecution, the case of that party,
7 would be.
8 I'm just putting it to you what I thought was the argument and how
9 I understood that.
10 MR. STEWART: Your Honours, as far as it goes, that's correct. As
11 far as it goes. I think I acknowledged a few minutes ago that there may
12 very well be, as a starting point, a difference between the position of
13 the defendant -- not -- he is, in a sense, just a witness in the case, but
14 for the sort of reasons Your Honour's just summarised. Of course the
15 defendant will know and should know, in the progress of the case, what is
16 against him. But the difficulty about applying that distinction to the
17 present case is that that -- that difference is clearer and satisfactorily
18 deals with the situation in a relatively simple case.
19 Where you have a case of this complexity and this range of
20 material, of course Mr. Krajisnik, and of course the Defence team, have
21 known long before he came to give evidence or long -- well, pretty early,
22 as all witnesses came to give evidence, what the case was against him in
23 its essentials. But as soon as you get one layer below, into all the
24 evidential matters that might be explored, you can't know then. You can't
25 anticipate what all those points are. So if a point -- it comes back to
1 the point, if something is then going to be relied upon -- we gave a tiny
2 example, a tiny but telling example earlier this afternoon. That's what
3 makes it so important to put the points.
4 JUDGE ORIE: That certainly clarifies your position.
5 Mr. Gaynor, I asked you earlier today a question on -- well, more
6 or less asking what your understanding is of the words "talking to," which
7 for me suggest a conversation. I'm afraid that I'm addressing the wrong
8 person. I heard during the -- and I read in the final brief on the issue
9 of knowledge of Mr. Krajisnik that -- let me just find it. It reads in
10 paragraph 397, it says: "Mirko Krajisnik informed Krajisnik about the
11 Ahatovici massacre," and then the reference is made to P292 and P239.
12 When I read the transcript of that telephone conversation, I hear
13 Mirko Krajisnik saying that the bus was attacked by Muslims and that they,
14 perhaps mistakenly, thought that all those in the bus were Serbs. Now, if
15 I read that text - I mean, you can say he gave false information or you
16 could say the information was right - but to bluntly state "Mirko
17 Krajisnik informed Krajisnik about the Ahatovici massacre," yes, at close
18 reading of course it's correct, because Mirko Krajisnik, in that telephone
19 conversation, informed about the massacre. But of course it is in the
20 context of the knowledge of Mr. Krajisnik about reports and information,
21 not about what Muslims had done but about what Serbs had done.
22 I was a bit surprised by this way of using the material, and I'd
23 like to give you an opportunity to explain what made you translate --
24 apart from being cut on the number of pages, what made you present it in
25 this way and whether you would not agree that the Chamber would be --
1 could better look at the details by another presentation?
2 MR. TIEGER: Well, Your Honour, first of all, the mere fact that
3 the Court brings this matter to our attention in this manner is sufficient
4 indication to us that, as the Court said, there might be a preferable way
5 of doing it. The reality of what's communicated here is, as the Court
6 indicated, the Prosecution pointing the Court to the fact that
7 Mr. Krajisnik was advised about the event. I do regret for -- that it
8 wasn't clarified. I'm not going to make the excuse of space limitations,
9 but that plays a role in all of this. We pointed the Court to the
10 specific intercept, so obviously there was no intent to mislead in that
11 respect. I would have welcomed the opportunity, for example, to point out
12 the factors that make that telephone conversation significant, including
13 the location of where it happened, the proximity of the location to both
14 where Mr. Krajisnik lived and where Mr. Mirko Krajisnik lived, the general
15 knowledge surrounding events at that time, the forces arrayed at that
16 time. I don't want to --
17 JUDGE ORIE: That's --
18 MR. TIEGER: You're right, Your Honour, I don't want to add to the
19 brief now.
20 JUDGE ORIE: That's exactly what was on Mr. Stewart's mind. But
21 you would say if you had an opportunity to give more details, then you
22 would have given a bit more reasons why it was relevant.
23 MR. TIEGER: Only two things can happen in this case: Either,
24 based on all the evidence in the case, the Court will make that
25 connection, or the Court will look at it and say, Well, that's not
1 sufficient support for the proposition. But surely there's no attempt to
2 mislead by pointing the Court directly to that intercept.
3 JUDGE ORIE: Yes. Yes, in your final brief, I read in paragraph
4 215: "Bosnian Serb Crisis Staffs were originally formed secret SDS party
5 organs in accordance with Variant A and B."
6 We have a few Crisis Staffs that were established before the 19th
7 of December, 1992, and where it is -- where one could expect that if
8 Crisis Staffs were formed considerably later than December 1992, that the
9 Prosecution would say, Well, they were late, or they were delayed in doing
10 what they had to do. But what about the Crisis Staffs that were formed
11 before the 19th of December? Of course, you could say it's in accordance
12 with. Would they have the same kind of tasks? How do you explain that
13 they were formed in these earlier stages? What's, then, the causal
14 relationship between the instructions and those Crisis Staffs?
15 MR. TIEGER: Well, Your Honour, first of all, I wish I could call
16 to mind the particular Crisis Staffs to which the Court is referring. I
17 do have one in particular in mind, but only vaguely.
18 JUDGE ORIE: I don't have the names here, but I remember one very
19 early and then another one, I think, in mid-October or something like
20 that. I couldn't give you at this moment the -- I just have -- I think I
21 have two in my mind. But yes.
22 MR. TIEGER: Well, I think what's most important to bear in mind
23 with respect to those is their continuing connection to the Bosnian Serb
24 leadership. And if you follow the activities of those bodies, and
25 although I can't point the Court to - apparently the Court can't either -
1 to the specific ones, my clear recollection is that those Crisis Staffs
2 did not operate on a path outside of that undertaken by the many, many,
3 many Crisis Staffs established in response to Variant A and B, but in much
4 the same way, and were established -- I don't want to focus on their
5 establishment so much because I can't at the moment recall either the
6 particular dates or the particular trigger.
7 What I do know is that they, and especially after December 1991,
8 acted in a manner consistent with all the other Crisis Staffs that were
9 formed pursuant to Variant A and B and for the same purpose and under the
10 direction of the Bosnian Serb leadership.
11 Now, whether or not they were stocking horses or -- I do recall
12 one, for example, that was formed in the wake of, to the best of my
13 recollection, the state of emergency that Dr. Karadzic declared on October
14 18th. There was clearly a sense of events moving forward, as we know,
15 after the October 14th and 15th joint Assembly session. So we had the
16 October 15th political council meeting. Immediately thereafter, the
17 October 18th Deputies' Club, the October 18th state of emergency by
18 Dr. Karadzic, and a considerable amount of attention. You'll see many
19 intercepts where Dr. Karadzic is talking about the steps he's going to
20 take. And my recollection is at least one of those, if you'll pardon the
21 term, "premature Crisis Staffs" was formed at that time, very much in
22 response to the situation and in light of the understanding that the
23 Bosnian Serb leadership intended to move things forward so that municipal
24 authorities could be established.
25 So our position would be they were established for essentially the
1 same purpose and followed the same path and were equally beholden,
2 certainly after December 1991 and well prior to that, to the same
4 JUDGE ORIE: Yes. Perhaps later I'll find the names of the two
5 and the dates of the early establishment.
6 There's one other matter, but that's really a very tiny,
7 unimportant matter. If I look at your footnote 360, that's P65, tab 94,
8 pages 40 to 43, it is supposed to contain what Mr. Cizmovic stated on the
9 28th of February, 1992. I don't -- it's not necessary that you respond
10 immediately, but since it's the last day in court, I would have otherwise
11 asked you to find that out. I do not see Mr. Cizmovic speaking on those
12 pages, if I'm right. Perhaps there will be a second --
13 MR. TIEGER: Of course we'll check that, Your Honour.
14 JUDGE ORIE: Yes.
15 MR. TIEGER: My recollection is that that was the subject of some
16 discussion during the course of Mr. Krajisnik's cross-examination. So if
17 it's not, we'll get back to you as soon as possible, of course. But that
18 might be another way in which to check the particular reference.
19 JUDGE ORIE: Yes. Another matter, and I first now address the
20 Defence, although the question will not be for the Defence. The Defence
21 has raised the issue of whether aiding and abetting a JCE would be at all
22 possible, and then you continue, the Defence says it is charged in the
23 indictment. We have serious doubts whether that is possible at all. But
24 if it's possible, then this and this and this would be required. Could
25 you comment on to what extent, apart from whether you could aid and abet
1 to a JCE or, I mean the JCE being not a crime always. I was taught that
2 you have to -- aiding and abetting is aiding and abetting to a crime and
3 not to some -- perhaps, Mr. Gaynor, you could perhaps clarify the issue.
4 It's been specifically raised by the Defence.
5 MR. GAYNOR: Thank you, Your Honour. I think in my submissions on
6 Tuesday, I referred Your Honour to a specific finding, and that is the
7 Kvocka appeal judgement at paragraph 91, which held that it is indeed
8 inaccurate to refer to aiding and abetting a joint criminal enterprise.
9 So that form of liability, it appears, has been recognised as non- -- not
10 fully --
11 JUDGE ORIE: But it still appears in the indictment, doesn't it?
12 MR. GAYNOR: Correct.
13 JUDGE ORIE: So you say we adopt a non-existing -- and Defence has
14 the opportunity to say, well, yes -- so we can ignore that?
15 MR. GAYNOR: I know the Defence has made submissions for what are
16 the elements of that form of liability. But given that the Appeals
17 Chamber considers that it's not a safe route to proceed, our submission is
18 that Your Honours should not proceed down that route. And the Defence
19 submissions --
20 JUDGE ORIE: I'm trying to -- aiding and abetting to a crime that
21 was committed by the JCE. Is that a possibility? Just start --
22 MR. GAYNOR: Yes, aiding and abetting a participant in the JCE
23 appears to be fully accepted. That's also what the Kvocka appeals
24 judgement, I think, says. But joint criminal enterprise itself is a form
25 of liability. Aiding and abetting are a form of liability. When two
1 forms of liability are mixed together, the picture becomes unclear. I
2 think that's the point that the Appeals Chamber was making. To say that
3 there's certainly a possibility to aid and abet a participant or a number
4 of participants or a category of participants who are JCE members.
5 JUDGE ORIE: Do you agree that mixing up two forms of liability
6 would always be confusing or would you adopt that as a general rule?
7 MR. GAYNOR: I'll just consult for a moment.
8 [Prosecution counsel confer]
9 JUDGE ORIE: Let me try to -- perhaps -- if I instigate someone to
10 commit an offence, Well, you could do this, and I instigate and encourage
11 him very much to do it, and then at the very moment when he's about to
12 commit the offence, I'll help him, giving him a tool or whatever, that
13 would be instigating and aiding and abetting, perhaps.
14 MR. GAYNOR: Yes. I agree that it's a very factual-based
15 analysis, that on a very simple crime, that a crime can consist of
16 instigating partly and aiding and abetting partly and committing. And I
17 think there's a good example in the Gacumbitsi appeals judgement where the
18 accused was present at a massacre site, he ordered that a massacre take
19 place, he participated in separating Tutsi from other people, and he
20 encouraged those present to begin the killing process. So in that
21 situation, different forms of liability in respect to the various stages
22 do seem to reflect correctly his criminal responsibility.
23 So as a general proposition, I think, Your Honours, the law does
24 seem to recognise that Your Honours can find -- in analysing the criminal
25 responsibility, you can make findings under different heads of Article
1 7.1. However, mixing forms of criminal responsibility under 7.1 with
2 joint criminal enterprise does not appear to meet with strong approval in
3 the case law so far.
4 JUDGE ORIE: Yes. Mr. Stewart asked specific attention to
5 paragraph 97 of the Kvocka case, a substantial contribution where, in that
6 paragraph, even without reading it as a whole, it's stated that it depends
7 on the circumstance and it might well be that sometimes it is -- there is
8 a need to establish that there was a substantive contribution.
9 Any comment on -- because you put it very briefly and say, That's
10 not required. But at the same time, in paragraph 97, of course, we find
11 that it may well be required under certain circumstances. So therefore
12 the question is whether we are facing such circumstances in this case.
13 It's not an answer to the problem to say, in general terms, because the
14 Appeals Chamber says it depends very much on where you are in whether such
15 a substantial contribution should be established.
16 Now, apart from the general rule that it is not always necessary,
17 is this a case where it should be established?
18 MR. GAYNOR: No, Your Honours, our position is that the accused in
19 this case made a very substantial contribution to the joint criminal
20 enterprise. So the matter is really a technical one in this case.
21 I think what the Appeals Chamber was saying at that paragraph was
22 that, as a matter of law, it is not necessary to establish that the
23 accused made a substantial contribution to the JCE; however, as a matter
24 of assessing evidence, it is easier to find that the accused participated
25 in the JCE if he made a substantial contribution.
1 As we've made submissions, the participation of this accused in
2 this JCE was very substantial.
3 JUDGE ORIE: Yes. Let me see. Yes, Mr. Tieger, perhaps to assist
4 you, Bosanski Petrovac, 24th of October, 1991 -- by the way, I misspoke
5 earlier when I referred to the 19th of December, 1992. I meant, of
6 course, 1991.
7 MR. TIEGER: Of course, Your Honour.
8 JUDGE ORIE: So that's Bosanski Petrovac. Well, you dealt with
9 matters that happened in October 1991.
10 MR. TIEGER: I think the same may be true about Bratunac.
11 JUDGE ORIE: Yes.
12 MR. TIEGER: I think that was established in response to the 18
13 October state of emergency, and then disbanded and then reformed upon the
14 dissemination of Variant A and B.
15 JUDGE ORIE: Yes. Yes, Bratunac was also another one. Yes,
16 that's -- I had two on my mind. I think these are the only two that are
18 MR. TIEGER: Your Honour, if I might offer one quick additional
19 clarification of an issue we addressed before, the Ahatovici prisoners.
20 Again, I'm only trying to focus on any concern that the reference was
21 misleading. One of the factors was that it was addressed in
22 Mr. Krajisnik's examination, and my recollection is that he acknowledged
23 knowing that it was Muslim prisoners who were killed. I think he also
24 explained how he was told, as in the intercept -- I think he was shown
25 that particular intercept, in fact, and I believe that's at - let's see if
1 I have the page number, Your Honour-
2 JUDGE ORIE: What you're saying now -- we'll have a look at it --
3 MR. TIEGER: Sure.
4 JUDGE ORIE: -- is that there may be more support for what we find
5 on this item in your final brief, more than what at this moment you have
6 in the footnote.
7 MR. TIEGER: Correct. And it's slightly beyond that. Enough so
8 that the reference was a snapshot of that and we thought would be
9 understood in light of it actually being raised in court.
10 JUDGE ORIE: Yes. Then let me see. Yes, I think ...
11 [Trial Chamber confers]
12 JUDGE ORIE: The Chamber has no further questions for the parties.
13 Mr. Krajisnik --
14 MR. JOSSE: Could I briefly introduce this, if I may.
15 JUDGE ORIE: Yes.
16 MR. JOSSE: Because I think I should point this out on behalf of
17 Mr. Krajisnik. The statement that he prepared some time ago, as I
18 mentioned yesterday, was translated. I gave that to my learned friends
19 for the Prosecution yesterday. They considered it; they made some
20 remarks. I've discussed those with Mr. Krajisnik.
21 He has made a few additional remarks pursuant to the submissions
22 that the Prosecution made two days ago, and so the Prosecution are not
23 aware of everything that Mr. Krajisnik is going to say and I have informed
24 them of that fact this morning, after my visit to the Detention Unit.
25 In addition to that, trying to smooth the matter as best we can,
1 we have provided to all three translation booths the B/C/S original and
2 the English translation of what Mr. Krajisnik is going to read. But as I
3 have already stated, there are a few corrections that he's going to make
4 that don't appear necessarily on those documents.
5 And secondly, he's going to extemporise, to a limited extent, at
6 one juncture in the address that he wishes to make to the Chamber.
7 I emphasise, Your Honour, that I explained that to Mr. Tieger this
8 morning after I had returned from the Detention Unit.
9 Finally this: Simply for information, Mr. Tieger stated that
10 Limaj was prevented from making an 84 bis statement because he had
11 testified. I'm informed by someone who's been following these proceedings
12 that though that is true, the reason Limaj was unable to make that
13 statement was because he had made an opening statement pursuant to Rule 84
14 bis. I mention that for information only.
15 JUDGE ORIE: Yes. Thank you for that information.
16 Mr. Josse, I take it that you're aware of what are sensitive
17 issues for the Prosecution as far -- the portions that are added, did you
18 identify anything you'd consider to be of such a sensitive character?
19 MR. JOSSE: No, and -- I did not. Could I also emphasise that my
20 learned friends were most cooperative and reasonable about the matter.
21 Some of the passages I was frankly a bit concerned about they had, so to
22 speak, sanctioned in any event. Nonetheless, Mr. Krajisnik and I,
23 jointly, have edited a reasonable amount of his original effort, partly in
24 view of the time that the Chamber is going to allow him.
25 Your Honour, the 84 bis statement will take Mr. Krajisnik at least
1 three-quarters of an hour, perhaps nearer an hour. I am bound to submit
2 on his behalf that it does appear the Chamber has the time, and to hurry
3 him at the end of over 300 days of hearing would be most unfortunate, we'd
5 JUDGE ORIE: Yes.
6 [Trial Chamber confers]
7 JUDGE ORIE: The Chamber agrees to proceed as suggested,
8 Mr. Josse.
9 We'll give an opportunity to you, Mr. Krajisnik, to make your
10 statement after the break. However, before the break, although it may
11 well be that you have discussed it already with counsel, I'd like to point
12 out that Rule 84 bis says, and although it's usually not -- it was not
13 adopted as introducing the last word, but that's the way we use it, but
14 it's still a statement under Rule 84 bis. That means that we allow you to
15 make a statement. That statement is still under control of the Trial
16 Chamber, although we hope that the way in which it was prepared allows us
17 to not intervene at any moment and just to listen to you rather than to
18 interfere with your statement. It is an unsworn statement, which means
19 that you don't take an oath for that. In many systems, an accused never
20 takes an oath, and in those systems that is not considered to be an
21 invitation not to tell the truth. But you'll not make any solemn
22 declaration, and oath, of course, is not the right word in this Tribunal.
23 You'll not be examined about it. No one will be in a position to put any
24 questions to you about it. We'll just listen to you.
25 At the same time, the Chamber, as the Rule says, shall decide on
1 the probative value, if any, of the statement. That means that you should
2 be fully aware that if you say something, that we could, during our
3 deliberations, accept what you said and use that in whatever direction;
4 against you, in favour of you. We'll have to consider what probative
5 value it has.
6 And when we're talking about probative value, you should be aware
7 that it's not only that you admit something or that you say that something
8 happened in December, but also if you say something which is very much
9 consistent with the evidence we received, we might understand that as --
10 well, we see that you're consistent in your approach of the case. But
11 it's also possible that if you come up with something, an explanation or
12 something else, which would be difficult to understand in view of the
13 evidence we have, we might also draw negative inferences out of that.
14 It's your statement, and we'll decide on the probative value. It
15 might well be that we say it has no probative value at all. But you
16 should be fully aware of that.
17 I already now announced that after the break, when you've made
18 your statement, that that concludes the trial in this case. I'm not going
19 to thank everybody. That doesn't mean that this Chamber doesn't share the
20 feelings that were expressed already in respect to people in this
21 courtroom, outside the courtroom, but I'm not going -- Mr. Krajisnik, your
22 statement will be the last matter we'll hear. We'll then, after having
23 heard your statement, we'll start our deliberations on the judgement, and
24 the next thing you'll hear from us is then the judgement.
25 So, therefore, if there's any matter which the parties would like
1 to deal with before the end of this trial, then please raise it now. It's
2 like in a marriage: If there's any objection, bring it now or be silent
3 forever, isn't it?
4 MR. TIEGER: Thank you, Your Honour. In the expectation that this
5 is the last time I'll rise in this case, I just wanted to respond quickly
6 to the Court's inquiry about the, I think, footnote 360.
7 JUDGE ORIE: 360.
8 MR. TIEGER: Yes. The reference to pages 40 to 43 were a
9 reference to an older translation that was -- and the proper reference
10 should be 29 to 31, as I understand it.
11 JUDGE ORIE: Thank you for this information.
12 So if there's nothing else, then we'll now have a break. We'll
13 resume at 25 minutes to 6.00.
14 --- Recess taken at 5.12 p.m.
15 --- On resuming at 5.44 p.m.
16 JUDGE ORIE: Mr. Krajisnik, the Chamber gives you the opportunity
17 to make a statement. Please proceed.
18 THE ACCUSED: [Interpretation] Your Honours, first of all, I should
19 like to thank you for having it made possible for me to address you with
20 my closing remarks, this being my last attempt at proving the truth. I am
21 satisfied that I have done everything within my power, participating in
22 the presentation of evidence, in assisting my Defence team, and in the
23 preparation of documents, and I would have, indeed, regretted the fact had
24 this last attempt been denied to me. Thank you, Your Honours, and I thank
25 everybody for making it possible for me to make these closing remarks.
1 As I was preparing my closing remarks to address this Trial
2 Chamber, I was in a dilemma. I asked myself, What should I say as I
3 summarise a job that my Defence has been doing over the last six and a
4 half years? Not only was it a challenge for me because I undertook a task
5 that I had never faced before but also because I was doing it in a matter
6 which involved myself. In fact, I even had the feeling that I would have
7 performed a similar task more successfully if I had been doing it on
8 someone else's behalf. Also, I was additionally burdened by the fact that
9 I had to deal with a portion of my own life and that I had to unplug my
10 emotions lest I be accused of failing to maintain the required level of
12 Such were my thoughts before I composed this text and before I
13 could say to myself unequivocally that I was a hundred per cent certain
14 that the difficult decision to read from prepared remarks was the correct
15 one. That is why I was perhaps at a certain point leaning towards not
16 writing anything but speaking extemporaneously and saying what I felt and
17 believed would be appropriate to articulate in these closing remarks. I
18 nevertheless rejected the idea of addressing the Chamber extemporaneously,
19 without the benefit of a written text.
20 I decided to compose a final statement, not only because I wished
21 in that way to express my respect for the Chamber and for everyone else
22 who has been following these proceedings over the last two-and-a-half-year
23 period but also for the sake of history, which is something I regard very
25 Therefore, for the sake of history and for my own fate as well,
1 right at the outset, I wish to say the following to Your Honours: I
2 address you as a man who believes in God and Divine justice. I believe in
3 truth and its ultimate triumph. I believe in justice and truth because,
4 were I to believe that injustice and untruth could prevail in the end, the
5 world would lose its meaning for me. But I want the world and the people
6 who share those values to survive, and I take this view because I consider
7 that the truth can bother only those whose consciences are unclear and
8 who've committed a crime or an injustice against someone else, and I am
9 not to be found in that category of men.
10 Having spent time in prison -- having spent, sorry, over six and a
11 half years in prison in The Hague, as I have pointed out, on more than one
12 occasion I have attempted to take stock of everything that I had done.
13 And I invariably reached the same conclusion; that throughout my life I
14 had acted consistently. I never consciously aligned with those who acted
15 unjustly and inhumanely. If something resembling that ever did occur, it
16 was without my knowledge or approval. I assure you that I would champion
17 the truth, even if I had to pay a dear price for it and regardless of how
18 dear the cost of that to me. I say this because it is my sincere belief
19 because there is no statute of limitations for a crime. I do not mean
20 that in the legal sense of the statute of limitations. I say that as a
21 man who believes in God's statutes, according to which a crime might
22 conceivably evade terrestrial justice but not God's, and his ultimate
23 punishment which is generally much stricter and longer lasting than that
24 of any earthly tribunal.
25 If I were guilty but a Court acquitted me, I would be afraid that
1 the punishment that should have been meted out to me would devolve upon my
3 For all those reasons, Your Honours, although I fully appreciate
4 that the key to my fate is in your hands, I will not, my respect for you
5 notwithstanding, plead with you for mercy but will exhort you to rather
6 decide according to the dictate of your conscience and with due regard
7 only for the evidence that had been put before.
8 I say this fully aware of the danger that it poses, because my
9 Defence team did not put before this Chamber even a minimum quota of
10 arguments to demonstrate my innocence and to convey my version of the
11 truth, although all that was available to the Defence team from the very
12 start of these proceedings. May I remind you: That is the consequence of
13 the anomalies that have been plaguing my defence throughout these
14 proceedings, something to which I had drawn attention repeatedly.
15 Notwithstanding that, I address you with an appeal that you bring
16 your judgement based on the evidence that has been heard, because my truth
17 - as you have yourself reminded me on various occasions - was heard by a
18 panel of experienced professional Judges and not by a jury, although I
19 have nothing against a jury in principle. I believe that you have heard
20 and seen sufficient evidence during the trial to enable you to come to a
21 decision based on truth and justice.
22 I say this because I am persuaded of it also by the position
23 you've taken in the final stages of the trial when you decided that you
24 did not need any additional witnesses or evidence from us. I gained the
25 impression that you had already made your decision, or that you had
1 reached a firm view. And I even go as for as to assume that final
2 statements may be required more as a procedural formality than as an
3 additional argument on behalf of the Defence.
4 When I say that I am convinced that you have already reached your
5 decision, I want to be frank and sincere to the very end: I'm convinced
6 that your decision is a just one, and that you have arrived at the view
7 that the indictment against me is entirely baseless.
8 Prior to expounding the reasons why I claim that I am not guilty,
9 I should like briefly to touch upon the final -- the closing arguments of
10 the Prosecutor. Actually, I have written an entire reply to the
11 Prosecutor's claims and submissions, but due to the briefness of time, I'm
12 just going to enumerate a couple of these reasons. I've divided them into
13 two groups; one is of a general and the other group are those of a
14 specific nature.
15 First of all, I should like to say that as I was listening to the
16 closing arguments of the Prosecutor, I have to say that I was really -- I
17 really was stressed out. I really was experiencing the kind of stress
18 that I had experienced when I was arrested and brought here in my pyjamas.
19 Unfortunately, I had many stresses in my life - when I lost my wife,
20 when I lost my father, and on other occasions - but even though I was
21 aware of the contents of the indictment, this is something I would not
22 want no person in the world to experience.
23 Therefore, Your Honours, with full esteem for the OTP and the
24 Trial Chamber, I'm sure that you will bring your decision on the basis of
25 the truth and not on the basis of assumptions, because it is true, as the
1 OTP says, that terrible crimes have happened in Bosnia-Herzegovina.
2 But I'm saying this also on account of something else. Please
3 bear with me. I'm very reluctant to say this: The Serbian people have a
4 negative -- harbour a negative attitude towards the Tribunal at The Hague
5 because they consider it to be putting only Serbs on trial. And I have
6 put in so much effort to prove that this Tribunal is in fact the only
7 venue where I can indeed prove my innocence. Having been charged so
8 heavily under its indictment, this is where I have my opportunity to prove
9 that the Speaker of the Assembly, the president of the Assembly, could not
10 have commanded the army and have been in a position to command those
11 people. So this is something which I appreciate, this opportunity.
12 I should like to remind you, Your Honours, had I been guilty in
13 the eyes of the Muslims and the Croats, they wouldn't have wanted me to
14 be the first man in the Presidency, in the Assembly of Bosnia-Herzegovina.
15 I don't want to go through the entire Dayton Accords procedure. They
16 could have said that they didn't want me to be a member of the Presidency,
17 of the Presidency in 1996.
18 So had it been my intention, in other words, to destroy the Croats
19 and the Muslims - I'm talking about just the Croats now - would our
20 politicians have allowed that to happen? Would they have let the Muslims
21 and Croats cross over to our territory, even bearing arms, through our
22 territory to their own territory? Would we have allowed their treatment
23 in our hospitals? We wanted good relations with the Muslims. We did
24 everything in order for that to indeed materialise. We wanted to have
25 good relations, because without the agreement of all the three peoples in
1 Bosnia, nothing can function there.
2 They said Mr. Krajisnik was able for that position, he is clever,
3 and they spoke in commendable terms about me. If I were clever,
4 gentlemen, I would not be here, I would not be facing this Tribunal. If I
5 were clever, I would have learned how to avoid having to come here. I
6 cannot understand, I fail to comprehend, after this entire trial, what is
7 it that Momcilo Krajisnik could have done? I fail to comprehend this
8 legal logic.
9 And finally, we had 250 statements by different witnesses. We
10 also had expert witnesses taking the stand, and you saw how many witnesses
11 we were able to call and bring. Of course, a much better picture would
12 have been painted if a larger number of people with credibility could have
13 been called to either corroborate or disprove some of the claims made
15 I have been accused of wanting devastation in Bosnia-Herzegovina
16 by force. First of all, I should like to remind you that we had the
17 Cutileiro plan first and foremost, and that on the basis of it we made our
18 entities. It was a voluntary exercise. It was in place by March. By the
19 22nd of April, I went to see Alija Izetbegovic, the late Alija
20 Izetbegovic, to the Assembly, so that we could reach an agreement.
21 After that, on the 22nd of April, if you remember, Karadzic made
22 this platform which we adopted at this sort of consultative meeting, and
23 it said specifically negotiations, negotiations until we have a solution.
24 On the 12th of May, we proposed to the European Community to
25 conduct negotiations and never to stop those negotiations. Even if there
1 is war, we should negotiate until a solution is achieved. Prior to the
2 war, did we not have a session of the Assembly of Republika Srpska when
3 Karadzic was asked what were our plans? We said we had no plans. If it
4 should come to war, you will see what our plans are. Peace is what we
5 uphold as our greatest value, and we are championing and fighting for
6 peace. To a question by deputies, what are we to do? He said, when you
7 go to your homes, create your Crisis Staffs. I just want to underline
8 that we did not want to solve things by military might. But once war does
9 arrive, you have no option but to actually accommodate your needs to that
10 exigency because people are fighting.
11 I should like to remind you that prior to the 12th of May we were
12 in Geneva negotiating with the other two national communities in order to
13 reach a solution. After that, we went to Grac to talk to the Croats to
14 see what was disputable, what was controversial, also with the desire to
15 arrive at a political solution.
16 I was also accused that I said that the Muslims wanted an Islamic
17 state. If you look at my statement, I said some of the representatives of
18 the Muslim negotiating team called for an Islamic state. And as proof of
19 that, I said that in Muhamed Filipovic's book, at page 57 and 58, it's
20 clearly seen that Mr. Kouacevic [phoen], a professor, made an analysis, a
21 study, and he justifies in it how an Islamic state -- the first one in the
22 Balkans after the Ottoman Empire could be created. I just mention what
23 some people were -- [B/C/S on English channel] -- Izetbegovic's team who
24 were in favour of the creation of such an Islamic state. So this was
25 probably a slip of the tongue that was referred to.
1 Thank you. I apologise.
2 It was horribly a slip of a tongue. It was said Glogova. Glogova
3 allegedly happened at the instructions of the republic authorities, as
4 represented by Goran Zekic. Please look at Deronjic's testimony. He said
5 when Goran Zekic got killed, that same evening he started the Glogova
6 action in retaliation. Maybe it was a slip of the tongue, but Goran Zekic
7 could never have done anything about that.
8 I'm also accused of having had the power to have some people
9 released from prison. You gave two examples; Mr. Stanic from Ilijas and
10 Mr. Karahmetovic where it was actually Mr. Mandic who arranged his
11 release. Please, Mr. Stanic was a friend of mine from before. And I
12 called the chief and asked him, Could you please let my Croat friend -- I
13 called Trifko Radic. I called Mandic equally about the other man,
14 Karahmetovic. I told him Karahmetovic is someone I used to play football
15 with when I was a child. Those were a couple of cases, but there were
16 many more in my life. In fact, I helped whenever I could help. Whenever
17 I could ask for a favour on anybody's behalf, I did. About that girl that
18 you remember, I have a girl of my own; of course I did it. I would have
19 done, and I did, everything whenever I was able to. I'm sure you would
20 have done the same if it were your colleague.
21 It is claimed here that Muslims left Pale and that they were
22 forced to leave. But, please, let me remind you Mrs. Plavsic was a
23 commissioner at Pale precisely when it was happening, and when you asked
24 her here, she said she didn't know a thing for the duration of that entire
25 period when that was going on. I know it's hard to prove things here, but
1 you should have asked her.
2 Another charge that's leveled against me is that on the 11th of
3 August, in Banja Luka, there was a proposal to include in the agenda the
4 issue of prisoners, and allegedly I didn't allow it. Please, Your Honour,
5 look at just one page in that transcript of that session. You will see
6 that what I actually said is, We have another session tomorrow. Let the
7 government prepare the background material and then we'll include it in
8 the agenda. The government didn't prepare the background material, and
9 without the background material, we were not able to discuss such an
10 important matter. And the government failed to do that because ten days
11 later they had a planned meeting in Banja Luka for which they had to make
12 a report.
13 The Prosecution also says that I knew about the arming of people.
14 It was a long time ago. Let me just tell you, remind you in fact, that my
15 own place, my birthplace, Zabrdze, did not have any weapons. And if I
16 were to arm anybody, I would have armed them first to enable them to
17 defend themselves. That's what a witness explained here, how they
18 actually got the weapons. Dusan Kozic, and the distribution of weapons.
19 I didn't find the words to explain it at the time. I didn't have
20 time, in fact, to explain it. Please find that report. It doesn't have a
21 stamp, it doesn't have an indicated addressee, it doesn't follow the
22 procedural format. Please don't look at the English. In the way it was
23 written in Serbian, it could never have been sent to anyone except as a
24 working draft. I keep thinking about it, to this day, and I know now that
25 I could never have received that report.
1 Just another word about Davidovic. Davidovic said that he had
2 seen a document to the effect that I ordered the ethnic cleansing of
3 Bijeljina. I gave you two documents, and please look at them. He said he
4 had given that document to Jerkovic. The document that I did indeed give
5 speaks about when Jerkovic started to deal with changes. That was in
6 '92. And I received another document whereby he was authorised by an MP,
7 Milan Tesic, who was a commissioner for the government. Quite simply, I
8 didn't find my way around at that moment.
9 Another thing that was stated here was that Krajisnik was able to
10 find out from Mrs. Plavsic, from Karadzic, from Koljevic, from Djeric, and
11 then they say he was able to walk around Bosnia and Herzegovina and to get
12 his own information. It's difficult for me to say this: From April until
13 the end of August, I had a wife who was ill and three children I had to
14 care for. I had my full-time job in the Assembly, and I was conducting
15 negotiations at Pale. After the 3rd of August, I had three children to
16 take care of on my own, and I couldn't simply go travelling around
18 Mrs. Plavsic says that I was able to see about the crimes myself.
19 Nobody, nobody ever reported any crimes to me. They would have never done
20 that. They would have come to me to brag about something or maybe ask me
21 for a favour. If somebody had accused me of doing that, in fact of not
22 travelling relative to a period two years later, then there would be some
23 sense in it.
24 Now, as for the extended Presidency, I will tell you literally in
25 bullet points what was stated here, just to remind you.
1 On the 25th of July, 1992, if you remember, when we set out to the
2 London conference, there was this statement made by Karadzic that he was
3 being accompanied by member of the Presidency Koljevic and Speaker of the
4 Assembly Krajisnik. That same day there was another War Presidency
5 meeting, and that's when the members of the Presidency took their oaths.
6 Not before that. You have the record of that meeting. It's all written
7 there. All those sessions and all those records, I'm not sure I saw them
8 all at the time. Maybe I did, maybe I didn't.
9 But Mrs. Plavsic said she hadn't seen a single one. All of those
10 meetings were said to be held in the state of immediate danger of war.
11 None of them was called a meeting held in a state of war.
12 We had a witness here who spoke about those records. If you look
13 at his testimony, you will understand why things were organised that way.
14 Bogdan Subotic, Dragan Kapetan, Rajko Kasagic are among the witnesses who
15 denied the existence of the extended Presidency. You have also Gojko
16 Djogo. His evidence was not admitted. Milan Trbojevic is another one.
17 And let me remind you, he said we considered that the extended Presidency
18 was the three-member Presidency, and that Karadzic was on it. You will
19 see that if you look at his testimony.
20 Slobodanka Hrvancanin denied the existence of that Presidency as
21 well. Momcilo Micic did too.
22 There was no state of war at the time, and the record of that
23 Presidency session of the 30th of November says exactly that the extended
24 Presidency cannot be introduced, whereas in the Prosecution's version,
25 somehow by mistake, it says "cannot be maintained." In fact, it should
1 read "it cannot be introduced because of the state of war."
2 If I had been that important as they claimed after the
3 constitutional changes, I would have become president of the republic.
4 Instead, I remained president of the Assembly and there were another two
5 people included in the Presidency instead of me.
6 Let me remind you of the constitutional law envisaging the
7 establishment of the extended Presidency in a state of war. You have seen
8 that, on the 30th of May, the government adopted that, gave it to Karadzic
9 for his signature, and it was not discussed at the Presidency session on
10 the 30th of May. There was just that decision about municipal
11 Presidencies. It was scheduled for promulgation on the 1st of July, and
12 the date of that decision is the 2nd of July.
13 I looked at that decision made by the Muslim authorities. They
14 made an official decision which reads: "Hereby we establish the extended
15 Presidency in a state of war," et cetera, et cetera. On our side, that
16 decision was never actually adopted and promulgated. Only on the
17 municipal level was it done. There was only the decision about
18 commissions adopted, not the decision on the extended Presidency.
19 You have seen a relevant letter, that session of the Presidency of
20 the 26th of October, 1992. At that session, on the record of that
21 session, it says: "Momcilo Krajisnik, member," whereas the letter I wrote
22 on that day to the Main Staff reads: "Momcilo Krajisnik, President of the
23 Assembly," and signed by Momcilo Krajisnik with a stamp of the Assembly.
24 If I had been member of that Presidency, I would have signed myself as
25 such at least to the letter -- in the letter to the Main Staff.
1 Another reference is made to the 1st of September, 1992. If you
2 look at it, there are two sessions on the 1st of September. One of them
3 includes a point of the agenda: "Find offices for the Assembly and the
4 Presidency." Those were two separate bodies. There were several
5 conclusions that state the government needs to consult with the president
6 of the Assembly and with the Presidency. And in every record, every
7 transcript, you will see that everybody understood clearly that those were
8 two different bodies. Yes, we did -- we were based in one and the same
9 building, but then we moved to different places.
10 There is not a single order, decision, not a single paper that I
11 signed as a member of the Presidency, and I think it is -- it has not been
12 proved and it has not been substantiated in any way. At the end of the
13 day I would have been aware of being a member of the Presidency and I
14 would have been proud of it. Why not? It's a much higher post than
15 president of the Assembly.
16 Now, if you ask me on what I base this stand of mine that I'm not
17 guilty, let me remind you why I believe that all parts of the indictment
18 have proven to be baseless.
19 First of all, although that in and of itself cannot be regarded as
20 a criminal activity, it was demonstrated that I was not a leading member
21 of the SDS. I base this assertion on the fact that, although I was an SDS
22 member and also a member of the main board and of the personnel commission
23 during the period covered by the indictment, that is not sufficient to
24 make the finding that the person was a leading member of a political
25 party, in particular because it is now clear that the main board of the
1 Serbian Democratic Party, during the second half of 1991 up until April of
2 1992, when the armed conflicts broke out, was convened at most three
3 times. During 1992 there was not a single meeting, nor was the SDS even
4 functioning as a political party.
5 Also, the personnel commission of the SDS did not hold a single
6 session, nor did it make a single personnel decision. The personnel
7 policy was the province of the executive board of the SDS, of which I was
8 not a member and not a single session of which I attended.
9 Several witnesses confirmed that the party and state functions
10 were separate within the SDS. As an obvious example of that, the fact was
11 adduced that Dr. Karadzic, as president of the party, did not stand for
12 member of the BiH Presidency in the 1990 elections, whereas Alija
13 Izetbegovic and Kljuic and Pejanovic and Krsmanovic, they were all
14 candidates for the BH Presidency. So he was not a candidate for the --
15 for a member of the Presidency in the 1990 elections, as well as the fact
16 that ministerial nominees for cabinet and other positions in BH were not
17 party people. Just to remind you, with the exception of two Serb
18 ministers who were SDS members, the rest of them were not members of
19 parties but they were in authority; they were in power. There was a
20 division between party and state functions, in other words.
21 I was appointed member of the main board of the SDS in mid 1991,
22 but that did not mean that I had become a party functionary. I was
23 appointed in response to the party's political needs because of the renown
24 in which I was held as president of the BiH National Assembly and not with
25 a view to my being elected to a party position which would make an
1 important and influential SDS member.
2 Secondly, I was not a member of any executive body wherein I also
3 include membership in the Presidency of the Republic of Serbia.
4 Now I'm going to skip over this paragraph and continue with the
5 next one.
6 It is correct that I did attend those meetings, which were called
7 Presidency meetings, just as members of the Presidency and cabinet members
8 attended sessions of the National Assembly. But it was quite clear that
9 they were attending them as guests, with a right to participate in the
10 debate but without a right to any decision-making.
11 Now, that is how I attended these consultative meetings. And the
12 fact that an expanded Presidency, pursuant to the June 2nd, 1992,
13 constitutional law was not formed was confirmed by three -- by key
14 witnesses. These meetings were held involving leading political figures
15 of the Republika Srpska, most often including numerous attendees, but
16 those were consultative meetings, not meetings of a body.
17 I say that those were not meetings of the body, although, since
18 those meetings were attended by Presidency members, the three of them,
19 such meetings would also be dubbed Presidency meetings. But although such
20 meetings may have been held in conditions of an immediate threat of war,
21 they cannot be related to the extended Presidency provided for by the
22 constitutional law implementing the constitution of June 2nd, 1992, which
23 dealt with the formation of an expanded Presidency.
24 The fact which was established beyond doubt is that I never issued
25 a single order or made a decision purporting to act as a member of an
1 expanded Presidency, while Presidency members, as is only normal, were
2 doing that.
3 If the contrary were the case, at least one single document would
4 have surfaced indicating that I did have the authority to punish
5 perpetrators, to order an investigation, or to take any other measures to
6 prevent the commission of criminal acts.
7 It was determined beyond doubt that I was neither authorised to
8 punish anyone nor did I have command over the army and the police, which
9 was confirmed by all the witnesses unreservedly. And it is Mr. Subotic
10 Bogdan, Mladen Kapetina, who were the minister of defence. It is these
11 testimonies which are very important.
12 Also, I did not have any information about the work of the
13 government and its ministries, namely, I was not present at any government
14 session after it was constituted on the 12th of May, 1992, and it was also
15 determined that I did not have the right to influence the decisions of
16 municipal organs. If you remember Mr. Tupajic's testimony, when you asked
17 him, Could Krajisnik replace you? he answered, It was only the Municipal
18 Assembly that had appointed me that could have replaced me.
19 All this means that it cannot be concluded that I failed to take
20 all measures to punish crimes or prevent them from being committed.
21 And I can add to this: That on account of the poor functioning of
22 telephone and other communication links during most of the time period
23 covered by the indictment, I was not, nor was it possible for me to be,
24 informed about conditions in the field of any crimes that may have been
25 committed. They say -- you say I could have been informed by the
1 deputies, but, gentlemen, we had the Banja Luka session of the Assembly on
2 the 12th of May. It was only on the 25th of July that we had the second
3 session of the Assembly, and we only spent a day there and then departed
4 for the London conference.
5 The 1st session, then, was on the 11th of August when we could
6 again take up the issue, but we already had given the government
7 instructions -- the government had already been given instructions to
8 investigate crimes on the territory of Republika Srpska. So it is quite
9 obvious in which period of time I could have had an opportunity to have
10 any dealings with any deputies.
11 Expanding on the above, I can also add that each and every meeting
12 which I attended, and where the slightest doubt was expressed that
13 somewhere crimes may have been committed, concrete steps were taken to
14 check the facts and to punish possible perpetrators.
15 Third, the six strategic goals and the instruction and organising
16 organs of the Serbian people in Bosnia and Herzegovina under exceptional
17 circumstances, also known as the A and B Variants, it was demonstrated
18 that these were not plans whatsoever, at least this is what our think, for
19 a power takeover in regions that Serbs consider to be their national and
20 ethnic territory. Beyond any doubt it was demonstrated that the six
21 strategic goals were not adopted at the meeting -- at the session of the
22 National Assembly of the Serbian people of Bosnia-Herzegovina on May 12th,
23 1992. Only as part of a memorandum, as a piece of information. So it was
24 not a decision in the Assembly decision sense of the word. Otherwise, the
25 A Variant document was not implemented anywhere in Republika Srpska. Not
1 in a single place.
2 If you remember, in some of the municipalities which were referred
3 to by the OTP, it was circulated, it was distributed, but it was not
4 carried out consistently in practice.
5 The six strategic goals were a political platform, and I know
6 that. I participated in the preparations for the negotiations, and we
7 knew what it was that we wanted to achieve with the negotiations and what
8 we wanted to achieve with the international community. And we never were
9 planning war or preparing for war. It is not true, therefore, that we had
10 war objectives.
11 This might have been distributed if found in the field. It might
12 have been distributed by someone, but I really wasn't aware of that. It
13 wasn't certainly the Assembly. Whether it was the party, I have no way of
14 knowing. But we had no influence on that whatsoever, nor on the putting
15 into practice of their conclusions.
16 I have stated here why the six strategic goals were a political
17 objective. I emphasised by mistake that Karadzic said at the time, at
18 this 12th of May session, it was actually I myself who had said it, on
19 page 37. The ERN number is 02149476, and I said, precisely talking about
20 the corridors: "In our negotiations being conducted with the Croat
21 national community, we stated that we would rearrange territories." Here?
22 We never referred to the corridor. And you may see that if anyone has
23 read it."
24 This quote, which I referenced to the appropriate page of the
25 minutes reflects clearly our intention to achieve the strategic goals by
1 political means. Specifically, in relation to this second goal, we were
2 seeking an agreement with the Croat national community, which was a
3 majority population in this part of Bosnia-Herzegovina. We had certain
4 territories there; they had certain territories there. So by exchanging
5 territories, we would also include the territory around Kupres. And on
6 account of that, we held the Grac meeting.
7 All attempts at showing that we wanted to achieve our strategic
8 objective by wars have been clearly proven to be wrong.
9 At that same session, we also adopt an appeal to the European
10 Community that we urge a continuation of the conference until a political
11 solution was found, and to prevent the possible continuation of an armed
13 Let me remind you, gentlemen, this was on the 12th of May. On the
14 13th of May, there was a telephone conversation between Mr. Mladic and
15 Unkovic. Mr. Mladic says we have to respect the truce which was agreed.
16 On the same date, Madam Plavsic was talking to Mico Stanisic and telling
17 him the bombing has to stop because we have to abide by the armistice, by
18 the truce.
19 I apologise. Thank you.
20 On the 13th of May, we were, let me add, in Banja Luka, at a
21 celebration of the MUP day. On the 14th of May - you have it in Mr.
22 Zimmerman's book - Mr. Koljevic and Mr. Karadzic were at a meeting with
23 him and I was in Belgrade. And when I was told here, You were aware of
24 the bombing of Sarajevo, of the shelling of Sarajevo on the 14th of May,
25 no, I wasn't aware. I wasn't there. I was at Pale.
1 I should like to say why these strategic goals were a political
2 platform. On the 12th of May, when we were proposing the negotiations
3 pending a solution, not a single strategic objective had been actually
4 achieved. If we had waged war for that, we would have said, Let us wait
5 for a couple of months and then we will continue with the negotiations.
6 But at that point we said quite clearly we cease all activities at this
7 point; we want negotiations.
8 There was a very strongly adduced thesis here that I was a
9 powerful man. If we analyse some of the evidence placed before this
10 Chamber, we may conclude that this allegation of the Prosecutor was not
11 confirmed. In the majority of these instances, this is a question of
12 misinterpreting some of my personality traits, which is far removed from
13 the sort of power which could have had, as its consequence, the commission
14 of crimes.
15 Furthermore, the imputation to me of personal power is contrary to
16 logic because, for that to be the case, at least one of two conditions
17 would have to -- would have had to be met: Either I must have been
18 invested with legal authority from which such power is derived, or I had
19 usurped the power which was not properly and legally mine.
20 All pertinent legislation clearly demonstrates that I could not
21 have had the requisite legal authority and consequently I lacked the
22 decision-making power. So what remains, then, is only the possibility
23 that I had usurped someone else's authorities. In that event I should
24 have confirmed that in my de facto conduct. And the fact that this never
25 occurred, not in a single instance, was demonstrated by the evidence
1 presented in this trial.
2 My renown and popularity, which some people have called that - and
3 I'm sure they exaggerate it - is something which I acquired as an official
4 of Bosnia and Herzegovina, discharging the duty of president of the
5 National Assembly and not as a functionary of the Republika Srpska. This
6 shows that this is -- what is the issue here is my political prestige
7 built up as a result of my work in the first multi-party Assembly, and
8 that prestige, rooted in the political situation in Bosnia-Herzegovina, in
9 a Bosnia-Herzegovina where we had to deal with the fateful question for
10 the destiny of the people in Bosnia -- of the Serbian people in
11 Bosnia-Herzegovina, was only later augmented in my capacity as president
12 of the RS Assembly.
13 I know, and I'm quite sure that God certainly knows that neither
14 was I not vested with power as part of the public function that I
15 performed nor did I expropriate that power from someone else, thus abusing
16 my position within the political leadership of the Republika Srpska.
17 To demonstrate to you that the thesis of my alleged power is
18 completely unfounded, I will remind the Chamber of the evidence of some of
19 the witnesses who testified on this topic.
20 Initially, while under direct examination, following the deductive
21 method, they attempted to portray my power, they were hard put to
22 exemplify their allegation for the period covered by indictment about my
23 alleged power. It appears tragicomical, but in fact this category of
24 witnesses in fact have described my position in the most graphic way. But
25 what they were describing was not my power but rather something
1 fundamentally different, so far removed from power that it is difficult to
2 comprehend the reason for their confusion.
3 May I remind you, Your Honours, one set of witnesses said that I
4 was known as a man who is faithful to his commitments, who keeps his word,
5 and one, if he were to give a promise, would keep it. For all those
6 reasons I was quite powerful in their eyes. Then others explained, trying
7 to make sense of my power, by stressing the fact that I worked a lot and
8 diligently, performing a variety of tasks, and that I was seeing a great
9 many of people soliciting favours from me. They would comment that they
10 considered me powerful because people would not be coming to me with their
11 concerns unless I had the power to attend to them. So they drew the
12 conclusion that if someone responds to such solicitation, he can be
13 presumed to have the power to do so. And therefore they drew the
14 conclusion also that I was powerful, although, as they themselves stated,
15 they had no knowledge of the substance of my conversations with those
16 parties or what the nature of the expectations from me might have been.
17 They did not, in fact, know that the way in which I lent
18 assistance to those parties was by channeling them to officials who were
19 in a position to help them, and by giving them advice on how to resolve
20 their problems. I may have interceded on their behalf by soliciting
21 assistance from those who did, in fact, have the power to be of real help.
22 So there was this woman with her flat and a problem, and I really
23 could not turn her down. This was referred to by a protected witness.
24 That was one of such cases.
25 The third set of witnesses pointed out what they felt was the most
1 important source of my power, and they revealed to the Chamber that I was
2 powerful because I was performing successfully my duty as president of the
3 National Assembly, thus gaining the support of a broad section of the
4 public; not just of Serbia but also of other ethnicities.
5 Actually, this group of witnesses would add to the above the fact
6 that I took part in the negotiating process with the two other ethnic
7 communities aimed at a political solution to the BiH crisis which helped
8 me to achieve enormous prominence and popularity which they in turn
9 converted into de facto power. They pointed to my participation in the
10 conference on Bosnia and Herzegovina as my most important function, one
11 that, according to them, did not properly belong to me but from which I
12 derived the bulk of my power.
13 However, in saying that, they had turned things on their head and
14 spoke quite inaccurately. They had forgotten or they deliberately glossed
15 over the fact that the Serbian BH deputies, in the founding session of the
16 Serb Assembly, on October 24, 1991, designated me, together with another
17 five candidates - with Mr. Karadzic, Mr. Koljevic, Mrs. Plavsic, Mr. Buha
18 and Mr. Maksimovic - to represent the Serbian national community, ethnic
19 community, in the negotiations with the Muslims and the Croats and their
20 ethnic communities.
21 They also failed to mention that it was precisely in response to
22 their insistence "to have the delegation revitalised" that I proposed to
23 the Assembly on at least two occasions - March 11, 1992, and July 25th,
24 1992 - to select someone else for the negotiations instead of me, and I
25 suggested indirectly that some of them be appointed to the negotiating
1 team, something that the deputies rejected. They glossed over the fact
2 that the deputies did not wish to change the composition of the delegation
3 precisely because they understood the point about "revitalising" the
4 negotiating team as a reflection of the unsound personal ambitions of
5 those who were making it and of their desire to take on a task surpassing
6 their abilities.
7 Had I not been indicted, I never would have discovered that
8 someone could have regarded me as powerful because of my participation on
9 a team which was working on issues of critical significance for the
10 Serbian people.
11 I therefore must now view that accusation as the result of the
12 immaturity of certain individuals and of their personal jealousy, and not
13 as proof of my power. This conviction of mine has been corroborated by
14 some of the highest level political figures of the Republika Srpska who
15 have given evidence before this Court. I believe the Chamber has reached
16 that same conclusion after having listened to their testimony.
17 Related to the above charges is the entirely baseless and
18 untruthful testimony of witnesses Biljana Plavsic, invited by the Chamber,
19 and Milorad Davidovic, on behalf of the Prosecution, concerning my alleged
20 participation in criminal activities during the BiH conflict.
21 Mrs. Plavsic in particular shockingly testified about arms dealings with
22 the Muslim side in which I supposedly took part, and her allegation that
23 she reported to the RS Assembly concerning this issue.
24 Mrs. Plavsic levelled some grave charges against me, stating that
25 in response to her question: "Must we sell weapons to the Muslim side?"
1 She heard, in my presence, Mr. Karadzic's response that it was necessary.
2 Further, she stated that my home in Zabrdze served as a weapons arsenal
3 for that commerce, although it is precisely on the dividing line. It was
4 close to the front line. The house, which was later devastated, where my
5 father was killed, which was later targeted by my own neighbours.
6 In response to that statement, it was my intention to put to her
7 several questions which would have made it manifest that she was not
8 speaking the truth. As I was denied the opportunity to cross-examine her
9 on these matters, and since I was certain that neither this or any similar
10 issue was ever on the Assembly's agenda, I decided to further review my
11 recollections. I was puzzled by the following question: Was she
12 deliberately misstating things in order to harm me, or has she, under the
13 weight of her age, allowed malice to influence her perception of the
14 facts? Unfortunately, the upshot of this little investigation of mine was
15 the conclusion that her misstatement, rather than being a misperception of
16 the facts, was more likely a deliberate attempt to drag my name through
17 the mud. Unfortunately, it turns out that on this point Mrs. Plavsic has
18 deliberately given false evidence.
19 Many witnesses ascribed my close relationship with Radovan
20 Karadzic as one of the sources of my power. This claim is made precisely
21 by those who were nominated by Mr. Karadzic for high posts in the state
22 and in the SDS. Mrs. Plavsic is a prime example, although there were many
23 other witnesses to that.
24 Mr. Djeric and Mrs. Plavsic were nominated by Mr. Karadzic to the
25 highest posts, initially in Bosnia-Herzegovina and later in Republika
1 Srpska. Mr. Karadzic nominated Mrs. Plavsic, not me, as member of the BH
2 Presidency on behalf of the SDS, while Mr. Djeric was nominated first as
3 minister of the BH cabinet and later first Prime Minister of the
4 government of the Serbian people of Bosnia and Herzegovina.
5 When the two of them, as well as others, were being nominated in
6 1990 to high positions in the Bosnian government, I was bypassed. I was
7 not nominated to any high post although I knew Mr. Radovan Karadzic.
8 In contrast to them, I was nominated by the municipal committee of
9 the SDS for Novi Grad as the reserve candidate for deputy on the regional
10 Sarajevo ticket, which included candidates for more than 10
12 Mr. Karadzic's representatives placed my name sixth, that is to
13 say last on the ticket, and I was elected deputy only after a recount of
14 the vote.
15 When I eventually passed as the candidate, I was not nominated to
16 be president of the Assembly. It was Mr. Trbojevic instead. And when he
17 was rejected, not because he was not good enough but because the problem
18 of regional quotas was a problem to the other MPs, I was appointed to that
20 Your Honours, let me remind you when the constitution was changed
21 in December 1991. If I was that important, why wasn't I nominated to be
22 president of the republic? Why Mrs. Plavsic?
23 Let me remind you the time after the war, after the Dayton Accord,
24 when Karadzic abdicated from his post. He did not give it to me, neither
25 as president of the state or as president of the party. Mr. Buha was
1 elected president of the party and Mrs. Plavsic, head of state. At the
2 time of the elections, nobody wanted to be member of the Presidency. Mrs.
3 Plavsic became head of state; Mr. Buha, president of the party; and I, at
4 the time, since they wanted me very much to become a member of the
5 Presidency, I did. I agreed to membership in the Presidency of
7 Since I see that time is pressing, I won't be able to read all of
9 The Prosecution charged that the Serb side established parallel
10 institutions with a view to destroying Bosnia and Herzegovina. Let me
11 remind you of one session of the Assembly. In fact, I want to say that we
12 only made reactive moves in reaction to the conduct of the Muslim side.
13 The late Izetbegovic, in January 1991, came out then with his
14 platform and reneged on his agreement for Bosnia to remain a part of
15 Yugoslavia. They opted for independence.
16 In April, the Serb side raised the issue of regionalisation as a
17 political response, and regionalisation was a completely legal,
18 constitutional option, as it used to be before the war. When even that
19 failed, before the war, we issued that recommendation to suspend
20 regionalisation, because it was already gaining a political dimension.
21 Instead, we wanted to talk about the declaration.
22 When those debates failed, negotiations started on the historical
23 agreement between Muslims and Croats; Serbs, Muslims and Croats, in fact.
24 However, the Muslims withdrew their approval later from that agreement.
25 In September, Izetbegovic himself proposed a certain conclusion to
1 the Assembly, and that was accepted; that nobody should impose any
2 solutions upon anyone else; that instead we would negotiate, forever if it
3 takes forever; that anything is better than waging war.
4 And after that, in October, the Muslims again came up with a new
5 document, the memorandum, to replace the declaration, with the same goals.
6 On the 25th of January, we had that debate on the referendum. All
7 it took was to make a decision to regionalise Bosnia-Herzegovina, and all
8 of us would then take part in a referendum. The agreement was there. Mr.
9 Cengic, President of the SDA, was there and the president -- the prime
10 minister also. And they both agreed that yes, the government would
11 prepare a regionalisation. We agreed. Only 10 minutes later, Izetbegovic
12 again said their approval and said, No, we're going forward with the
13 referendum. When Mr. Cutileiro came, we were so glad that we had reached
14 an agreement.
15 On the 20th of March already, the Muslim side, just before going
16 to Brussels, the Muslim side comes up and says, We were just gaining
17 time. We don't want a transformation of Bosnia-Herzegovina; we want
18 something else. We will invite the opposition and all the patriotic
19 forces. We want Bosnia to remain as it is.
20 I was not working for a division of Bosnia, ever. I was always
21 committed for Bosnia to remain a part of Yugoslavia, just as the entire
22 Serbian side did. But when that failed, when we didn't get the other side
23 to agree, we agreed to Bosnia-Herzegovina instead. And we said, Okay,
24 let's transform it. Let us achieve some sort of autonomy within Bosnia.
25 Your Honours, when we were proposing various options to the Muslim
1 and Croatian side for Bosnia to be a perfectly autonomous state within
2 Yugoslavia, in a very loose fashion, with only a couple of policies and
3 institutions in common on the federal level, when that failed, we accepted
4 the independence of Bosnia and Herzegovina. That can be seen from the
5 Cutileiro agreement, in all the other agreements, except the Vance-Owen
6 Plan. We had all already agreed on everything.
7 Momcilo Krajisnik, as a legalist, always insisted on the
8 agreements that had been reached. We did not want to have a separate
9 entity within Bosnia-Herzegovina. I loved the federal Yugoslavia,
10 together with Slovenia, Croatia, and all the other republics. However,
11 the system collapsed and we couldn't help it. Then our only choice was to
12 do everything we could to prevent war.
13 As for crimes, they say that I could have known about crimes, but
14 let me assure you that I did not know of a single crime. Whenever some
15 you report became available, the smallest indication -- I showed you that
16 document. When Silajdzic told me back then at the airport that there were
17 some girls captive in Foca, two of them were brought there and I was
18 shocked to see them. One of them was pregnant; she was released
19 immediately. The other one I took with me, to escort her.
20 I would have punished every crime had I known about it. I have
21 children of my own. Why on earth would I support criminals? No normal
22 person in the world could have done that.
23 They told me here that I was not a credible witness because I said
24 I had never heard of Keraterm and Omarska at the time. I did not hear of
25 the things that happened in Keraterm and Omarska. I heard them here for
1 the first time, and I was shocked. It was terrible. I didn't know that
2 such things could happen in our age. And that is the -- but then I didn't
3 know about them, and that is the essence of the problem.
4 Ethnic cleansing. Your Honours, I am not claiming there was no
5 population movement. Of course. Serbs moved too. I know that I gave two
6 statements, and I am one of those people who had to leave their home. I
7 still dream of my home, of my birthplace. I would never wish it upon
8 anyone, to experience what I experienced. And I believe those who went to
9 investigate whether these things happened or not. Now, I believe that the
10 great population movements happened.
11 Destruction of religious buildings. I found a publication of the
12 Serbian Orthodox church, and I tendered it to you, not as an attempt to
13 prove that this didn't happen. But this war was going on, and it's
14 incredible how all these churches and other religious monuments and
15 buildings were destroyed, as if some evil spirit was released from the
16 people, all of them.
17 I know that enough evidence was placed before this Trial Chamber
18 to completely refute the allegations of the Prosecution that I committed
19 crimes or that I failed to prevent -- I failed to take measures to punish
20 war crimes against Muslims and Croats during the war in
22 I consider that enough proof was tendered that I made every effort
23 to arrive at a just, political solution. It was demonstrated that the
24 Serbian side did not advocate any solution which was outside the
25 parameters of the position -- outside the parameters of the position taken
1 by the international community.
2 Throughout the war, at all times I was committed to an immediate
3 cease-fire and withdrawal of Serbian forces from significant portions of
4 territory, notwithstanding the fact that Serbs were owners of a
5 proportionately greater percentage of BH territory than members of the
6 other two communities.
7 A large number of documents were tendered here that were not
8 admitted into evidence. The claim that I testified untruthfully is
9 completely unjustified. I never told untruths in my whole life, and I
10 never told them here either. On every day of my testimony, I brought
11 evidence to prove the veracity of what I had said the day before.
12 Unfortunately, a lot of that evidence has not been admitted.
13 I believe that the Trial Chamber has sufficient evidence to
14 completely reject the charges of the Prosecution. I hope that that will
15 be so, because any other decision would be contrary to truth and justice.
16 Therefore, in the name of truth and justice, at the moment when the
17 judgement in my case is close to being announced, I call upon any Muslims
18 and Croats, if they have any evidence against me, to forward it to the
19 Trial Chamber to consider it in its deliberations. I am not afraid of any
20 new evidence because, although I am distressed by the realisation that
21 crimes have been committed against innocent people in the course of the
22 dreadful war in Bosnia and Herzegovina, I remain serene because I am in a
23 position to declare, before God and Your Honours, not only that I do not
24 have a guilty conscience but that I am not guilty in relation to the
25 charges pressed against me by the Prosecution. I hope that you will make
1 a judgement in keeping with the truth and the documents.
2 I want to thank you for your kindness to me over the past two and
3 a half years. I hold nothing against the Prosecutors, because they were
4 only doing their job. I have lost many friends, and everybody seems to
5 have written me off. But I am certain that truth will prevail. I know,
6 Your Honours, that you will make a just decision.
7 Thank you.
8 JUDGE ORIE: Thank you, Mr. Krajisnik.
9 This concludes this trial that started on the 3rd of February,
10 2004. On that day I said that the trial might keep us together for two
11 years. It turned out to be now 31 months that we are together in this
13 The judgement will be delivered in due course, and the date of the
14 delivery of the judgement will be announced in a scheduling order that the
15 Chamber will issue as soon as it's able to do.
16 We stand adjourned.
17 --- Whereupon the hearing adjourned sine die
18 at 6.59 p.m.