Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Thursday, 21 August 2008

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 8.33 a.m.

 6             JUDGE POCAR:  Good morning, everybody.  Registrar, may I ask you

 7     to call the case, please.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning,

 9     everyone in and around the courtroom.  This is IT-00-39-A, the Prosecutor

10     versus Momcilo Krajisnik.

11             JUDGE POCAR:  Thank you.  May I ask Mr. Krajisnik if he can hear

12     me and follow the proceedings through the translation.

13             MR. KRAJISNIK: [Interpretation] Yes.  Thank you, Your Honour.

14             JUDGE POCAR:  Thank you.  I call for the appearances.  The

15     Prosecutor.

16             MR. KREMER:  Good morning, Mr. President, members of the Court.

17     Peter Kremer appearing with Barbara Goy, Katharina Margetts and

18     Lourdes Galicia, our case manager, will be assisting us this morning and

19     this afternoon.  Thank you.

20             JUDGE POCAR:  [Microphone not activated] Thank you.  Now counsel

21     for Mr. Krajisnik in the matter of --

22             MR. A. DERSHOWITZ:  [Microphone not activated] Alan Dershowitz

23     and Nathan Dershowitz appearing on the issue of --

24             THE INTERPRETER:  Microphone, please.

25             JUDGE POCAR:  Thank you.  The amicus curiae.

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 1             MR. NICHOLLS:  Colin Nicholls appearing with Mr. John Jones.

 2             JUDGE POCAR:  Thank you.  Now, this is the appeals hearing in the

 3     case of the Prosecutor versus Momcilo Krajisnik.  At the outset I will

 4     briefly summarise the appeals which are pending before the

 5     Appeals Chamber and the manner in which we will proceed today.

 6             The appeal deals with crimes committed in 35 municipalities in

 7     the Bosnian Serb republic between 1st July 1991 and 30 December 1992, and

 8     with the role allegedly played in these events by Momcilo Krajisnik who

 9     allegedly held several high-ranking positions within the SDS Main Board

10     and was president of the Bosnian Serb Assembly at the time.

11             Both Krajisnik and the Prosecutor have appealed the trial

12     judgement rendered on 27 September 2006 by Trial Chamber I composed of

13     Judge Orie presiding and Judges Canivell and Hanoteau.  In addition,

14     amicus curiae, who was appointed on 8 June 2007 to assist the

15     Appeals Chamber by arguing in favour of Krajisnik's interests has filed

16     an appeal against the trial judgement.  The Trial Chamber found Krajisnik

17     guilty pursuant to Article 7(1) of the statute of persecution as a crime

18     against humanity, count 3; extermination as a crime against humanity,

19     count 4; murder as a crime against humanity, count 5; deportation as a

20     crime against humanity, count 7; and inhumane acts, forced transfer as a

21     crime against humanity, count 8.

22             It found him not guilty of the crime of genocide, count 1;

23     complicity in genocide, count 2; and murder as a violation of the laws or

24     customs of war, count 6.  The Trial Chamber sentenced Momcilo Krajisnik

25     to a single sentence of 27 years of imprisonment.

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 1             The Trial Chamber in reaching its verdict and sentence found that

 2     Krajisnik participated in a joint criminal enterprise whose objective was

 3     to ethnically recompose the territories under the control of the Bosnian

 4     Serb republic by drastically reducing the proportion of Bosnian Muslim

 5     and Bosnian Croats through the commission of various crimes.  Krajisnik,

 6     who chose and was authorised to represent himself at the appeals stage,

 7     filed his notice of appeal on 12 February 2007.  On 28 February 2008, the

 8     Appeals Chamber authorised Krajisnik to retain the services of attorney

 9     Alan Dershowitz to prepare a supplementary brief on his behalf on the

10     subject of joint criminal enterprise which was filed on 7 April 2008.

11             The Prosecution filed its response brief on 12 March 2008 and

12     responded to the supplementary brief of Mr. Dershowitz on 25 April 2008.

13     The registrar received Krajisnik's reply on 16 May 2008.

14             Let me now briefly summarise Krajisnik's grounds of appeal.  In

15     his appeal, Krajisnik claims that his right to a fair trial was infringed

16     by the Trial Chamber and by the Registry, that he was not represented by

17     competent counsel at trial, and that the Trial Chamber was biased.  He

18     raises numerous challenges to the factual findings of the Trial Chamber

19     denying in particular that he possessed and abused de facto executive

20     power and authority and that he was informed about the committed crimes

21     but did not investigate or punish them.

22             He further submits that the Trial Chamber erred in finding that

23     he was a member of a joint criminal enterprise and that he supported and

24     advocated the commission of crimes against Muslims and Croats.  He also

25     challenges the Trial Chamber's reliance on certain testimonies and its

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 1     findings on the creation, objectives and functioning of the Bosnian Serb

 2     authorities.

 3             The supplementary brief of Mr. Dershowitz raises three grounds of

 4     appeal, arguing that joint criminal enterprise is not a legitimate theory

 5     of liability, that the Trial Chamber erred in not requiring substantial

 6     contribution of Krajisnik to the joint criminal enterprise, and that

 7     joint criminal enterprise as applied to Krajisnik is an inconsistent and

 8     incoherent theory of liability.

 9             I will now turn to the Prosecution's appeal.  The Prosecution

10     filed its notice of appeal on 26 October 2006 and its appeal brief on 27

11     November 2006.  Krajisnik and amicus curiae both responded on 12 February

12     2007.  Prosecution replied to Krajisnik's response on 27 February 2007

13     and to amicus curiae's response on 22nd February 2007.

14             The Prosecution raises a single ground of appeal arguing that the

15     Trial Chamber abused its discretion by imposing a manifestly inadequate

16     sentence.  It requests the original sentence be substituted by a sentence

17     of life imprisonment.

18             Finally, I will briefly summarise the amicus curiae's grounds of

19     appeal.  Amicus curiae filed a notice of appeal on 8 June 2007 and an

20     appeal brief on 31 August 2007.  Prosecution responded on 14 September

21     2007 and amicus curiae replied on 26 September 2007.

22             Amicus curiae raises the following grounds of appeal.  I will

23     just list them.  Krajisnik was not accorded a fair trial, the

24     Trial Chamber failed to provide a reasoned opinion, the Trial Chamber's

25     conclusions on joint criminal enterprise were erroneous in law and in

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 1     fact, the Trial Chamber erred in law and in fact in its findings on the

 2     crimes of deportation and of forcible transfer, the Trial Chamber erred

 3     in fact in its assessment of Krajisnik's hierarchical position, the

 4     Trial Chamber erred in fact in concluding that Krajisnik possessed the

 5     requisite mens rea to be convicted, the Trial Chamber erred in law by

 6     allowing the Prosecution to breach Rule 90(h)(2) with impunity, the

 7     Trial Chamber's approach to Krajisnik's evidence was wholly unreasonable,

 8     the Trial Chamber impermissibly accumulated convictions, and finally,

 9     that the sentence of 27 years imposed by the Trial Chamber is excessive

10     and disproportionate.

11             During this appeals hearing, the parties may argue the grounds of

12     appeal in the order they consider most suitable for their presentation.

13     However, I would urge the parties not just to repeat verbatim or

14     summarise extensively what is in the briefs as the Court is aware of the

15     briefs' contents and has studied them.  I also wish to note in the

16     schedule order of 18 July 2008, the Appeals Chamber has invited the

17     Prosecution to address specific issues during this hearing, issues that

18     do not have to be restated here now.  This invitation is made, I want to

19     stress, without prejudice to any matter the parties or the

20     Appeals Chamber may wish to raise and in no way constitutes an expression

21     of an opinion on the merits of the appeals.

22             I would now like to recall the criteria applicable to errors of

23     fact in law alleged on appeal.  The appeal is not a trial de novo and the

24     appellants must not merely repeat the case from the trial level.  Rather,

25     in accordance with Article 25 of the Statute, the appellants must limit

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 1     their arguments to alleged errors of law which invalidate the decision or

 2     alleged errors of fact occasioning a miscarriage of justice.

 3     Additionally, it should be recalled that the appellants have an

 4     obligation to provide precise references to materials supporting their

 5     arguments on appeal.

 6             This hearing will proceed according to the Scheduling Order

 7     issued on 18 July 2008.  Mr. Krajisnik and Mr. Dershowitz will present

 8     their submissions this morning for one hour and 30 minutes, following 15

 9     minutes pause they will continue their submission for 30 minutes.

10     Afterwards, the Prosecution will present its response for one hour and

11     after a pause continue its response for another hour.  Mr. Krajisnik will

12     then reply for 30 minutes.  Then we will move to the lunch pause, and in

13     afternoon we will continue according to the schedule.  I will not repeat

14     all the schedule as stated in the Scheduling Order.

15             It will be most helpful to the Appeals Chamber if the parties

16     could present their submissions in a precise and clear manner.  I wish to

17     remind the parties that the Judges may interrupt them at any time to ask

18     questions or they may prefer to ask questions following each party's

19     submission.

20             At this point, I would like that we go into private session for a

21     few minutes.

22                           [Private session]

23   (redacted)

24   (redacted)

25   (redacted)

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10   (redacted)

11   (redacted)

12                           [Open session]

13             THE REGISTRAR:  Your Honours, we're back in open session.

14             JUDGE POCAR:  Having said this about the manner in which we will

15     proceed today, I would like now to invite the appellant to present

16     submissions in support of his appeal.  Please, Mr. Krajisnik, you have

17     the floor.

18             MR. KRAJISNIK: [Interpretation] Good morning, Your Honours.  Good

19     morning to everyone present in the courtroom.

20             As you are aware, I testified before this court for 40 days,

21     because at the time when I arrived to The Hague Tribunal and to the

22     Detention Unit I was convinced that I was not guilty, and I never

23     questioned my intention to be subjected to testimony and to

24     cross-examination on any issue arising out of the indictment.

25             You received some material that I drew in goodwill.  It is in

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 1     English, and it's a chart, as I called it, references.  I wanted to help

 2     you in understanding the case, and I wanted to respond in kind to the

 3     very proper conduct of the Prosecution lately.  Even though they are my

 4     opponents they provided a lot of documents to me which I attached as

 5     exhibits.

 6             I would be happy to answer any of your questions because I think

 7     that this is how we will reach the truth in the best possible way.

 8             As I have said, I testified before this Court deeply convinced

 9     that I would prove the truth.  Unfortunately, the Trial Chamber did not

10     believe that I spoke the truth and the judgement reflected that.

11             You will see from all of the documents, and I'm telling you that

12     everything that I said during my testimony was reinforced in my appeals

13     brief and corroborated by various exhibits which prove that what I said

14     was how it was.  Thanks to you and God I was given an opportunity to

15     represent myself, and I would like to thank the Appeals Chamber for that

16     even though it's difficult to represent oneself.  It is a hard task, but

17     as a result of that I managed to understand well the trial judgement so

18     as to be able to analyse it and link it.  Once you link all of the

19     events, you come to a conclusion which is different than what the trial

20     judgement says.

21             You will see in my appeals brief that I used a method to respond

22     to each finding in the judgement then show why that finding is not true.

23     So I urge you -- I urge you -- or, rather, I will be happy if you put any

24     questions to me.

25             I am accused here of the gravest crimes that exist.  Listening to

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 1     you just now, I was horrified.  It was so difficult to listen to what you

 2     said because these crimes are so grave and much evil resulted from them.

 3     It is my personal opinion that from the very beginning of my political

 4     work I was committed to preserving peace in Bosnia and Herzegovina and

 5     reaching an acceptable political solution.

 6             Since you gave me an opening, I won't spend much time speaking

 7     about the appeal.  I have to tell you about the sequence of events which

 8     clearly indicate that I could not have been and was not a member of any

 9     JCE.  You have a lot of evidence showing that in January 1991 we had a

10     session of the Assembly of Bosnia and Herzegovina, whose president I was,

11     where we decided to come up with a platform about what the future of

12     Bosnia and Herzegovina should be, because we could see that Yugoslavia

13     was about to fall apart.  It was decided at that time that Bosnia needs

14     to be decentralised and reorganised to ensure that it had as few

15     responsibilities as possible at the level of Yugoslavia.

16     Mr. Izetbegovic, who was the president of Presidency, was greeted with

17     applause.  I was proud because I saw that we would preserve the peace.

18             Let me digress.  My entire family and my ancestors always warned

19     that Bosnia was a specific area and that every even minor conflict was

20     remembered for many years afterwards and that everything needed to be

21     done to prevent any conflict from arising.  This is why we were happy

22     that we had found this solution.

23             The next solution came about one month afterwards.  For different

24     unforeseen circumstances the other side came up with a declaration on

25     sovereignty, presenting a completely different solution whereby Bosnia

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 1     was to secede and to no longer remain part of Yugoslavia.  That was a

 2     shock to us, and we, the Serbian side, vetoed this document.  The

 3     constitution of Bosnia and Herzegovina provided for this possibility to

 4     veto a proposal if it went against vital national interests.  So we said

 5     let's put it to the council and discuss it there and then find a

 6     solution.  One month later, as we discussed it at the council, all three

 7     sides accepted the proposal and one month later, one of the sides came up

 8     with this new solution that the declaration would be accepted if the

 9     Serbian side agreed to it.  And then in April, there was regionalisation.

10     It was a political response.  It was a political response of the Serbian

11     side to unconstitutional behaviour of the opposing side.

12             Then negotiations started and in July there was a historical

13     agreement, as we called it, of the two largest sides, the Muslim side and

14     the Serbian side.  It was a time of celebration.  People were hugging

15     each other.  They were happy that there would be no war.

16             You will find an exhibit among the documents, KU81, reflecting

17     the event where I addressed the public saying that there would be no war,

18     that we have to nurture good neighbour relations.  And all we wanted was

19     to preserve the peace.

20             The agreement was supposed to be signed and implemented.  It

21     wasn't in the interest of the Muslim side.  No.  Somebody suggested to

22     them, and they gave up on that agreement during the very TV show where it

23     was about to be proclaimed.  And then in September there was another

24     Assembly session that I presided over, and Mr. Izetbegovic took the floor

25     and he said that we would talk to each other for 100 years if necessary

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 1     only to preserve the peace.  Nobody would threaten anybody else.  And

 2     once again everybody was happy.

 3             Now we are covering the time period from my indictment.

 4     Everybody was saying, sure, we will discuss.  We will talk among

 5     ourselves only to preserve the peace.  And then in October once again

 6     they tried to push the declaration, and then Serbian side vetoed it.  I

 7     concluded the session Assembly and then after that they voted on this

 8     platform on the declaration of independence.  This is when it all went

 9     downhill.

10             Then they said the Serbian Democratic Party, and that was the

11     majority party representing the Serbian people, they said, "You don't

12     have the mandate to represent all Serbs.  There are other people voicing

13     other concerns."  And what did we say then?  We say we would interview

14     the people.  We announced a referendum, and we said that the Serbs would

15     express their will as was provided in the constitution.

16             In order to know who gave what answers, the ballots containing

17     these questions were of different colour reflecting different ethnicity.

18     What happened afterwards?  A warning was issued by the Serbian side to

19     the Muslim side to go back to the constitutionally provided order because

20     that was the greatest conflict between two leading sides, the Serbian

21     side and the Muslim side, even though the Croatian side was a completely

22     equal partner.

23             After the referendum, the people decided that Bosnia should

24     remain in Yugoslavia.  I'm now speaking of the Serbian side and minority

25     of Muslims and Croats.  It was a negligible percentage.

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 1             Following that, all of the regions pretended to be in existence

 2     where in fact they were not, and there came a request that we should

 3     verify the regions.  And we did not verify them all the way up until

 4     somebody asked the Serbian side to recognise the independent Bosnia and

 5     Herzegovina.  It wasn't possible for them to recognise Bosnia and

 6     Herzegovina until the constitution was changed, and the constitution

 7     could not be changed without the Serbian side which had one-third of the

 8     votes, and they needed a two-third majority.  Then they out-voted the

 9     Serbian representatives in the parliament in order to accept this

10     request.

11             I would like to draw your attention to the fact that the Serbian

12     side said, "We, our deputies, will form Serbian Assembly, and their only

13     task will be to start operating when the vital interests of the Serbian

14     people are in danger."  That was the main task of the Serbian Assembly.

15             The Serbian deputies left the parliament of Bosnia and

16     Herzegovina, and I demanded that I continue to preside over the Bosnia

17     and Herzegovina Assembly, and I worked until the war erupted leading both

18     Assemblies.  I did not want the war to begin.  People used to say, "If he

19     leaves," meaning me, "the war would begin."  There was a psychological

20     kind of war.

21             Then the war began or, rather, in the beginning of 1992, the

22     Muslim side said that they would start on the path of independence and

23     that there would be no going back.  At that time, the republic of Serbian

24     people from Bosnia and Herzegovina was established, and the negotiations

25     had already started on the new organisation of Bosnia and Herzegovina.

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 1     What happened then?  Mr. Cutileiro got involved, and they came up with a

 2     solution.

 3             I have to reiterate that once we were given this solution we were

 4     all very happy.  You have evidence indicating that on the 25th of March,

 5     at the -- or, rather, just before the conference on Bosnia and

 6     Herzegovina, the Muslim side came and said we had pretended all along.

 7     We did not want to participate in negotiations.  We did not want this.

 8     And the whole system crashed.

 9             On the 27th of March, we held the Assembly, and we voted on the

10     constitution, saying that there would be a solution there for the entire

11     Bosnia and Herzegovina.

12             On the 26th of January, we held a session of the Assembly, and

13     there were many very reasonable deputies there, and I used my influence

14     over them to force them to go into the joint Assembly of Bosnia and

15     Herzegovina.  The agreement had been reached and -- or, rather, had the

16     agreement been reached the Serbs would have recognised independent Bosnia

17     and Herzegovina.  It would not have been a question.  The only question

18     was whether the Serbs would rule themselves or somebody else would rule

19     them.

20             And why were the Serbs afraid?  We asked the Muslims to remain in

21     Yugoslavia.  We asked them that because they were the majority nation.

22     We were afraid.  We did not want to be a minority.  And they said, "We

23     cannot remain in Yugoslavia."  They said, "Why don't you remain with us

24     in Bosnia?  You would receive your own unit."  We said we wanted to have

25     a territorial continuity, and they said, "You cannot have territorial

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 1     continuity but you can exchange lands with other sides and then you would

 2     gain the territory you wanted, and you would have your own unit where you

 3     would have absolute or relative majority."  And then everything was

 4     clear, all the way up until the beginning of the war when the referendum

 5     of independence was held.  It was then that the incident in Sarajevo took

 6     place where the groom's father was killed in Sarajevo and demonstrations

 7     broke out and the war erupted in Sarajevo.

 8             There were only two things or, rather, three things that I did

 9     during the war.  I was president of the parliament and I was a

10     negotiator, and I was never a member of any Presidency.  I said here

11     hundreds of times that I was not a member of Presidency.  They said I

12     wasn't a de jure member but they said that I was a de facto one.  I

13     wasn't that either.  There is not a single document saying that

14     Momcilo Krajisnik was member of the Presidency.  Nor did I have any

15     competencies within the Presidency.  And when this happened, when the war

16     erupted, the shells were falling and exploding all over Sarajevo, and I

17     went from Ilidza to Sarajevo to meet with Mr. Izetbegovic to find a

18     political solution for Sarajevo because that was the key so we could

19     continue discussing.  And we agreed on finding the solution.  I went back

20     to Zabrdje.  I did not have any further contacts with him, and then this

21     was abused once again, saying that Momcilo Krajisnik wanted Sarajevo to

22     be divided.

23             So once again I was not a member of any JCE.  I did everything in

24     my power to find a political solution, and five years later, I

25     participated in Dayton talks.  We managed to ensure peace there.  It

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 1     wasn't perfect, but let other new generations now find better solutions.

 2             They said that I was a member of the JCE and that I worked on

 3     supporting the SDS in creating their organs and other organs.

 4             Gentlemen, I was not a candidate of the leadership of

 5     Republika Srpska or, rather, the SDS when the multi-party elections were

 6     organised.  It was just a coincidence that I became president of the

 7     Assembly when the political life in Bosnia and Herzegovina became quite

 8     active.  I was not a member of any board.  I did not participate in any

 9     pre-election campaign events.

10             One year later when I did become a member of the Main Board of

11     the SDS, I took part in only three sessions of the Main Board that were

12     combined with the Deputies Club.  I did not take part in a single

13     Executive Board of the SDS meeting.  I was not involved in the personnel

14     policy of the party.  I studied management and organisation, and I knew

15     that I could only perform the tasks for which I had been officially

16     appointed.  I did not take part in the government cabinet session when it

17     was established on the 12th of May.  I did not take part in any meetings

18     of any Crisis Staff except for once when they came to visit.  It was the

19     Crisis Staff of Ilijas.  And now people are saying, "You assisted the

20     SDS."  Well, the SDS had deputies in the parliament, that's true, but

21     during the war the SDS froze its activities.  I'm now speaking of the

22     facts only.

23             They said that I knew of certain crimes.  Gentlemen, you have my

24     appeals brief before me [as interpreted], and I said in my testimony that

25     the Main Staff never informed me.  I never issued any orders of the

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 1     Main Staff of the army of Republika Srpska.  You have evidence before you

 2     indicating that they had never sent any report to me.  The same goes for

 3     MUP, the Ministry of the Interior.  They had never sent any reports to

 4     me.  I said that during my testimony, and now I corroborated that by

 5     various documents that I submitted to you.  I never received any reports

 6     by any Crisis Staff.

 7             The judgement says that I had been informed by the members of the

 8     so-called JCE.  Gentlemen, you have documents indicating that

 9     Mr. Karadzic and I sat at a press conference where we were told that

10     there were no civilians in any gaols.  Mrs. Plavsic said publicly in an

11     interview that there were no civilians in any gaols.  Mr. Djeric said the

12     same that there were no civilians in prisons.  Mr. Stanisic sent a

13     request to inform whether there were any civilians in the prison.

14     Mr. Mandic in his interview to the OTP said that Momcilo Krajisnik was

15     never close to him until he was replaced and now they are linking me to

16     these people.

17             I didn't even know Arkan until 1995.  Slobodan Milosevic exerted

18     pressure on us saying you have to do this, you have to do that.  And now

19     they're claiming that I was in some JCE together with him.

20             Now that I'm saying this, I'm remembering the following:  They

21     said that I gave a contribution to the JCE.  You have an exhibit there.

22     On the 18th of March, Momcilo Krajisnik called to arms.  That's what

23     they're saying.  I as a member of the negotiating team simply conveyed

24     what we had agreed upon with the Muslim side on the previous day, and I

25     simply said it's better if we draw maps out in the field rather than in

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 1     an office, but several words were dropped from this text and it was

 2     wrongly quoted, taken out of context implying that I called to arms.  I

 3     used the word "separation" several times.

 4             Let me now reiterate that the only meaning of the word

 5     "separation" was what we had agreed upon with Cutileiro.  What was the

 6     compromise that we reached?  Bosnia was to be an independent state and we

 7     were to separate along the ethnic lines, the territorial lines, and we

 8     were to have our own constituent unit.  You cannot have your own unit

 9     without a demarcation.  This was later done in Dayton.  And had we done

10     it earlier through Cutileiro's plan, many more people would still have

11     been alive, and I would have avoided this fate, and many other -- many

12     more other people fared much worse than I did.

13             What is being imputed to me here in the appeal, and you've seen

14     that was that I was informed of crimes.  You can see it in the appeal

15     here.  Not a single municipality from which the Muslims have left, and

16     that's Bosanski Novi, Petrovac, Kljuic, Prnjavor, and all the rest.  None

17     of these municipalities had informed anyone from the leadership about

18     that, myself included.

19             You have Pasic Radojko, other witnesses.  They all said we did

20     not inform leadership about the departure of the Muslims.  I just knew

21     about the departures of Serbs because 15.000 Serbs from Sarajevo arrived

22     in Pale and they were all happy to have remained alive and no one said

23     that that was not true and they said fine.  One has to flee from the war.

24     And then when peace comes, like in any other war, everyone will go back

25     to their own homes.

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 1             I did not submit a resignation as speaker of the parliament of

 2     Bosnia and Herzegovina hoping every day that a solution would be found at

 3     some conference.  Once a solution is found, we will all go back and we

 4     will continue as things happened through the centuries.  That did not

 5     happen.  Different arguments are being taken into account here, arguments

 6     to prove that Krajisnik knew of certain matters.  I'm just going to say

 7     one thing by way of an illustration.

 8             They asked me, "Do you know that Sarajevo was shelled on the 14th

 9     of May?"  And I said I don't know.  And "Do you know that on the 10th of

10     June there was supposed to be another shelling?"  And I said I don't

11     know.  And then they said, "Do you know that a big group of Muslims on

12     the 14th of May were in Pele and exchanged?"  And I said I don't know.

13     And then they said, "Well, you don't know anything.  How can you not know

14     when that happened 100 metres away from your office and that's where the

15     Muslims were and Sarajevo was below Pale?"  And I said I really don't

16     know.  That's the only answer I gave and you have it there.  I was not in

17     Pale.  And finally, on the 14th and 15th I attended the Assembly, and I

18     was in Belgrade, and I did not know that when I was responding.  And on

19     the 10th of June it is certain that the Chamber would have ruled

20     differently if they knew on the 10th of June, rather, that this witness

21     was not telling the truth, rather than on the 9th of June a decision was

22     made, Karadzic, Koljevic, Plavsic, Djeric, Krajisnik, Mladic, saying that

23     the use of artillery had to be stopped vis-a-vis Sarajevo.  And now

24     somebody decides that Sarajevo would not be shelled on the 9th and on the

25     10th, all of a sudden Mladic says somebody -- Sarajevo is going to be

Page 187

 1     shelled, and the person who says that has a good reason to say it because

 2     he is responsible for that.

 3             There are other facts that you will see too.  You will see that I

 4     objected to each and every fact that was presented there and you will see

 5     that I did not say anything by way of giving a mere statement.  All of

 6     this is evidence, hard evidence, and I hope that this is going to portray

 7     a different picture from what is reflected in the judgement.

 8             Not to go into other crimes, but I would like to assure you that

 9     I know that whenever there was some indication of a crime, whenever I

10     attended meetings, instructions were immediately given to investigate

11     this, to see what this was all about and to punish the perpetrators.  You

12     will see in each and every one of these remarks that that was the case.

13     I'm going to give an illustration of the Assembly from the 24th until the

14     26th of July that took place in Jahorina.  That's when the MPs came.

15     This was the first Assembly outside Banja Luka.  And you know what?

16     People were saying MPs were talking about hundreds of crimes, about the

17     fact that the state was not functioning and they said to me what have --

18     and then they said to me here what did you do -- do about this?  And I

19     said, Well, I don't know.  I went to a conference.  I gave you evidence

20     here.  On the 28th of July there was a meeting of the government and this

21     was on the agenda, the resolutions of the Assembly.  They took measures,

22     they sent a team to Banja Luka to investigate all of this and Karadzic

23     gave an order because he was the Supreme Commander to disband the

24     so-called special units from Novi Grad that were creating problems, and

25     Mladic said the paramilitaries should be disbanded.  Whereas the minister

Page 188

 1     of the MUP was sent to Birac and Mr. Dukic had come from there and he

 2     said that he had replaced all the Muslims.  They were all the Muslims who

 3     were judges there.  I did not know about that when I testified.  I did

 4     find out in the meantime and I've presented all of this to you so that

 5     you could see.

 6             They tell me that I had to know about things that I was informed

 7     of from international media and other media.  Believe me, Judges,

 8     whatever I heard -- I mean, I hadn't heard of any one of these pieces of

 9     information, rather, I did not believe all of these things.  They said

10     Momcilo Krajisnik's father committed suicide because he renounced his son

11     because he had left with the Chetniks.  I heard that people were saying

12     that lions were eating children in the zoo and that they were showing

13     cemeteries saying that this is where Muslims were buried and it was

14     actually Serbs.  You would not believe the anti-propaganda at the time.

15     I had to ask the people only who were in charge of different matters.

16     You're talking about JCE here and I said has anything come out of this

17     and they said no, no, nothing, and they said that publicly.

18             I just listened to what was going on to the Serbs.  That is the

19     other thing I heard about.  I did not hear about anything else.

20             What I'm trying to say now is I am being cautioned, I mean we've

21     split up our time and, you know, these lawyers are dangerous people so I

22     really have to stick to what we agreed upon.

23             They told me I was a powerful man.  I did not know why I was

24     powerful.  I did not issue a single order.  I could not carry anything

25     out, so what kind of power can that be?  When I sat there as a witness

Page 189

 1     and as I was watching the Judges and watching you today, I realised why I

 2     was powerful.  The person who is down there looking at the people down

 3     there, and I was the president of the parliament and that's the person

 4     who gives people the floor and reaches conclusions and so on, that person

 5     seems omnipotent.  And then if this person Momcilo Krajisnik even

 6     attended negotiations, then he is really important.

 7             And I'm going to end on this note while giving this example:

 8     Once this lady came Mrs. Plavsic was the head the commissioner's office

 9     from Pale and then I had this delegation from Pale coming in saying,

10     "There was a shelling of Pale and we don't want her on the school board."

11     And they said, "What do you mean?"  "Well, we don't want to have a school

12     because a shell is going to fall here and then the children will be

13     killed.  Are you going to be held responsible for that?"  Well, who is

14     going to be responsible if for 500 years there is no school?

15             So then I said call your parents and see whether they want to

16     send their children to school on their own responsibility.  They called

17     the parents and all the parents said that the children should be sent to

18     school, and there was no shelling ever after that.  And then they say

19     people would not go to see Krajisnik if he were not powerful and if he

20     did not resolve their problems.

21             Let me just end on this note, what the Prosecution presented

22     yesterday, these references here.  I would like to assure you all of this

23     is in the English language so I could not understand it very well, but on

24     the basis of what I did manage to understand, not a single one of those

25     things is the result of a joint criminal enterprise.

Page 190

 1             I'm just going to give you two illustrations:  In Pale -- well,

 2     Pale I know about.  Crncalo was a witness.  He did not know that he had

 3     signed an agreement on property, that he should safeguard Serb property

 4     and that the Serbs should safeguard his property.  He did not know that

 5     he was going to Sarajevo voluntarily and he did not say one of the basic

 6     things.  The Muslims did not leave Pale because somebody had expelled

 7     them.  Rather, they left because 60 Serbs had been killed a while before

 8     that, so they left through a gorge, having received the word of the

 9     Muslims that nothing would happen.  However, they killed them

10     nevertheless.  So they were scared.  So they wanted to leave.

11             You have proof of the fact that I did not know that the Muslims

12     had left.  The session on the 26th of July, you have a statement to the

13     effect that Muslims are still there at Pale on that day because we all

14     thought that that's the way it was, and -- but this was all the result of

15     what the local authorities did.

16             Another thing that I am going to end on, Bijeljina is the first

17     element in the JCE.  That's what they say.  Gentlemen, on the 27th of

18     March we have a session.  That is only a question of three days.  At this

19     session we say we need peace.  We have to preserve peace.  This is our

20     Assembly saying this.  War is not a good thing.  Again we will have to

21     negotiate, and there was no plan whatsoever.  What was stated publicly,

22     and you have this by way of evidence, before this there was a conflict in

23     Brod and before that in Kupres when the Serbs were attacked.

24             In Bijeljina, there was no reason for the Serbs to attack the

25     Muslims.  The Serbs held power in their hands 100 per cent.  That is to

Page 191

 1     say they did not have to have a takeover.  It was a conflict among people

 2     locally.  No one knew about this.  I was in parliament in my office, the

 3     parliament of Bosnia and Herzegovina, I did in the know that this was

 4     going on.  I testified about that here and I asked the person over the

 5     telephone, I said, "You are interested in what you are liberating, but if

 6     you cannot help us do not do anything to unhelp us."

 7             I will have another occasion to address you.  Once again, I thank

 8     you for your patience and I hope that I did not take too much time from

 9     my lawyers.  I gave them a lot of time, but then I see that once I get

10     talking, I even have to omit certain things without mentioning them.

11     Thank you once again.

12             MR. N. DERSHOWITZ:  May it please the Chamber, my name is

13     Nathan Dershowitz and I appreciate the opportunity to share the argument

14     with both the defendant and my brother Alan Dershowitz.

15             The overall problem with the decision below is that it conflates

16     three different concepts into one.  The first is the political arguments,

17     views and actions that had been taken to establish a separate Bosnian

18     Serb republic within Bosnia-Herzegovina.  We have heard extensive

19     testimony just now, and if you read the record, what is crystal clear is

20     that Mr. Krajisnik was the principal person responsible for seeking to

21     implement the negotiator, the spokesperson, the leader in that sense of

22     the activities in order to arrive at a peaceful solution.  There were

23     numerous problems, and I'll go through that in a moment, but you have to

24     separate that which was said politically, that which was sought to be

25     accomplished through negotiations and discussions with two other areas of

Page 192

 1     concern.

 2             The second area of concern is the actual war that subsequently

 3     took place.

 4             There is a third area and technically the only area that should

 5     be of concern to this Tribunal and to the Chamber below, and that is by

 6     definition the war crimes which by definition are violations of laws or

 7     customs of war.  So you have three separate categories, and the decision

 8     below, and I invite the Court recognising these distinctions to review

 9     the decision below because you will see that Mr. Krajisnik has been

10     convicted on the basis of statements that he made that were political

11     statements articulating views as a representative of a position that was

12     being asserted that was totally, completely legitimate.

13             A tribunal to adjudicate who is responsible for violations of

14     international humanitarian law must make this distinction between these

15     matters as clearly as humanly possible.  I recognise that it is an

16     extraordinarily difficult task, but it is an essential task.  It is the

17     essential task to distinguish between those who articulate politically

18     acceptable views, even politically unacceptable views, and then those who

19     engage in war and then those who engage in war crimes.

20             Here the way the JCE was used eliminated the distinctions, and if

21     you read the decision, you will see that the efforts to create a separate

22     Serbian-Bosnian republic resulted in people being declared to be war

23     criminals.  The result in the instant case is in direct conflict with the

24     report of the Secretary-General accompanying the statute and the language

25     and objective of the statute.  Though eschewing guilt by association, the

Page 193

 1     Trial Chamber below's decision when carefully reviewed demonstrates that

 2     there was guilt by association for those who espoused a political view,

 3     those who carried out the war and those who committed war crimes.

 4             There is no question that Mr. Krajisnik was a strong, vocal

 5     advocate for protecting Serbian interests and sought to avoid Serbia

 6     being a powerless minority within a separate country of

 7     Bosnia-Herzegovina.  There is further no doubt from this record that he

 8     was a or the principal negotiator seeking to establish that position.

 9     What is seriously in doubt, what is not only unclear but inconsistent

10     with the -- internally within the decision below, is any indication that

11     Mr. Krajisnik had the common objective to carry out violations of the

12     statute, the permanent removal by force of Bosnian and Muslim -- Croats

13     and Muslims, and that they participated during the indictment period in

14     any criminal acts to effectuate the common criminal goal.

15             JCE and its lack of clarity as to what these elements are must be

16     established to find culpability.  This is the heart and soul of this

17     case.  It is a question as to whether you find people being war criminals

18     who engage in political advocacy and were vocal in support of a position

19     that they had every right to articulate.  In fact, if their positions had

20     been suppressed, that would be a violation of human rights.  They had

21     absolute right to articulate those views.  They even had the right to

22     exaggerate the efforts that they were seeking to -- that which they were

23     seeking to secure in order to posture for purposes of carrying out their

24     objectives, and that is completely lost by this decision below.

25             The problem which started with the Tadic decision has now reached

Page 194

 1     a point where the elements are so elastic and unclear that they virtually

 2     have no meaning.  Moreover and equally dangerous and what is the heart

 3     and soul of this case is that the concepts now criminalise those who are

 4     engaging in legitimate protected behaviour that we should be encouraging,

 5     not discouraging.

 6             There are numerous fundamental problems with the Tadic decision,

 7     and I will not seek to relitigate those questions at the present time,

 8     but I think it's clear if you look at the precursor to Tadic and Tadic

 9     itself, the case that Judges Cassese and Mumba in Furundzija started,

10     they had a very, very limited concept.  In the preliminary case, the one

11     that was decided in 1998, which was the first case to discuss a common --

12     a common enterprise or common objective, you had one person seeking to

13     secure information through interrogation of a victim while at the same

14     time another person with him was actually committing the -- the abuse,

15     the physical violence, and the rape.

16             A decision had been made that you can find the person who is

17     seeking the information as part of this, that person was engaged in a

18     common enterprise with the person who was actually committing the crime.

19     There was an acquittal, by the way, on rape charge on that case.

20             That concept of two people carrying out the act together, the

21     actus reus in that situation is so far removed from the concept as it is

22     presently applied that one could not recognise that concept in those

23     earlier cases.  The same thing is true in Tadic.  The Court first made

24     the preliminary determination that Tadic was a part of the group of

25     people that actually committed the atrocities, but they could not point

Page 195

 1     to him specifically as a person who shot someone.  It does not take a

 2     grave extension of actual participation to find when five people go into

 3     a town and people are killed in that town by that group, by that group,

 4     that all five people are responsible.  That again is so far removed from

 5     the way it is being used in this case that it is non-recognisable.

 6             The core problem --

 7             THE INTERPRETER:  Could the speaker please slow down for the

 8     purposes of interpretation.  Thank you.

 9             MR. N. DERSHOWITZ:  The core problem with Tadic is that there was

10     a desire to look for theories in order to justify what was stated in that

11     decision as being the legitimate objective, and that is a recognition

12     that under international law all participants in serious violations of

13     international law could and should be found responsible for the acts that

14     they committed.  The Tribunal went so far as to suggest that it not only

15     had the right but it had an obligation to find a theory to justify that.

16             More recent decisions by this Tribunal have recognised that it is

17     inappropriate for the Tribunal to be the entity that establishes policy,

18     but it is being blind to reality not to recognise that when you're

19     dealing with levels of culpability, who is responsible, who is to be

20     punished, that you are dealing in policy and that there is a continuum, a

21     line has to be drawn on the continuum as to who we hold culpable.  That

22     is a policy decision that is -- normally occurs by a statutory grant of

23     power.  When you use phrases which are so elastic as have been used in

24     this JCE, you have lost all concept of original accountability and

25     knowledge that you are committing or potentially committing a crime.

Page 196

 1             In this complex world with -- with complex historic and ethnic

 2     and religious clashes, it is essential that the core principles of

 3     international culpability be capable of being articulated before a person

 4     is charged and not after.  The problem in the instant case is that not

 5     only were these principles not articulated before, but after reviewing

 6     the decision below and the positions of the Prosecutor, there is a lack

 7     of clarity on all basic elements of JCE.  And more disturbing, once the

 8     elements were articulated in the decision with some degree of clarity,

 9     the facts contained in the opinion do not support the Chamber's

10     conclusion of culpability.

11             Let me be very specific.  In paragraph 883, the Chamber below

12     articulates the elements of JCE.  What's interesting just as an aside is

13     you can look at that articulation if you go through many of the decisions

14     by Trial Chambers and by this Court, you will see different formulations

15     of the same principles of JCE.  If you review the Prosecutor's

16     presentation, there are slightly different articulations of JCE, but the

17     degree of modification becomes essential to an understanding.  Had there

18     been a statutory grant, you would look at the words of the statute, but

19     when you have case law development, there is a tendency to expand and

20     extrapolate constantly on the concepts.

21             The first concept as stated by the Trial Chamber:  "A joint

22     criminal enterprise exists when a plurality of persons participate in the

23     realisation of a common criminal objective."

24             I would suggest that that language would seem to be relatively

25     easy to apply in a factual context, but the reality is anything but in

Page 197

 1     terms of this case.

 2             Let me deal with the two ends or the three ends of that problem.

 3     If you begin with the -- I guess it's the indictment itself.  The

 4     indictment in this case is so over-broad as to be unbelievable in terms

 5     of its description.  Let me read you paragraph 7.  The indictment says:

 6     "Numerous individuals --" now bear in mind where the history of JCE

 7     began, with participants who we knew, participants who were present,

 8     participants who engaged in the activity but participants who may not

 9     have been actually the physical hitter but clearly a participant, holding

10     someone or interrogating someone while someone else assaults them is

11     clearly a participant.  But let's see what's charged in this case as

12     compared.

13             It says:  "Numerous individuals participated in this joint

14     criminal enterprise.  Each participant by act or omission contributed to

15     achieving the objectives of the enterprise."  And then it lists the

16     defendants and it says, "they worked in concert."  I think "worked in

17     concert" is conspiracy law.  No one wants to call it conspiracy because

18     conspiracy is a substantive crime, and if you were to acknowledge that

19     it's a conspiracy, you would clearly be violating the statutory

20     provisions.

21             But then it says:  "With other members of the joint criminal

22     enterprise including," then it lists a few names.  It then says:

23     "... and other members of the Bosnian Serb leadership at the republic,

24     regional and municipal levels, members of the SDS leadership of the

25     republic, regional municipal levels, members of the Yugoslavian People's

Page 198

 1     Army, the Yugoslav army, the army of the Serb Republic of

 2     Bosnia-Herzegovina," and it then says -- I'm skipping parts, "the Bosnian

 3     Serb Territorial Defence, the Bosnian Serb police, members of the Serbian

 4     and Bosnian Serb paramilitary forces, and volunteer units and military

 5     figures, political figures from the Socialist Federal Republic of

 6     Yugoslavia, the republic of Serbia, and the Republic of Montenegro."  I

 7     think I'm the only one not included in that general category.

 8             It is an overwhelmingly expansive category including everyone who

 9     in any way supported the Serbian point of view.  Not the war, anyone who

10     was supportive of a Serbian point of view.

11             You then had in the decision a listing of names of people who

12     were then added at the end of the case as the specific people who may

13     have been members of the JCE.  Then the concern that was addressed in the

14     Brdjanin case and addressed by this Tribunal in its July 18th Scheduling

15     Order then comes into effect.  And what I mean is that's the other end of

16     the equation with respect to the persons.  And you have starting off a

17     clear indication as to who are the members of the JCE.  You had the

18     question which the Tribunal resolved as to whether those who actually

19     commit the crimes on the ground have to be members of the JCE, and the

20     answer was "not necessarily," but you must show the link, the direct link

21     between a member of the JCE and then the person who actually perpetrated

22     the crime.  So if you have three or four members of the JCE all agreeing

23     and one undertakes the task of then retaining someone, hiring someone,

24     persuading someone, securing someone to actually commit the crime on the

25     ground, you have the necessary linkage.

Page 199

 1             What has occurred in this case is absolutely the opposite

 2     conceptually, and that is you start off with a group of people, and I'll

 3     get to the common objective, but just the persons, a group of people,

 4     then anyone who engages in any activity suddenly becomes a member of the

 5     JCE, and then anyone who then directs anyone to commit a war crime is by

 6     definition made a member of the JCE.

 7             That's what occurred here.  It is so far removed from what was

 8     contemplated by the Judges in Tadic that I suggest it is a totally

 9     different concept unrelated to the original concept, but if you allow it

10     to expand as it does, you are engaging in charging people solely by guilt

11     by association.

12             My brother Alan will address in more detail the problem that

13     relates to when you do that and how it applies in an international

14     setting.

15             But if you go then to the second element that's listed in the --

16     in the decision as necessary in order to prove that someone is a member

17     of the JCE, you run into at least the same if not worse problems.  It

18     says:  "The common objective, the first form of JCE exists --" let me

19     just digress for one second, and that is they talk about the forms of

20     JCE, I and III.  The only one that's really discussed in this opinion is

21     JCE I, and in the most recent submission, now the Prosecutors are

22     claiming JCE III.  When you cannot even tell which concept of JCE is in a

23     400-page decision and a finding of liability, you are obviously inviting

24     a disaster, and that's what occurred in this situation.

25             But going back to the quote it says:  "The first form of JCE

Page 200

 1     existed with a common objective amounts to or involves the commission of

 2     a crime provided for in the statute."

 3             I suggest that if you look at the indictment here, the decision

 4     suggests clearly that the joint criminal enterprise must be a stated

 5     statutory crime.  The common objective has to be a state -- stated

 6     statutory crime.

 7             I should say that the Prosecutor in its submission, and I refer

 8     the Tribunal to paragraphs 35, 36, and 37, even on that simple item there

 9     is confusion.  They cannot -- you cannot tell from the submissions that

10     have been made here as to whether the objective has to be -- the

11     objective, not the means, whether the objective has to be a statutory

12     crime or whether the means can be the statutory crime.  They float back

13     and forth.

14             But the way the decision is written, it is clear that the crime,

15     that the objective must be a statutory crime, but the way the indictment

16     reads here, it says:  "The permanent removal by force or other means."

17     That added language is very, very important for the present situation,

18     because it is indisputable that Mr. Krajisnik, through his negotiations

19     and other efforts, was seeking to work out a solution where there would

20     be voluntary, consensual, constitutionally derived methods of

21     transferring populations if the populations chose to.  When you set up a

22     separate entity within the context of Bosnia-Herzegovina, people will not

23     be comfortable if there is a majority Muslim population in one area and a

24     Serbian population in the other.  There is a radical difference.  One is

25     a war crime, and one is a political solution, and the indictment here

Page 201

 1     charges both the war crime and the political solution as being part of

 2     the common objective.

 3             In addition, if you look at the precursor provisions in the

 4     decision and if you listen to Mr. Krajisnik, there is again no doubt he

 5     was seeking a political solution to a highly charged setting in which

 6     there was a history, a history of whether one wants to talk about months,

 7     years or 500 years, there was an underlying history there.  There was a

 8     lot of tension there.  And when you were seeking a solution, he was

 9     seeking a non-criminal solution.  Certainly not a war crimes solution.

10     And to confuse the two, and again I plead with the Tribunal, read the

11     decision recognising the three different categories.

12             Look at the evidence that was cited throughout as to

13     Mr. Krajisnik's personal involvement and you will see that every comment

14     that he made was directed towards a determination that he was supportive

15     of having some security for the Serbians that were living in

16     Bosnia-Herzegovina.  One suggestion early on was they become members of

17     Yugoslavia, of Bosnia-Herzegovina.  Another one is that there is a

18     connection to Serbia, of the Serbs, and the Croatians to Croatia.  And

19     another one which was the political discussion that was taking place was

20     that you then take within Bosnia-Herzegovina a subsection which then is a

21     recognised unit but unit within the government, which is in fact what

22     happened as a result of the Dayton Accords.

23             The solution that he was politically advocating is what

24     ultimately occurred later on, and you have a gap in the evidence,

25     particularly a gap in the evidence with respect to the relevant period of

Page 202

 1     time.  And to the extent that you have him making assertions that if we

 2     have a conceptual agreement that we will have a boundary for Bosnia, for

 3     Serbia, the Serb republic, you have a political determination, it is more

 4     effective for purposes of a political solution if you actually start,

 5     once there was a declaration of independence by Bosnia and Serbia, to

 6     actually start having municipalities in place on the ground.  That is a

 7     factually correct statement.  It's a political position.  It is a

 8     position that every negotiator will take, and there is nothing in that

 9     statement which leads one to believe that if he took that position, he is

10     advocating he is part of a group seeking to have a -- a solution --

11     seeking to engage in the war crimes.

12             Similarly, the decision suggests that all co-perpetrators must be

13     acting pursuant to the common design and have the same criminal intent,

14     and that is the heart and soul of the question.  There is no evidence

15     that he had the criminal intent to permanently remove by force the Muslim

16     population.  Yes, he had the intent, the objective, the goal of having a

17     Serbian municipality of some type established legitimately by

18     constitutional means as he has expressed throughout.

19             The third element in the decision, which is also subject to

20     extreme confusion, the decision says:  "Participation of the accused,

21     this is achieved by the accused's commission of a crime forming part of

22     the common objective and provided for in the statute."  So he had to be a

23     part of the desire, the objective, a part of a -- a participant in the

24     permanent removal by force.  There is no evidence of that.  It says:

25     "Alternatively, instead of committing the intended crime as a principal

Page 203

 1     perpetrator the accused's conduct may satisfy this element if it involves

 2     procuring or giving assistance to the execution of the crime forming part

 3     of the common objective."  And I would request that the Tribunal inquire

 4     of the Prosecutors as to what evidence there is to satisfy this action

 5     which is required, and again you will see conclusory statements.  Those

 6     conclusory statements are all based upon his personal political

 7     assertions of the political position which was acceptable, which is

 8     allowable, which is to be encouraged under the circumstances.

 9             The other core problem that occurs, and I invite the Tribunal --

10     I can go through many of the statements that are made by the Prosecutors.

11     If you look at them carefully, as I have done, you will see a general

12     statement, a citation to the decision.  The decision citation will then

13     be to something which doesn't quite say that, and what it does say is in

14     the early period prior to the outbreak of the hostilities those were the

15     political assertions that he was making in that context, and they have to

16     be looked at with care.

17             As I repeatedly have -- have asserted, you cannot, you cannot

18     have a determination made that if someone is engaged in a politically

19     acceptable conclusion and then others later carry out a similar objective

20     but in a totally illegal way that the person who articulated the initial

21     political position is responsible and has joined in in order to engage in

22     the illegal activity that subsequently takes place.

23             What I'd like to do at this point is turn the floor over to my

24     esteemed colleague, brethren at the bar and brother to proceed unless

25     there are any questions to be asked of me as to the part of the

Page 204

 1     presentation that I have just made.  Thank you very much.

 2             MR. A. DERSHOWITZ:  Thank you, Your Honours.  May it please the

 3     Court, it is a great personal privilege and honour for my addressing this

 4     august body.  It's been a lifetime dream of mine to be able to

 5     participate in the work of a great and distinguished international

 6     tribunal and I appreciate the Court's permitting me to participate in

 7     this argument, even in the limited presentation that I intend to make

 8     about joint criminal enterprise.

 9             THE INTERPRETER:  Could the counsel please keep interpretation in

10     mind.

11             MR. A. DERSHOWITZ:  [Previous translation continues] ...

12     acceptance that there is no mention of joint criminal enterprise in the

13     statute that bestows the authority on this distinguished Court.  This is

14     in contrast to the Rome Statute, for example, which does provide for

15     specific liability based on the act of working in concert with others to

16     a joint goal.

17             Now, if one looks at the report of the Secretary-General, which

18     my brother referred to in another context, which is part of the

19     legislative history of the statute that is the jurisdictional basis for

20     this Court's work, it states that:  "In the view of the

21     Secretary-General, the application of the principle nullum crimen sine

22     lege requires that the international tribunal should apply rules of

23     international humanitarian law which are beyond any doubt part of

24     customary law so that the problem of adherence to some but not all states

25     to specific conventions does not arise."

Page 205

 1             I don't think there is any dispute here today that the JCE

 2     concept is not, is not beyond any doubt part of customary international

 3     law.  There is grave, grave doubt, grave doubt.  The academic community

 4     is bitterly divided over this issue.  We have cited articles which

 5     include within them citations to other articles which raise grave doubt

 6     about whether the entire concept of JCE is acceptable in international

 7     law.

 8             Now, we know, we recognise, we acknowledge that this

 9     Appellate Chamber has repeatedly said it would not revisit the issue of

10     the appropriateness of JCE.  Nonetheless, we feel an obligation to our

11     client and to the law to persist in our objection.  We believe that the

12     idea of constructing a new basis of liability violates the very principle

13     that the Secretary-General talked about.  We believe that the defendant

14     in this case could not have known during the period of indictment that he

15     would be subject to a JCE indictment.

16             Now, the Court, of course, has been very careful to say that

17     joint criminal enterprise is not the creation of a new crime.  It is

18     simply the articulation of an acceptable principle of criminal liability.

19     But functionally, of course, it is a new crime.  It is like conspiracy.

20     It is like RICO.  It is like so many of the other constructs of joint

21     liability, and it is like what appears in the Rome Statute, yet all of

22     those are statutorily authorised crimes or statutorily authorised bases

23     for criminal liability.  This is the first time in our knowledge that

24     what looks like a crime, sounds like a crime, has all the criteria of

25     criminality, has been articulated by a Court in the absence of a clear

Page 206

 1     statutory basis.

 2             Because we recognise that this Court has said it would not

 3     revisit the issue of joint criminal enterprise, we obviously have as our

 4     principal argument to make today to this Court while reserving the

 5     argument that I have just briefly articulated and that is expressed in

 6     our brief in further detail, we do argue that JCE, even if permissible as

 7     a matter of general law, and as my brother argued even if permissibly

 8     applicable to the other cases, like the interrogation rape case which, by

 9     the way, could have been resolved, without introducing JCE as any

10     principle of law.  A person who conducts an interrogation while other one

11     is beating a suspect is a principal.  There is absolutely no doubt that

12     you can convict under ordinary principles of criminal law a person who is

13     in such close intimate connection.  I would say the same thing was

14     probably true about the Tadic case.

15             This case is very different, and we argue that JCE, even if

16     proper, cannot be applied to Mr. Krajisnik's activities even under the

17     Trial Court's findings of fact which we dispute and -- I'm sorry.  I'm

18     speaking too quickly and I will slow down.

19             We dispute the findings of fact.  We certainly agree with

20     Mr. Krajisnik's presentation.  We appreciate the Court's ruling yesterday

21     which we only got literally at the close of business that we are entitled

22     to interview Dr. Radovan Karadzic, and I can represent to this Court on

23     the basis of a brief contact that I did have with Dr. Karadzic that he

24     will in fact be providing very significant exculpatory evidence, that we

25     will satisfy the Court's obligation to present that evidence within the

Page 207

 1     appropriate period of time.

 2             I must also add something, and I'm sorry for this, but we did not

 3     get the Court's ruling on the Rule 115 judgement, 54-page ruling until

 4     the close of business yesterday on my Blackberry.  We have not seen it.

 5     It has not yet been given to us in person and so we argue here under a

 6     burden of not knowing the content of the Rule 115 judgement.  We

 7     understand the Court's restrictions on what we are to say publically and

 8     we will, of course, completely abide by that.  Having said that, I must

 9     add again that without faulting anybody else it's the fault of

10     communication and technology that we had a representation from the

11     Prosecution's office --

12             JUDGE POCAR:  Sorry to interrupt you.  You're saying that you did

13     not receive the decision, the Rule 115.

14             MR. A. DERSHOWITZ:  Right.

15             JUDGE POCAR:  Should have been given to you actually.

16             MR. A. DERSHOWITZ:  I'm sorry, Your Honour.  It was sent on my

17     Blackberry at about 7.00 p.m. last night.

18             JUDGE POCAR:  That's correct.  It was signed about that time.

19             MR. A. DERSHOWITZ:  And we had no access to it.  We tried --

20             JUDGE POCAR:  Do we have hard copies here?

21             MR. A. DERSHOWITZ:  -- as best we could.  Thank you so much, and

22     we will read it during the recess.

23             The other document we did not receive, and again I don't fault

24     anybody, is the Prosecution made a representation that they would within

25     48 hours of the argument present us with the list of material and

Page 208

 1     response to the Court's order of the nexus issue that was discussed

 2     previously.  I never received that and received on my Blackberry at about

 3     9.30 last night a revised list.  So we do not have the original list, but

 4     I will not allow that to interfere with the general argument that we're

 5     making here.  I just want to reiterate that without accepting any of the

 6     findings below, particularly the findings that are disputed by our

 7     client, for purposes of this appeal, just for purposes of this appeal,

 8     even if everything found by the Trial Chamber is credited, every single

 9     fact credited, our position is that those facts do not give rise to

10     appropriate joint criminal enterprise liability, and from this point on,

11     I will assume the accuracy of the Trial Chamber's findings though we

12     dispute them and will continue to dispute them for purposes of Rule 115.

13             Now, I think it's very important to note that the trial findings

14     below include a finding that Mr. Krajisnik was not a principal

15     perpetrator.  He was not a principal perpetrator.  That is, he did not

16     commit any of the actus reuses that are specified in the statute itself,

17     in Article 7(1).

18             It is also important to note that the Court made a finding, and

19     this appears on page 402, that in relation to effective control, that the

20     evidence does not demonstrate that Mr. Krajisnik himself had effective

21     control over these bodies, meaning Bosnian Serb political and

22     governmental organs, Bosnian Serb forces which participated in or

23     facilitated the commission of crimes identified in the indictment.

24             What the Court finds below, and it appears particularly in

25     paragraph 1120 under the heading of Mr. Krajisnik's contributions, were

Page 209

 1     that the accused's overall contribution to the JCE was to help establish

 2     and perpetrate the SDS party and state structures that were instrumental

 3     to the commission of the crimes and that he also deployed his political

 4     skills, both locally and internationally, to facilitate the

 5     implementation of the JCE's common objectives through the crimes

 6     envisioned by that objective.

 7             And it's very important, as my brother mentioned, that there is

 8     tremendous lack of clarity as to whether or not our client was convicted

 9     based on the first principle of JCE liability or the third principle.

10     The Court seems to suggest that it was only based on the first category,

11     yet the Prosecution in its reply to our brief says, citing several

12     paragraphs, that it was based on category 3 as well.  We've read those

13     paragraphs.  We do not see in those paragraphs any clear conclusion that

14     category 3 JCE liability was found.

15             The main issue that we think is lacking in this case is simply

16     the absence of an actus reus.  Before we get to mens rea, we respectfully

17     challenge the Prosecution finally to tell us what is the actus reus that

18     was required and was committed by the defendant in this case.

19             What we have is a very important set of distinctions here.  What

20     did Mr. Krajisnik personally do that constituted the actus reus as

21     distinguished from the mens rea of the crime.

22             We know, because the opinion say so and because the indictment

23     says so and because the Prosecution has said so, that he did not

24     personally commit war crimes.  That could be one possible actus reus, the

25     commission of war crimes.  We know that he is not charged with committing

Page 210

 1     ordinary crimes.  He didn't engage in looting or burglary or rape or

 2     murder.

 3             We know that he's not charged with committing neutral conduct.

 4     For example, waging a lawful war.

 5             What he is accused of is completely characterised accurately by

 6     political speech and political activity.  This is the first case to our

 7     knowledge in any International Tribunal where we have a defendant's actus

 8     reus completely based on constitutionally protected and human rights

 9     protected conduct.

10             As my brother put it, I think, very, very well, had a state tried

11     to prevent Mr. Krajisnik from making the speeches that formed the basis

12     for the criminal liability here, that state itself would have been

13     violating norms of international law.  What he did was make speeches.

14     What he did was, according to the indictment but we dispute it, helped to

15     create a political party.  And of course, this Court has recognised that

16     it cannot under the statute make it a crime to be a member of a political

17     party, make it a crime to be a member of a criminal organisation.  That

18     could be a basis of potential liability under a statute that set that

19     out.  This statute does not do that.  It does not do what the Nuremberg

20     trials did and that is create liability from membership in the Nazi

21     party, member in the Gestapo, membership in, et cetera.  So the

22     membership in the SDS could not -- or even organising it could not be a

23     basis for independent liability.

24             And when you get a situation where the actus reus of the crime

25     are speeches, political kills, the Court says very, very clearly one of

Page 211

 1     the bases, the actus reus is he also deployed his political skills,

 2     deployed political skills.  Clearly, clearly protected conduct.  And

 3     stating negotiating positions, even strong negotiations positions.  If

 4     one were to go back and look at the negotiating positions stated during

 5     the India, Pakistan, Bangladesh, various crises, Cyprus, various African

 6     conflicts, the Israeli-Palestinian conflict, one finds as part of

 7     negotiating positions, statements very much akin to the statements that

 8     are alleged here to be the actus reuses of the crime.

 9             I must reiterate again that the defendant is not charged with

10     having personally committed any of the actus reuses specified in

11     Article 7(1).  He is not accused of having planned, he is not accused of

12     having instigates, he is not accused of having ordered, he is not accused

13     of having committed except through the vehicle of joint criminal

14     enterprise liability.  The Court says defendant's contribution does not

15     have to be substantial and that's part of the jurisprudence of this

16     Court.  Again, we think a serious error that to allow joint criminal

17     enterprise liability without a substantial contribution.  The Court says

18     it need not be a necessary contribution.  All it need be is significant.

19             Now here's the crucial point that there is no finding on below.

20     Significant sounds like a quantitative judgement.  That is, there has to

21     be enough.  So one speech might not do, two speeches, three speeches.  It

22     has to be significant.  Substantial would also suggest some quantitative

23     contribution.  What the Court never discusses is the qualitative nature

24     of the contribution.  Can the contribution be entirely political

25     speeches?  Can the contribution be entirely political negotiations?  Can

Page 212

 1     the contribution consist entirely of protected conduct under

 2     international law?

 3             The Trial Chamber implicitly by its verdict concludes that the

 4     answer to that question is yes, but nowhere in the decision does the

 5     Trial Chamber discuss or consider the implications of that decision, the

 6     implications of allowing protected political speech and political

 7     activity to become the actus reus for a crime of human rights violations

 8     or a war crime.

 9             For example, if one thinks about the implications of this

10     decision, would it include lawyers?  Could lawyers who provided legal

11     services to Mr. Krajisnik during the course of the indictment or lawyers

12     that helped formulate some of the legal presentations but who did it as

13     part of a goal that was shared by the other members of the joint criminal

14     enterprise, could lawyers contribute substantially?  Could the activity

15     of lawyers --

16             JUDGE POCAR:  Sorry, can you slow down.

17             MR. A. DERSHOWITZ:  I'm sorry again.  I apologise to the Court.

18     I'm not used to speaking with a translator, and I will try my best.  And

19     please don't hesitate to slow me down at any point if I go too quickly.

20             There is a case in Canada recently where there was some

21     suggestion that lawyers providing support for a group which ultimately

22     was found to include terrorists could be subjected to some kind of

23     liability.

24             There's a case in New York where a lawyer has been imprisoned for

25     that kind of work.

Page 213

 1             What about financial contributors, people who provide financial

 2     support or religious support?  What about activists who provide political

 3     support and political organising skills?

 4             The idea that without clear criteria this kind of activity could

 5     become the basis for crimes against humanity has a tremendous deterrent

 6     effect, freezing, chilling effect on legitimate political speech and

 7     political activity.  People in situations of the kind that were faced by

 8     the Serbs after the declaration of independence would not be able to read

 9     this decision and decide precisely where the line was.  And when you

10     don't know where the line is, any cautious, prudent person moves further

11     and further away from the line.

12             Now, if the conduct is criminal conduct or even neutral conduct,

13     there is no harm done in having people act prudently.  If you don't know

14     what your tax obligations are, big deal, Your Honours, just pay more

15     taxes or don't go close to the line.  There is no protected aspect to

16     paying less taxes.  There is no protected aspect to committing ordinary

17     crimes like robbery or looting.  But when we're talking about political

18     activity, when we're talking about speeches, when we're talking about

19     negotiations, when we're talking about forming political parties, we --

20     the law should never be in a position where it chills or deters

21     legitimate political activities.  And what is gravely lacking in the

22     opinion of the Chamber below, the Trial Chamber, is any recognition, even

23     acknowledgement, that it was moving into territory that is unknown and

24     extremely dangerous.  That is, moving from situations where people are

25     beating each other up, where people are shooting each other at close

Page 214

 1     range, where people are engaged in acts of the kind that were committed

 2     during the Holocaust or of the kind committed by the Japanese or others

 3     that are physical in nature to speech and to political activity.  There's

 4     no recognition in the decision of the conflict.  There's no recognition

 5     that this is the first case, that I know of at least, where there is a

 6     conflict between protected human rights of the defendant, speech,

 7     political skills, and of all other defendants similarly situated and the

 8     protected human rights of victims.  In this case, there is a clear

 9     conflict.  It has to be resolved.

10             The Court below resolved it without recognising it, without

11     acknowledging it, without, with due respect, understanding that it was

12     creating a decision with broad implications for political conduct by

13     political leaders similarly situated to our client in this case.  And we

14     believe that as the result of that, it failed to understand the

15     implications of the decision for many current conflicts.  The

16     implications of the decision obviously for past conflicts, the

17     implications for the war against terrorism, to use the term that is

18     employed by many countries, are very, very grave indeed.

19             Terrorist groups operate within many countries including this one

20     and including my own country.  They are often supported by broad networks

21     of supporters.  You have concentric circles moving all around, the actual

22     terrorists themselves, those perhaps religious and political leaders who

23     support the terrorism, those who provide financial support.  In my

24     country alone, based on a criminal statute, a conspiracy and RICO

25     statute, we have had now more than a dozen criminal prosecutions which

Page 215

 1     have been extremely broad in their application.  Many of them have

 2     resulted in acquittals because the indictments have been too broad.

 3             Do you indict a professor from the University of Florida who has

 4     made speeches supporting terrorism and some of the speeches have been

 5     used in fundraising activities on behalf of terrorism?  Do you include

 6     within the range of joint criminal enterprise rabbis or ministers or

 7     preachers or imams who might share the goals and talk from a religious

 8     perspective about the goals but don't talk about the means toward that

 9     goal?  I don't mean only to include in this context current debates about

10     terrorism but in my country you have priests talking about blocking

11     abortion clinics and abortion centres and there have been grave issues

12     that revolve around how far to extend the liability.

13             During the Northern Ireland-British conflict there were grave

14     questions about how broad and how far the issues may range for purposes

15     of joint criminal responsibility.

16             And I know we are coming close to the time when we have to take

17     our recess, so I simply wanted to end this part of my presentation with

18     the Court's approval by urging the Court, please, as my brother has done,

19     to go back and read the citations of the Prosecution, because the

20     Prosecution, without again making any accusations, has wrenched out of

21     context words spoken by Mr. Krajisnik that are political in nature.  And

22     if the court were to review the actual speeches, the time that they were

23     made, some videotapes of speeches around that period of time.  Review the

24     fact that they were made while he was in the position as a speaker where

25     he had to accept and be polite to everybody who appeared as other

Page 216

 1     speakers, I think one will find a very, very different view of the

 2     context and the political nature of the speeches that were made than

 3     appears either in the Prosecution's brief or in the arguments that are

 4     made in support of the judgement by the Court below.

 5             This case presents this Court with a remarkable opportunity to do

 6     what Professor Cassese in his capacity as professor has suggested in

 7     recent articles, what other distinguished professors from Stanford and

 8     Vanderbilt and others have said as well, and that is without necessarily

 9     reconsidering the jurisprudence of JCE to impose very clear lines, the

10     kind that a legislature would have done had there been legislative

11     determination, traditional legislative determination, you would have

12     hearings, you would have reports, you would have consideration of where

13     the line should be drawn.  You'd have people testifying on one side or

14     the other.  What will this do to the political views, to the political

15     implications?  This Court has not had the benefit of that.

16             Even in the Tadic case the issue was not briefed.  The issue was

17     really briefed on other grounds, and most of the briefs that have been

18     submitted in subsequent cases the issues have been briefed, but in the

19     early cases it was almost taken for granted that JCE liability is

20     appropriate, and we think this provides the Court with a unique

21     opportunity to draw the line and to require as actus reus crimes

22     themselves, to require criminal conduct, independent criminal conduct

23     where the government can point to as the actus reuses, this is a crime,

24     this is unprotected conduct and now we move toward seeing whether or not

25     it imposes joint criminal enterprise liability.

Page 217

 1             I thank the Court very much.  The time has come to take our

 2     recess, and I will continue my argument after the recess, and we will

 3     accept -- hope to hear some questions after the recess if there are any

 4     from the Chamber.

 5             Thank you very much, Your Honour.  I apologise for speaking so

 6     quickly.

 7             JUDGE POCAR:  Thank you.  Indeed it's time to break.  There maybe

 8     some questions after the recess.  We break for 15 minutes, and the

 9     hearing will be resumed at 10.30.

10                           --- Recess taken at 10.16 a.m.

11                           --- On resuming at 10.36 a.m.

12             JUDGE POCAR:  So we resume our hearing.  I understand that

13     Judge Meron wants to put a question now to the Defence, please.  He has

14     the floor.

15             JUDGE MERON:  Thank you, President.  This is a question to the

16     Dershowitz brothers.  As you may know from my dissent in the Media case.

17     I am sensitive to the argument you made about protected political speech,

18     but I will expect the Prosecutor later to deal with that, and I will

19     direct some questions to the Prosecutor on that, not to you.

20             At the moment I would like to raise with you, Mr. Dershowitz, a

21     technical point regarding JCE.  Assuming for the purposes of the argument

22     this morning (a) that there was a JCE and (b), that Mr. Krajisnik was a

23     member of the JCE, as you know, the Appeals Chamber in the Brdjanin case,

24     the Brdjanin judgement, articulates the links that must be established

25     between crimes committed by non-JCE members and the actual JCE members.

Page 218

 1             To you what extent do you argue that such proper links have not

 2     been established, and if they have not been established, which portions

 3     of the trial judgement would be invalidated as a result?

 4             MR. A. DERSHOWITZ:  Thank you very much, Your Honour.  I would

 5     like to defer on that question to my brother who is better educated than

 6     me having attended NYU Law School.

 7             JUDGE MERON:  That's a good beginning.

 8             MR. N. DERSHOWITZ:  The core problem is the way this case

 9     proceeded it becomes impossible for the Prosecutor today, or improper for

10     the Prosecutor today to retroactively seek to go through the record to

11     try to justify the linkage.  What I think is essential under the decision

12     in Brdjanin is that you first start in any analysis with an indication of

13     who are the members of the JCE.  Then you have to identify, assuming

14     you're going through linkage to those who are not perpetrators, you then

15     have to identify the member of the JCE, and then what you have to do is

16     demonstrate the direct, direct, connection to the action that was

17     undertaken.  And that should be the charge so that you can defend against

18     it.

19             What they've done here is impossible to defend against, because

20     what happens is it's such a vague open-ended description of who are

21     members of the JCE.  Then they add members of the JCE on the basis of the

22     activities that took place, and then they try to make the link.  So it's

23     exactly the opposite of what I think was the concern in Brdjanin if you

24     start with actual perpetrators, because what you're doing is by

25     definition almost you are saying a -- what they are saying is an act

Page 219

 1     occurred which is a war crime.  Whoever suggested it must have been a

 2     member of the JCE, therefore, you then connect it back up to the original

 3     JCE.  And that is backwards, inappropriate, and, you know, also in our

 4     situation the Court -- again the Chamber's decision is somewhat

 5     inconsistent with a number of opinions by -- by this Tribunal and the

 6     positions taken by the Prosecutor is to some extent inconsistent with

 7     both of those, but the way it is described in the decision there is a

 8     need to have the JCE membership agreement or non-agreement but joining

 9     prior to, prior to, any act occurring so that the date here must be under

10     the judgement prior to April of 1992.  So it becomes very important for

11     the Prosecutors to be able to demonstrate a joining or the JCE

12     establishment prior to 1992.

13             Now, maybe you can join it later, but then you have to

14     demonstrate something to establish it, but they use the date of April

15     1992 as the date where there is an agreement to commit the war crimes.

16     And the statute -- the statutory division has to be connected according

17     to the judgement to -- there has to be a joint enterprise to commit the

18     statutory crime that has to have occurred in April of 1992.

19             So to answer your direct question, I think it's too late for them

20     to do that.  I think if you take the logic of where the progression has

21     gone instead of having a logical next-step progression, they have now

22     reached way beyond and are trying to work backwards to justify, which is

23     inherently an inappropriate method of proceeding with a criminal charge.

24             Anything further, or ...

25             JUDGE MERON:  I appreciate your answer, Mr. Dershowitz, but my --

Page 220

 1     the focus of my question was specifically whether in your view the

 2     Trial Court established that -- found that links have been established

 3     between crimes committed by non-JCE members and actual JCE members.

 4             MR. N. DERSHOWITZ:  And I'm suggesting there was none.  There are

 5     a couple of paragraphs, but those paragraphs are ad hoc additions that

 6     were made which is inappropriate and they still do not connect up, but

 7     that individual who is now supposed to be a member of the JCE add --

 8     added post hoc because of something that happened without any dates,

 9     times or other things and then they make him a member of the original JCE

10     as opposed to starting with who are the members of the JCE, identifying

11     what he did or she did to carry out the JCE, and then seeking to get the

12     link.  I think it's paragraph 1006.  I have the paragraphs that are

13     particularly defective in that regard.

14             JUDGE MERON:  And if links have not been established, what is the

15     impact on that, on the validity of the judgement?

16             MR. N. DERSHOWITZ:  I think the whole judgement must be set aside

17     without any question, because there is a concession that he was not a

18     perpetrator of any of the acts.  Therefore, if he is not a perpetrator of

19     the criminal acts and there is no link, the judgement must be set aside.

20             JUDGE MERON:  I will not pursue that, but if you look at

21     paragraphs 299, 300 of the trial judgement, you'll see there a reference

22     to some crimes which were committed by JCE members.

23             MR. N. DERSHOWITZ:  But again, Your Honour, I believe -- let

24     me -- I would have to check, Your Honour, as to whether those

25     provisions -- you've been receiving an indication as to deficiencies

Page 221

 1     within the judgement, and I would have to examine those which they

 2     concede now are not supported, and what I would also have to do is go

 3     backwards in order to see whether those statements are connected up to

 4     the actual war crimes because they're frequently not.

 5             MR. A. DERSHOWITZ:  Your Honour, may I add that we will

 6     supplement this, with the Court's permission, with a brief written

 7     response when we have had an opportunity to look at what the Court

 8     referred to.  May I simply add one sentence about this.

 9             This is a unique case.  This is not a kind of case where -- which

10     the Court has discussed in the past where you have a firm JCE.  Everybody

11     knows who the members are, JCE, and then a stranger, for example, walks

12     into a concentration camp and kills people or some person who is totally

13     outside does that.  Here what the Court has done is because the goal was

14     so broad and political, that is separation, ethnic separation goal which

15     is tragically pervasive all over the world and because the indictment

16     says by other means, meaning lawful means as well, virtually anybody of

17     Serbian background who lived in this area could be considered as a member

18     of the JCE, particularly if they then participated in any of the crimes.

19     So what the Court has done is it's mooted the question essentially.  The

20     Trial Chamber mooted the question of what happens when a non-JCE member

21     commits a crime.  They simply make him a member of the JCE retroactively,

22     and at the very least what would be required is a linkage between that

23     crime and the defendant.  The defendant would have to, before the crime

24     was committed, be aware of the fact that the crime was going to be

25     committed.

Page 222

 1             Now, of course in this case, we do have a conclusion of the Court

 2     that he was not in a position of authority.  That he could not have

 3     prevented, and indeed many -- there's a contradiction in the lower

 4     Court's judgement, because they hold him responsible for his inactions,

 5     for failing to investigate, failing to prosecute, when they also make a

 6     finding that he didn't have the authority to do so.  And I think the

 7     evidence will be very clear that Mr. Krajisnik could not investigate and

 8     could not prosecute on his own, and we have no evidence of what his

 9     opinions were as to whether there should be Prosecution or not.

10             I'd like to -- I welcome questions so I want to make sure I'm not

11     stopping anybody from asking questions.  And please feel free to

12     interrupt in the middle of a sentence.

13             I would like to devote the rest of my time to considering the

14     implications for appellate review of what this distinguished Appellate

15     Chamber how it should look at the Trial Court's judgement in light of the

16     fact that we're talking about political speech and political activity.

17             Now, the Trial Chamber below did say under its paragraph 1196 of

18     standards for making inferences that:  "A finding must be more than a

19     reasonable inference in circumstances, it must be the only reasonable

20     inference," which is a very daunting standard.  Unfortunately, the lower

21     Court failed to apply that standard, its own standard when it came to

22     evaluating the speeches.  They may have applied that standard, I leave

23     that to others because it's not part of my role, when we're talking about

24     whether witnesses, as they said, lacked specificity as to the identity of

25     the alleged perpetrators on purely factual issues of who was where and

Page 223

 1     when, but when it came to interpreting speeches, I am confident that when

 2     this Chamber reviews the evaluation of the Trial Chamber they will see

 3     that it drew all inferences adverse to the defendants's political nature

 4     of his speeches.  Every time there was two possible interpretations of a

 5     speech, one as posturing for political bargaining position in a

 6     negotiation or committing a crime, they would always take the inference

 7     most adverse to the defendant.

 8             For example, when they say at some point that they characterise a

 9     statement he made as a call to arms, accused call to arms, 925 paragraph,

10     at the Assembly session of March 18, 1992.  If you read that in context

11     and look at the surrounding evidence, it is so clearly not a call to

12     arms.  It is a call to lay down arms.  It is a call for political

13     resolution of the conflict, but it's a call stated in strong terms.

14             The same thing is true of so many of the other speeches, some of

15     which probably many of us including myself would find disturbing as a

16     matter of substance.  For example, the statement not made by him but made

17     by somebody else that Muslims with their birth rate will gradually stifle

18     our territories.  The accused replying to that passed over the remark.

19     That is, he failed to correct a remark made by somebody else even though

20     as speaker, often, he had to simply be polite.

21             But let's assume even the worst case scenario.  Let's assume that

22     a defendant makes a speech that says that we have to worry about the

23     birth rate of Muslims in our community or the birth rate of Hasidic Jews,

24     or the birth rate of Catholics or the birth rate of anyone else.  One all

25     has to do is read the newspapers.  That's being discussed in every

Page 224

 1     country of the world today and I think if one takes everything that the

 2     defendant said and reads it in the context of what he was thinking and

 3     what his role was, one has to interpret it -- the inferences that have to

 4     be drawn, the -- if you have to conclude that it's the only inference, if

 5     you apply the Trial Chamber's own standard that it's the only inference,

 6     you certainly cannot conclude that the only inference that can be drawn

 7     is a criminal inference.

 8             I believe, actually, and I represent to this Court having read

 9     many of the speeches in context, that the most reasonable inference is an

10     inference of political speech and not an inference of inciting violence,

11     but I don't have to satisfy that standard.  The Prosecution must satisfy

12     the standard.  There is no reasonable inference other than a criminal

13     inference that can be drawn from those speeches.  That simply cannot be

14     done when one reads these speeches in context.  If one goes through every

15     one of the paragraphs, and obviously I'm not going to burden the Court by

16     doing that, every one of the paragraphs which describes a speech there

17     are always more than one way of reading the speech.

18             Now, we know that politicians can be very good at that.

19     Religious leaders can be very good at that too.  They can talk

20     poetically.  They can talk metaphorically.  They can talk in ways that

21     posture, in ways that mean one thing to one person and one thing to

22     another.  But you simply cannot prosecute a person for war crimes based

23     on speeches and political statements that can be read in multiple ways.

24     And we think that although the general appellate criteria for reviewing

25     fact findings below are to draw reasonable inferences in favour of the

Page 225

 1     winning party, the Prosecution, that's the usual standard on appeal, that

 2     is not the standard when freedom of speech and political activity is

 3     involved.  That is not the standard the United States Supreme Court

 4     applies.  It is not the standard the House of Lords applies.  I don't

 5     know that there is any jurisprudence on this issue internationally.  We

 6     haven't really been able to find any specifically on what the appellate

 7     rules should be in reviewing factual determinations.  But we submit that

 8     the best practice if there is no binding precedent the other way is to

 9     draw all inferences very favourably to the defendant when it comes to

10     political speech and political activity in order not to serve to chill

11     political speech and political activity in the future, recognising the

12     delicate balance and the delicate conflict that exists when political

13     speech is turned into a human rights violation.

14             Now, I think the same thing is true when it comes to the mens

15     rea.  I focused right now up to this point on the actus reus which we

16     think is the crucial absence in this case, the actus reus.  No criminal

17     actus reus has been alleged or proved in this case.  But on the mens rea,

18     the suggestion has been made that knowledge is enough.

19             Now, knowledge may be enough when one is dealing with military

20     actions done by the defendants themselves.  Knowledge, for example, that

21     there are civilians in a town when he has directed a call to the shelling

22     of that town, knowledge would be enough.  But knowledge, Your Honours, is

23     simply not enough for mens rea when it comes to political speech.  Think

24     of the implications if that were the case.  It would mean that every

25     political figure would have to remain silent once they knew that they

Page 226

 1     were making speeches and their speeches could be misinterpreted to add to

 2     the violence or contribute to the violence or could be re-interpreted

 3     after the fact.  That cannot be enough.  A politician must be encouraged

 4     to continue to speak even with the knowledge that there are crimes being

 5     committed.

 6             So although Mr. Krajisnik, I think, has very effectively and

 7     there will be more documentation and certainly more documentation from

 8     Dr. Karadzic about his lack of knowledge and the particular role he

 9     played and the lack of authority he had, but assuming, even for worst

10     case scenario for purposes of Appellate review, assuming that he did know

11     about the shelling, that he did know about this activity, he did know

12     about the other activity which he did not, does that mean that he had to

13     refrain from continuing to speak.  His goal was, yes, to try to achieve

14     on the ground positions, legally, that would help him in his negotiating

15     posture.  Every negotiator does that.  Whenever there are cease-fires

16     both sides want to improve their position on the ground, to increase

17     their leverage when it comes to negotiation, and I think that everything

18     that Mr. Krajisnik said even during the worst periods have to be read in

19     the context of his role as a negotiator, his role as somebody who was

20     pushing toward a peaceful resolution.

21             Yes, he predicted war would come.  Yes, he predicted that war

22     would have horrible consequences.  Yes, all of those things were said in

23     the context of trying to avoid war.  Yes, he did and others did remind

24     the Serbs of what had happened during the Second World War when hundreds

25     of thousands of Serbs were killed when they were exposed vulnerably to

Page 227

 1     the excesses of Nazis who were working in collaboration with some of

 2     their enemies in the Croatian and Muslim community.  Yes, but he told the

 3     truth.  Now, it may be an ugly truth and it may be a truth that some

 4     people would then take as an invitation for action, but again unless the

 5     criteria, the very, very technical criteria for incitement had been

 6     satisfied and had they been satisfied, he wouldn't have had to be charged

 7     with joint criminal enterprise.  He could have been charged with

 8     incitement.

 9             In the Rwanda situation when you have somebody getting on the

10     radio and describing the locations of where the victims lived and why

11     they should be killed and calling directly for incitement, that's not

12     protected political speech.  Or what Streicher did during the

13     Second World War was held by the International Tribunal at Nuremberg not

14     to be protected speech.  But I submit that even the Prosecution would

15     acknowledge that every one of the speeches that were made, every word

16     uttered would be protected speech, that there was not a single speech

17     made that in and of itself could be charged with a crime, could be

18     charged as an incitement.

19             So when you have a situation where we're dealing with a political

20     speech, where we're dealing with, as the Court itself said, helping to

21     set up, establish the SDS and other structures of government and using

22     his political skills, even if the Court believes for the wrong purposes

23     and the wrong ends, so long as the means, that is the actus reus, the

24     means were not only not criminal, and here again I make this distinction

25     very sharply there are three categories, or four, war crimes, ordinary

Page 228

 1     crimes, neutral conduct, and protected conduct.  And in this case we're

 2     talking about protected conduct, protected political speech, speech that

 3     could not be banned by a nation consistently with its obligation to

 4     protect free speech, that the criteria must be different.  The criteria

 5     of mens rea must be different, the criteria for actus reus must be

 6     different.  The criteria for complicity and joining the joint criminal

 7     enterprise must be different.

 8             After all, if one reads this indictment and the judgement, it is

 9     perfectly consistent with the indictment and the judgement that, yes,

10     Mr. Krajisnik believed in separation.  Yes, hypothetically, though we

11     don't concede this, he even believed that a transfer of population would

12     be desirable, as a transfer of population was done after the Second World

13     War, in the Sudetenland, in India and Pakistan and Kashmir, Bangladesh,

14     many, many, many other parts of the world, transfers of population -

15     Israel, Palestine - transfers of population, that the transfer of

16     population was a desirable thing.  Even if one concedes that, that in and

17     of itself does not create a goal, a JCE goal that is criminal and the

18     means, the means that were identified specifically with this defendant or

19     political speech means.

20             And so when the goal was political and the defendant's means were

21     political, we get a situation, and I will end with this, of the kind that

22     occurred in the United States in perhaps its most famous conspiracy case

23     in recent years, the case against Dr. Spock, a world famous paediatrician

24     who strongly opposed the war in Vietnam.  I was honoured to be a lawyer

25     in that case on behalf of the defendants.  What you had was six groups of

Page 229

 1     people who opposed the war against Vietnam and they all opposed it in

 2     different ways.  They all had a common goal; their goal was to end the

 3     war.  Dr. Spock, being a Ghandian and a supporter of Martin Luther King,

 4     believed in passive resistance, including perhaps some criminal conduct,

 5     blocking of draft centres but nothing active.  He would lie down and

 6     allow himself to be arrested.

 7             Other members of the conspiracy believed in different ways of

 8     ending the war in Vietnam.  Some of them were more violent, some of them

 9     were more illegal, and the court threw out the entire conviction in the

10     case on the ground that what the Trial Chamber in that case, the

11     Trial Court had failed to do was to require not only that there be a

12     joint goal, ending the war, but that each defendant adhered personally to

13     means that were (a), constitutionally unprotected, and (b) that were

14     illegal in and of themselves.  They used the term bivariated or

15     bifurcated conspiracy.  When you have conspiracy that contains both

16     lawful ways of achieving it and unlawful ways of achieving it the

17     obligation of the indictment, the prosecution, and the Trial Chamber is

18     to require the finders of fact in that case the jury, in this case the

19     Judges, the finders of fact to find specifically that the particular

20     defendant adhered to the unlawful means and personally participated and

21     took actions that were unlawful.

22             Now, that's not the criteria for conspiracy in general.  That's

23     not the criteria in the United States.  It's only the criteria for

24     conspiracy when the conspiracy involves politically protected speech,

25     when the conspiracy involves activities that in the United States come

Page 230

 1     within the penumbra of the First Amendment, and in all such cases, a

 2     different rule of law and a different rule of appellate interpretation

 3     must apply.  And we ask this Court respectfully (a) we have not

 4     abandoning our position about the general inapplication of JCE and the

 5     fact it was not approved by the statute, but putting that aside for a

 6     minute, we ask this Court to take the opportunity to use this case to

 7     create rigid, hard, predictable, foreseeable lines that a person reading

 8     the decision of this Chamber would be able to know what speeches he could

 9     make, what speeches he couldn't make, when he could make a speech, when

10     he couldn't make a speech, what context a speech becomes a crime, what --

11     in what context other political and leadership decisions become a crime.

12             In the absence of that kind of appellate guidance, we fear

13     terribly that speech and political activity will be chilled.  Even if one

14     disapproves of the speeches that were made in this case, and if one reads

15     them in context I think the disapproval will be less sharp, but even if

16     one strongly approves, the essence of freedom is freedom for those we

17     disagree with, freedom of those to make speeches that we would wish

18     perhaps they didn't make, freedom of those to form political parties that

19     we would not vote for or approve of, freedom of those to advocate

20     political solutions that we would not accept.

21             Now, there is one paragraph in the opinion which so clearly

22     demonstrates the political nature of the ruling below.  They talked about

23     how Mr. Krajisnik had an obligation to all the citizens of the country in

24     which he lived and that he failed to satisfy his obligation to all the

25     citizens of the country.  That sounds like a criteria for impeachment

Page 231

 1     from office perhaps, but it doesn't sound like a basis for the most

 2     serious crimes, the most serious crimes in the world, violations of human

 3     rights, murder, to be applied to a politician, a political figure who

 4     exercised his freedom of speech and his political freedom perhaps in ways

 5     that we would disagree with.

 6             Thank you very much, Your Honours.  I welcome any questions now

 7     or during the rebuttal period.

 8             JUDGE POCAR:  Thank you.  Judge Shahabuddeen, you want to --

 9     please.

10             JUDGE SHAHABUDDEEN:  Mr. Dershowitz, I find your submissions and

11     those of your brother very helpful indeed.

12             MR. A. DERSHOWITZ:  Thank you, Your Honour.

13             JUDGE SHAHABUDDEEN:  -- and I congratulate you both.

14             Now, I'm a little unclear about the exact parameters within which

15     you present the right of a politician to make speeches.  I think

16     somewhere you recognised that some politicians can say one thing --

17             MR. A. DERSHOWITZ:  Yes.

18             JUDGE SHAHABUDDEEN:  -- knowing full well that they would be

19     understood by their hearers to mean other thing.  Now, I understand very

20     well what you say about the protection of the right to make speeches, but

21     is there a point at which a Court is entitled to say, Well, look here.

22     We have some speeches of the appellant, and we will check their weight.

23     We'll see how they were in fact understood by hearers.  Is there a

24     problem of that kind?

25             MR. A. DERSHOWITZ:  Your Honour, thank you for an extremely

Page 232

 1     insightful question and a very, very difficult one.  I think the answer

 2     to that is yes, there is such a point but two criteria have to be met

 3     first.  Number one, the defendant has to be indicted for having made the

 4     speeches.  That is, it has to be an indictment based on the speeches

 5     themselves, an incitement indictment of the kind that was done in Rwanda

 6     or the kind against Streicher in the Nuremberg trials.

 7             Second, the Prosecution would have the burden, not the Defence,

 8     of setting out the criteria and the lines and indeed the statute would

 9     have the obligation to set out the criteria, what incitement constitutes.

10             Now, there is a doctrine both under American law and

11     international law that is very clear, the doctrine of code words.  Now,

12     we all know what that means and that's exactly what Your Honour put his

13     finger on.  If both the defendant and the hearers of the speech know that

14     code words are being used, that when a certain phrase is uttered, a

15     Biblical phrase, a Koranic phrase, a phrase from literature, a phrase

16     from political speech which can only be understood as an incitement or a

17     triggering act, plainly a defendant could be indicted for such activity,

18     but in this case the Chamber made no such finding.

19             The Chamber did not in any way suggest that Mr. Krajisnik

20     intended or knew that his speech would be understood or that certain

21     words of the speech would be understood.  Instead, what the lower Court

22     did is it used metaphors like "call to arms," or he "set the train

23     going."  That's guilt by metaphor, and when you deal with particularly

24     political speeches precisely because of the nuance issue Your Honour so

25     appropriately raises, it's one of the hardest questions the law ever

Page 233

 1     faces, where to draw the line been protected political speech and the

 2     abuse of verbal concepts to, in effect, send out triggering messages.

 3             Now, we know that free speech does not protect a Mafia capo from

 4     saying to his associate, "Let's kill this man."  We also know it wouldn't

 5     have protected King Henri VII, if I have my history correct, when he said

 6     "Will no one rid me of this meddling priest?"  We also know there are

 7     other ways of communicating directly a message that would not be

 8     protected speech, though I add that it would have to be indicted

 9     separately.  The idea, though, of indicting for a JCE without specifying

10     the mens rea and the -- without specifying the actus reus and then using

11     the speeches and using the worst interpretation of the speeches to put

12     them all together to form a kind of totality of circumstances argument,

13     gravely, gravely endangers free speech.

14             JUDGE SHAHABUDDEEN:  As I have you on the floor.  May I burden

15     you with another little question.  You have usefully presented us with a

16     brief on JCE, and I'm referring to paragraph 30 of that brief in which

17     you discuss a certain case or cases, and you have named a Judge of this

18     Tribunal whom out of delicacy I wouldn't name now.

19             The last sentence of that paragraph reads:  "Perhaps politics

20     dictated one result in one case and another elsewhere."  Now, I invite

21     you to focus on the word "perhaps."  Is the appellant making an assertion

22     in that sentence or is he speculating on what the answer might be?

23             MR. A. DERSHOWITZ:  Thank you, Your Honour, for an opportunity to

24     clarify that.  Having re-read it now in the light of question, I withdraw

25     that sentence.  I think it was an inappropriate sentence in the brief.

Page 234

 1     What I really meant to say was something rather different and I put it

 2     very inartfully.  What I meant to say was the potential for a political

 3     resolution of a case, subconsciously or consciously, is far greater when

 4     you have open-ended criteria like the kind of JCE involved here and in

 5     some of those other cases, and particularly when you have such horrendous

 6     acts having been committed on the ground, what the law always needs is to

 7     protect itself against at least the theoretical possibility that

 8     ideology, politics, good faith, humanitarian instincts rather than strict

 9     application of the law may somehow find itself into the mind of the

10     Judge.

11             To the extent there was any suggestion in the brief that any

12     particular Judge of this Court engaged in that, I personally apologise.

13     I withdraw the sentence and I welcome the opportunity to have made that

14     clarification.

15             JUDGE SHAHABUDDEEN:  Thank you very much, Mr. Dershowitz.

16             JUDGE POCAR:  Any other question from my colleagues?  Well, if

17     it's not the case --

18             MR. A. DERSHOWITZ:  Thank you very much.

19             JUDGE POCAR:  -- we'll move on to the response of the

20     Prosecution, and I give the floor to the Prosecution.

21             MS. GOY:  Good morning, Your Honours.  We will focus our

22     submissions this morning on the question raised by Your Honours in the

23     Scheduling Order, but before doing that, I'd just like to briefly address

24     a number of points just raised.

25             The first is the distinction between the actus reus of the crime

Page 235

 1     charged and the contribution that the member of the JCE needs to make.

 2     The contribution as such doesn't necessarily need to be criminal as long

 3     as it contributes to the commission of the crime, and the criminal

 4     liability does not result from mere looking at the contribution as such

 5     but coupled with having a common purpose together with the other JCE

 6     members and sharing the intent, when these two requirements are met, the

 7     contribution as such does not need to be criminal.

 8             And also Mr. Krajisnik's contributions in this case were not

 9     limited to mere political speech, and we have addressed his -- the amount

10     of his contributions extensively in our response to the amicus brief,

11     paragraphs 97 through 106, and the response to Krajisnik's brief,

12     paragraph 90 through 168.

13             And with regard to the level of contribution, the fact that the

14     Brdjanin Appeals Chamber said that the contribution needs to be

15     significant, there can be no doubt that the contributions as found by the

16     Trial Chamber are significant.  The Trial Chamber referred, for example,

17     in paragraph 1158 to the role that Krajisnik played as crucial and in

18     1119, it referred to his central position in the joint criminal

19     enterprise.

20             The other issue addressed the question of under which form

21     Krajisnik was convicted.  We've set out in our brief that liability was

22     mainly based on JCE I except for the first incidents of the expanded

23     crimes, those outside deportation and of forced transfer, but we will

24     address this issue further this afternoon because this was also raised by

25     the amicus.

Page 236

 1             And second -- third, I apologise, the requirements set by the

 2     Brdjanin appeals judgement in paragraph 430 limit the responsibility of

 3     joint criminal enterprise, and as the Appeals Chamber has said, provide a

 4     safeguard against reaching into an overarching concept lapsing into guilt

 5     by association.

 6             With Your Honours' permission, I would like now to address the

 7     question that Your Honours have posed in the Scheduling Order.

 8             In a nutshell, our position is that the Trial Chamber was

 9     required and did establish that the crimes formed part of the common

10     purpose, and this means for those crimes carried out physically by the

11     members of the JCE the Trial Chamber had to and did establish that they

12     were carried out in pursuance of the common purpose, and for those which

13     were not carried out by members of the JCE, the Trial Chamber was

14     required to establish that the JCE members used the principal

15     perpetrators to carry out the crimes.  And the Trial Chamber here was

16     entitled to infer this link between the JCE member and the principal

17     perpetrator, either because the principal perpetrators were members of an

18     organisation or structure headed by a member of the JCE or because the

19     JCE member closely cooperated with the principal perpetrators,

20     particularly in light of the magnitude of crimes and pattern of events.

21             On the basis of this analysis, the Trial Chamber was not required

22     to analyse or, rather, set out in detail the specific link between each

23     individual incident and the accused.

24             During my submissions today, I will address how the Trial Chamber

25     in this case directly applied the law of joint criminal enterprise in a

Page 237

 1     situation where most of the crimes were carried out by principal

 2     perpetrators who were not members of the joint criminal enterprise, and I

 3     will address some legal questions regarding this form of liability.  And

 4     Mr. Kremer will then later address the findings and evidence with regard

 5     to the link in more detail and discuss examples where the link may not be

 6     immediately obvious.

 7             Before the discussion on the law of JCE and the way the principal

 8     perpetrators were used, I would like to give an example of the mentioned

 9     close cooperation between the individuals involved in the implementation

10     of the common purpose to remove non-Serbs through the commission of

11     crimes.  I will address the events in Zvornik.  The references can be

12     found in trial judgement paragraph 360 through 368.

13             The organisations or structures in Zvornik were the Crisis Staff,

14     the JNA, the police, the TO, paramilitary groups, and they were all

15     headed by JCE members on different levels and the findings show that they

16     worked closely with each other and with local Serbs.

17             On 5 April, the Crisis Staff ordered the mobilisation of the Serb

18     TO and around the same time, paramilitary groups including the

19     White Eagles, the Yellow Wasps and the Red Berets began to arrive.  They

20     had been invited by the president of the Crisis Staff.  Arkan's men who

21     were in Bijeljina and who had generally been invited by the JCE member

22     Plavsic, trial judgement 938, were also present and worked with the Serb

23     police setting up barricades.

24             Shortly thereafter, these groups cooperated to commit the first

25     grave crimes in the municipality.

Page 238

 1             On 8 April, the TO, the police, the JNA, and Arkan's men in a

 2     joint operation attacked Zvornik municipality murdering many civilians.

 3     Looting by Arkan's men followed two days later.  This led to the first

 4     displacement of Muslims to the nearby village.  And around the same time

 5     Arkan's men and the White Eagles worked together detaining Muslims in a

 6     factory where Muslims were extensively mistreated.

 7             The president of the Crisis Staff came to the facility and

 8     interrogated and beat a detainee.  Arkan's men killed approximately 18

 9     prisoners.

10             THE INTERPRETER:  Could counsel please slow down.

11             MS. GOY:  I'm sorry.

12             In late April or early May, the groups working side by side in

13     another village, another crime site, the village of Divic, Arkan's men,

14     reserve police, and the White Eagles, those who had been invited by the

15     Crisis Staff, attacked the village and 1.000 Muslims fled to a nearby

16     village.

17             Around 10 May, the police moved Muslim detainees who had been

18     guarded by local Serbs to another detention facility.  Sometime later,

19     the prisoners were moved again and brought to a detention facility

20     guarded by the reserve police.  Armed groups including paramilitaries

21     were frequently allowed to access and mistreated detainees.  There was a

22     densely-woven network of close cooperation between the groups in Zvornik.

23     It shows that they functioned within the greater scheme of the common

24     purpose that was shared by the JCE members heading and controlling the

25     respective groups.

Page 239

 1             Turning now to the question of the application of the law on JCE

 2     where the majority of crimes were not physically committed by JCE

 3     members.  Before doing that, I would like to quickly remind Your Honours

 4     who the JCE members were and what the common purpose was they wanted to

 5     achieve.

 6             The Trial Chamber, in paragraphs 1086 through 1088, found that

 7     the JCE consisted of persons situated throughout the territory and

 8     distinguished between a Pale-based leadership and the rank and file.  The

 9     Pale-based leadership included, in addition to Momcilo Krajisnik,

10     Radovan Karadzic, the president of the presidency and head of the SDS

11     party; Biljana Plavsic, a member of the Presidency; Nikola Koljevic, a

12     member of the Presidency; Momcilo Mandic, the Minister of Justice;

13     Velibor Ostojic, the Minister of Information; Mico Stanisic, the Minister

14     of Interior and thus, head of the MUP; and Ratko Mladic, VRS commander as

15     of 12 May.  And the rank and file level of the JCE consisted of local

16     politicians such as presidents of Crisis Staffs and local SDS officials,

17     local military commanders such as JNA and VRS commanders, police

18     commanders, and paramilitary leaders and the Trial Chamber specifically

19     named certain members of the rank and file component.

20             The common purpose of the JCE was the removal of Bosnian Muslims

21     and Bosnian Croats from large areas of Bosnia-Herzegovina through the

22     commission of persecution, murder, extermination, deportation, and

23     forcible transfer, and the Trial Chamber found that initially the common

24     purpose of deportation and forced transfer started to include other

25     crimes following the acceptance by JCE members and the continued

Page 240

 1     contribution.  While the focus was on forcibly removing Muslims and

 2     Croats, killings and ill-treatments were used as the means to achieve it

 3     and they were carried out often with the aim to instill fear and force

 4     the population to leave.  Destruction and appropriation of property were

 5     seen as the measure to prevent expelled people from returning.  Trial

 6     judgement 1093.

 7             On 18 March, Krajisnik called for the implementation of what we

 8     have agreed upon, the ethnic division on the ground and his call to arms

 9     benefitted from the preparation and planning of the ethnic cleansing

10     started by the leadership in '91 where Karadzic spoke before the

11     Bosnia-Herzegovina Assembly referring to possible extinction of the

12     Muslim people.  Trial judgement 1099.

13             And during late '91 and early '92, the leadership pursued a

14     parallel track to create a Bosnian Serb state.  A peaceful political one

15     based on negotiation and one based on the use of force.  Trial judgement

16     1005.  By keeping its options open, they were able to continue and

17     prepare for the ethnic division on the ground by force.  The leadership

18     including the accused took active steps towards the realisation of the

19     common objective.  They consolidated Bosnian Serb central authority.

20     Trial judgement 903 through 909.  They urged to set up Crisis Staffs.

21     Trial judgement 93 --

22             THE INTERPRETER:  Would you mind slowing down.  Thank you.

23             MS. GOY:  They established a Bosnian Serb police force, the MUP.

24     Trial judgement 930.  And already in spring 1991, the SDS in coordination

25     with the JNA had started arming and mobilising the population.

Page 241

 1             The implementation of the common plan started after Krajisnik's

 2     call to arms on 18 March.  The Trial Chamber found a general pattern of

 3     events in the municipalities.  Trial judgement 709.  And the differences

 4     depended on the ethnic composition in the municipality.  Where Serbs were

 5     in the minority, Serb forces took over the municipality expelling the

 6     non-Serbs.  Where they were in the majority and had control over local

 7     institutions, Serb authorities and armed Serbs exercised threats,

 8     arrests, killings, destruction of religious institutions in order to

 9     compel them to leave.

10             And as described in detail in part 4 of the judgement, the crimes

11     were committed by the military, the police, members of the TO,

12     paramilitaries, members of political and governmental bodies including

13     Crisis Staffs and local Serbs.

14             And the Trial Chamber correctly found Krajisnik liable for all

15     these crimes based on joint criminal enterprise.  How the members of the

16     JCE implemented the common purpose which was carried out mostly by

17     principal perpetrators which were not JCE members ties in more directly

18     with Your Honours' question on the link between Krajisnik and principal

19     perpetrators.

20             Your Honours asked the question whether the Trial Chamber was

21     required to establish a specific link between each of the crimes and

22     Krajisnik and, if so, to identify this link, namely, to identify relevant

23     findings in the judgement and/or the supporting evidence in the record

24     showing that each of the crimes for which Krajisnik was found liable was

25     committed by a JCE member or could be imputed to a JCE member.

Page 242

 1             As already summarised in the beginning of my submissions, the

 2     Chamber correctly determined that crimes formed part of the common

 3     purpose either because they were carried out by JCE members or because

 4     JCE members were used by -- used the principal perpetrators, them being

 5     part of organisations or structures headed by JCE members or closely

 6     cooperating with them, particular in light of the magnitude of crime and

 7     pattern of conduct.  By doing this, the Trial Chamber correctly applied

 8     the law as set out by the Appeals Chamber in Brdjanin.

 9             The Appeals Chamber in Brdjanin has determined that liability

10     under JCE does not require that the principal perpetrators are members of

11     the JCE.  What matters, rather, is that the crime forms part of the

12     common purpose.  Appeals judgement 410.  And in case the principal

13     perpetrators are not members of this JCE, this requirement that the crime

14     forms part of the common purpose can be inferred from a variety of

15     circumstances including close cooperation with a JCE member.  And the

16     requisite link between the principal perpetrator and the accused is thus

17     that a crime can be imputed to one of his fellow JCE members and that

18     this member when using the principal perpetrator acted in accordance with

19     the common plan.  Brdjanin 410.  That using can take different forms is

20     acknowledged by the Brdjanin appeals judgement which states that the

21     existence of the link has to be determined on a case-by-case basis,

22     paragraph 413.  That is a factual determination.  And it is clear that

23     such a case of using exists where a JCE member can make use of existing

24     organisations or structures such as the military and the police to

25     instruct their subordinates to implement the common purpose.

Page 243

 1             In Stakic, the Appeals Chamber confirmed use of organisations or

 2     structures as the basis for convicting Stakic under JCE liability for

 3     crimes committed by the principal perpetrators who were not JCE members.

 4     The JCE members were heads of the police, the military, and the

 5     Crisis Staff who used their organisations to carry out the crimes.  I

 6     refer Your Honours to the Stakic appeal judgement, paragraphs 68 through

 7     70 and the analysis in the Brdjanin appeals judgement, paragraph 409.

 8             But as the Brdjanin appeals judgement stated, using can also be

 9     inferred from close cooperation between the JCE member and the principal

10     perpetrator.  When, for example, members of the police work closely with

11     local Serbs to arrest or detain people, then it can be inferred that the

12     local Serbs were also used by the head of the police.

13             The Trial Chamber in Krajisnik correctly set out and applied the

14     law.  It recognised in paragraph 883 that it is not required that the

15     principal perpetrator is a member of the JCE, rather, that it is

16     sufficient that he is procured by the JCE member.  Procuring means to

17     obtain, to bring about, and describes the same concept as using and has

18     been used in this sense by the Trial Chamber in Haradinaj to describe the

19     requirements in Brdjanin.  That's the Haradinaj trial judgement,

20     paragraph 138.

21             The Trial Chamber in the Krajisnik case was also conscious that

22     to find JCE liability the members must share a common purpose, not merely

23     have the same purpose, trial judgement 884.  And the Trial Chamber

24     understood that it had to determine whether the crime was part of the

25     common purpose, and in trial judgement 1082, accepted indicia from which

Page 244

 1     this can be incurred.  This included whether the principal perpetrators

 2     were tools of the JCE, whether they cooperated with members of the JCE.

 3             The Trial Chamber explained the connections and relationships

 4     among the JCE members.  They rely on each other's contributions and on

 5     the contributions of non-members who have been procured to achieve the

 6     common objective.  This is consistent with the Brdjanin appeals

 7     judgement.

 8             Applying these criteria correctly to the facts of this case, the

 9     Chamber was entitled to infer that the crimes could be imputed to

10     Krajisnik.  I will address first the crimes of the JCE members and then

11     the crimes of those who were not members of the JCE.

12             Crimes personally committed by JCE members could be attributed to

13     Krajisnik because of the purpose they had in common and the intent, the

14     shared intent, for the crimes.  Mr. Kremer will deal with their crimes in

15     more detail.

16             The common purpose and shared intent is demonstrated through the

17     network of connections and cooperation between them.  This shows that in

18     addition to the Pale leadership also the local component, the rank and

19     file component of the JCE had a purpose in common with Krajisnik, and the

20     Trial Chamber identified for those rank and file members of the JCE the

21     particular findings in -- and evidence in the footnote to trial judgement

22     1088.

23             Turning to the crimes committed by principal perpetrators who

24     were not JCE members.  On the basis of the evidence, the Trial Chamber

25     reached the own reasonable conclusion when it found Krajisnik liable also

Page 245

 1     for those crimes carried out physically by people who were not members of

 2     the JCE.  The Trial Chamber was allowed to infer that they were used to

 3     implement the common purpose as there were members of organisations or

 4     structures which were headed by members of the JCE, or at least closely

 5     cooperated with them.  The Trial Chamber had established that the members

 6     of the JCE were either heads of structures or organisations to which the

 7     vast majority of principal perpetrators belonged such as the military,

 8     the JNA, the VRS, the MUP, the TO, paramilitary units, or political

 9     structures including the Crisis Staffs.  So it could infer that the

10     principal perpetrators were used when carried out crimes, particularly

11     given the magnitude of crimes and the pattern of conduct, the

12     similarities in the municipalities.

13             For those crimes where the principal perpetrators were not part

14     of these organisations such as armed local Serbs, the Trial Chamber was

15     justified by the massive record to conclude and articulated sufficiently

16     in its reasons in part 4 how they closely cooperated with members of the

17     JCE.  That these armed locals were used by members of the JCE is the only

18     reasonable inference from the evidence of such close cooperation.

19             The clear findings in part 4, and I have cited some in the

20     beginning, show that the crimes committed by the principal perpetrators

21     were directed against non-Serbs and thus furthered the common purpose.

22             The Trial Chamber has not set out the specific link which regard

23     to each incident in each of the individual municipalities but it was not

24     required to do so.  On the basis of the described cooperation between

25     those groups and with others the Trial Chamber was entitled to summarise

Page 246

 1     the findings on perpetrators as Bosnian Serb authorities or Bosnian Serb

 2     forces, a term used to describe armed soldiers, paramilitary units,

 3     police, and other armed persons in trial judgement 292.

 4             The Trial Chamber described in detail in parts 2, 3, and 6 of the

 5     judgement how the JCE members took over and established structures and

 6     organisations and cooperated with them.  The findings in part 4 show the

 7     close cooperation among organisations and with others outside these

 8     organisations.  And in light of the massive scale of the crimes committed

 9     by those in the structures which followed similar pattern, the

10     Trial Chamber was not required to undertake an additional specific

11     analysis with regard to the links between the principal perpetrators and

12     the JCE members.

13             Crimes were committed on a massive scale immediately as the

14     takeover started.  Ethnic cleansing occurred in a relatively short time

15     period in all 35 municipalities --

16             THE INTERPRETER:  Would counsel please slow down.

17             MS. GOY:  -- similar acts - I apologise - in all municipalities

18     and the acts in all municipalities were coordinated.  The mere scale of

19     crimes, approximately 3.000 killings and the forcible removal of more

20     than 100.000, shows the necessary participation and cooperation of

21     various groups and shows planning at all levels.

22             The Trial Chamber specifically found that this required the

23     involvement of the Bosnian Serb authorities on the central, regional, and

24     municipal level.  Trial judgement 710.  This leaves no other reasonable

25     conclusion than that the JCE members used the principal perpetrators.

Page 247

 1             The Trial Chamber explained further in detail how a core group of

 2     JCE members, the Bosnian Serb leadership, developed the plan to

 3     ethnically recompose the territories by expelling non-Serbs and

 4     drastically reducing their numbers and how they used the structures and

 5     organisations to do so.  They used an armed population which could deploy

 6     units locally and the support and cooperation of the JNA.  Trial

 7     judgement 925.

 8             They thus first relied on the JNA and then set up a Bosnian Serb

 9     army, the VRS, whose plan of action was broadly formulated by the

10     leadership.  Trial judgement 994.  They created a Serbian MUP which was

11     used in combat and for mopping up operations.  Trial judgement 255.  They

12     used paramilitaries to terrorise the population.  Trial judgement 979.

13     They exerted central influence on the municipal level through the

14     Crisis Staffs.  Trial judgement 267.  And the Crisis Staff functioned as

15     a coordinating body between the leadership and the municipal level on the

16     one hand and between the forces on the ground, the police, the military,

17     and the paramilitaries on the other hand.  And Krajisnik and Karadzic

18     further communicated the ideas of the leadership to the Bosnian Serbs

19     directly.  Trial judgement 1001.

20             To achieve the common purpose across the indictment

21     municipalities, the Pale-based leadership consolidated central authority

22     and by using these centralised structures, the Pale leadership and the

23     local representatives on the ground could better coordinate and cooperate

24     in carrying out the common purpose.  The members of the JCE thus made

25     sure that the purpose would be carried out by putting in place and using

Page 248

 1     these organisations and structures which were, as the Trial Chamber found

 2     in paragraph 1120, instrumental for the commission of the crimes.  They

 3     thus allowed -- thus allowed them to either directly through

 4     subordination or indirectly through close cooperation get the principal

 5     perpetrators to carry out the crimes in pursuance of the common purpose.

 6             Before handing over to Mr. Kremer, I would like to briefly

 7     address one legal issue with regard to joint criminal enterprise in this

 8     form.  JCE is a form of committing under 7(1) even when the principal

 9     perpetrators are not members of the JCE.  Only committing liability

10     properly reflects the criminality of the JCE members.  A group of people

11     who get together with the common purpose which amounts to or involves the

12     commission of crimes with a shared intent constitute a greater danger

13     than people acting alone.  They are able to achieve criminal results on a

14     scale which they would never be able to realise alone, such as the ethnic

15     cleansing of 35 municipalities in Bosnia.

16             It is the manifestation of this greater danger which merits the

17     designation as committing, and JCE has thus correctly and repeatedly

18     characterised as commission by the Appeals Chamber, for example, in could

19     Kvocka, paragraph 80, and in the Vasiljevic appeals judgement, paragraph

20     102.

21             Further, the Appeals Chamber in Milutinovic considered that the

22     high mens rea, the shared intent of the members of the JCE means that

23     they cannot be regarded as mere aiders and abettors, rather, that JCE has

24     to be regarded as a form of commission.  That's the decision on

25     Dragoljub Ojdanic's motion challenging jurisdiction, joint criminal

Page 249

 1     enterprise, of the 21st of May, 2003, paragraph 20.

 2             And the two reasons why JCE has to be committing, the high mens

 3     rea and the manifestation of the greater danger, do not change when the

 4     principal perpetrators are not members of the JCE but, rather, used by

 5     members of the JCE.  They still have to have the high mens rea, the

 6     shared intent, and the ability to commit crimes on a larger scale is even

 7     enhanced when others are used or instrumentalised to carry out the common

 8     purpose.  Liability under JCE thus remains a form of committing even when

 9     the principal perpetrators are not JCE members.

10             Unless Your Honours have questions, I would hand over to

11     Mr. Kremer who will address the question of link in more detail.

12             JUDGE POCAR:  Yes, Judge Shahabuddeen.

13             JUDGE SHAHABUDDEEN:  Ms. Goy, I have to admit that I tend to

14     commit this sin of summarising in my head what I've listened to, and

15     that, of course, could lead to the dangers of oversimplification, so

16     correct me if my understanding of your position is wrong.

17             In answer to the Appeals Chamber's questions concerning the link,

18     you have taken the position that there are two sets of crimes, crimes

19     committed by members of the JCE and crimes committed by non-members of

20     the JCE.  Then you would see, so I understand, no necessity to prove link

21     where the former are concerned.  You would only see a necessity to prove

22     a link where the latter are concerned, and this link you would prove by a

23     process of inferences.  You would say, so I understand you to say, that

24     these non-members were so closely related to the JCE that they must have

25     acquired their instructions from the JCE, including the appellant.

Page 250

 1             Well, would there be a question this way as to the relationship

 2     between an appeals court and a trial court so far as inferences are

 3     concerned?  Are we at liberty here to treat the position de novo and to

 4     make our own inferences, or are we bound in any way by the inferences

 5     made by the Trial Chamber?

 6             MS. GOY:  Thank you, Your Honours.  I'd like to answer the

 7     question in two parts.  First, I'd like to address the first part with

 8     regard to whether our position is that there is no link requirement or no

 9     requirement to establish a link where a member of the joint criminal

10     enterprise commits the crime.

11             In order to impute liability for that crime to the accused, one

12     has to establish a link but the link is a different type of link.  The

13     link is established through finding that this JCE member, the principal

14     perpetrator, had a common purpose with the accused and that they shared

15     the intent together, and when then the JCE member commits the crime in

16     furtherance of the common purpose, the fact that they have the purpose in

17     common and share the intent constitutes the required connection to impute

18     the crime.

19             With regard to the second category of cases where crimes are

20     committed by principal perpetrators who are not members of the JCE, we

21     agree that the -- on a -- on appeal what matters is to satisfy yourself

22     that the inferences that the Trial Chamber drew were reasonable

23     inferences, so that it is not for Your Honours to establish the link.

24     The link has been established by the Trial Chamber even implicitly

25     through the fact that they have convicted Krajisnik for those crimes, and

Page 251

 1     in our opinion, these were reasonable, even the only reasonable

 2     inferences in these cases where you have the vast majority of principal

 3     perpetrators in structures headed by members of the joint criminal

 4     enterprise and for those who were not in structures on the basis of this

 5     close cooperation throughout different municipalities in light of the

 6     pattern used, that they were actually used by the members of the joint

 7     criminal enterprise.

 8             JUDGE POCAR:  Judge Meron.

 9             JUDGE MERON:  I have two questions to you.  The first one draws

10     significantly on the question asked by my distinguished colleague

11     Judge Shahabuddeen.  In your argument you pointed out that the majority,

12     perhaps the great majority of crimes in this case were committed by

13     persons who were not members of the JCE.  So my question is:  Was the

14     Trial Chamber not required under our jurisprudence, specifically

15     Brdjanin, to systematically make findings imputing to a member of the JCE

16     or to Mr. Krajisnik, assuming that he's a member, crimes committed by

17     non-members?

18             I must say that I have not been persuaded that this has been done

19     in a systematic and specific way, and I am somewhat troubled by your

20     statement with regard to inferences which would be adequate in that

21     respect, inferences based primarily on close relationship with members of

22     the JCE.

23             My second question pertains to the question of protected speech,

24     political speech.  We have had extensive argument about it earlier today.

25             Now, in -- with regard to political speech, it doesn't have to be

Page 252

 1     established that political statements which otherwise would be protected

 2     were clearly designed to achieve an illegal purpose, and it will be

 3     helpful in that respect if the Prosecution could point to a specific

 4     statement or action by Mr. Krajisnik which would clearly reflect intent

 5     to advance common criminal purpose.

 6             Thank you.

 7             MS. GOY:  First turning to your first question, the Trial Chamber

 8     has, though not explicitly in the findings on Krajisnik's responsibility,

 9     established the links in detail with regard to each incident, but from

10     a -- reading the judgement as a whole, through the fact that in the parts

11     2 and 3 of the judgement they have established the -- said how the JCE

12     members established the structures and who was in the JCE members, and

13     through the fact of how these facts were then used in the implementation

14     of the common plan.  That, from our view, allows the inference and is in

15     fact the only reasonable inference that the physical perpetrator, those

16     in the structures and those closely cooperating with the structures were

17     carrying out crimes in pursuance of the common purpose.

18             And the Brdjanin appeals judgement, by setting out that the link

19     has to be established on a case-by-case basis and that it can be

20     established, inferred from the circumstances of the case such as close

21     cooperation allows for such an approach.

22             Turning to your second question, the protected speech.  As

23     mentioned in the beginning of my submissions, one has to distinguish

24     between the actus reus of the crime as such and the contribution of the

25     JCE member, and once that is made with the shared intent, with the high

Page 253

 1     mens rea, that would be sufficient as a contribution as long as it is

 2     significant.

 3             And we have addressed in our response to Mr. Krajisnik and in the

 4     response to amicus the -- our submissions why the Trial Chamber's

 5     findings on Krajisnik's shared intent were reasonable findings, and I'm

 6     not in a position at the moment to point Your Honours to something

 7     specific.  I can just refer you to the arguments that we have made in our

 8     brief with regard to the mens rea.

 9             JUDGE POCAR:  Before you take the floor, Mr. Kremer, I see we are

10     approaching the pause at 12.00.  Probably it's inappropriate for you,

11     unless you want to start for five minutes.  It will probably be more

12     beneficial for you to start -- to have the pause now, the break now, and

13     start immediately afterwards.

14             MR. KREMER:  That would be very helpful.  Thank you, Your Honour.

15             JUDGE POCAR:  Not to break too early your submission.

16             So we can break now for 15 minutes and reconvene at 10 past 12.00

17     for the continued response of the Prosecution.

18                           --- Recess taken at 11.57 a.m.

19                           --- On resuming at 12.15 p.m.

20             JUDGE POCAR:  I will now give the floor to the Prosecution, to

21     Mr. Kremer for the submission of the Prosecution in response, please.

22             MR. KREMER:  Thank you, Mr. President.  I'm going to continue on

23     the answer to the links question which was posed by Your Honours in the

24     Scheduling Order, and I will follow up on what Ms. Goy has stated in

25     terms of the legal structure and give it some factual substance.

Page 254

 1             Our analysis of the factual findings in part 4 and the legal

 2     findings in part 5 of the judgement revealed that the crimes are linked

 3     to Krajisnik and other JCE members by direct commission by JCE members,

 4     as Ms. Goy has commented, and through the JCE use of the principal

 5     perpetrators to commit the crimes.

 6             Our analysis did reveal a few errors and ambiguities in the

 7     judgement.  None involved the question of link and we filed with the

 8     Chamber yesterday a list of explanations.

 9             Our analysis showed that the crimes were committed either by JCE

10     members or by persons used by JCE members.  I will discuss both links to

11     crimes committed by JCE members and principal perpetrators used by JCE

12     members but will spend most of my time on principal perpetrators used by

13     JCE members.  The final part of my submission will address three

14     persecutory acts committed within the general framework of the common

15     purpose where the link is implicit.

16             First, there are multiple examples where a JCE member personally

17     committed crimes.  All these crimes can be imputed to Krajisnik because

18     Krajisnik and the JCE members who participated in the crimes shared the

19     common objective.  Their crimes became his crimes.

20             Ljubisa Mauzer Savic, leading SDS figure in Bijeljina and

21     commander of the Serb National Guard paramilitary unit, on May 7, 1992,

22     at least six Muslim men who had been hiding in Mucici, a part of Brcko

23     town, were shot dead by Mauzer and soldiers presenting themselves as

24     Seselj's men.  Paragraph 327.  For other crimes committed by Mauzer, go

25     to paragraph 305 and paragraph 325.

Page 255

 1             Mirko Blagojevic, leader of the Serb radicals paramilitary group,

 2     326 of the judgement.  On May 4th, 1992, Muslim firemen who had been

 3     detained at the fire station by JNA soldiers were beaten by Blagojevic.

 4             Branko Grujic, president of Zvornik SDS and Crisis Staff,

 5     paragraph 367.  On April 9th, 1992, Witness 674 was interrogated and

 6     beaten by Branko Grujic.

 7             Brothers Dusan Repic Vukovic and Vojin Zuco Vukovic, leaders of

 8     the Yellow Wasps paramilitary unit, paragraph 372.  The Yellow Wasps

 9     headed by the Vukovic brothers Repic and Zuco arrived at the Dom Kulture

10     on 11 June and killed at least five detainees.  One man had his ear cut

11     off.  Others had their fingers cut off, and at least two men were

12     sexually mutilated.  Repic's men forced detainees to eat the severed body

13     parts, killing two detainees who could not bring themselves to do so.

14             On June 27th, Repic returned to Dom Kulture alone and shot 20

15     detainees dead and wounded 22 others.

16             Vlado Vrkes, president of the local Banja Luka SDS.  Paragraph

17     509.  On 3 April, the Crisis Staff imposed discriminatory measures on

18     Muslims in Banja Luka.  SDS president Vrkes, accompanied by SOS members

19     and the Serb police, forced out the Croat director of the municipal SDK

20     appointing a Serb in her place.

21             Ratko Radic, SDS municipal president of Hadzici.  Paragraph 547.

22     In mid-July 1992, Ratko Radic transferred Witness 141 and her sister to

23     the premises of the factory outside Hadzici and were forced to work.  At

24     the factory, Radic raped the sister regularly.

25             Jovan Tintor, member of the SDS board -- Main Board and president

Page 256

 1     of Vogosca Crisis Staff.  Paragraph 598.  On 1 May 1992, a Muslim police

 2     officer in Sarajevo and his colleague were arrested by Serb TO.  They

 3     were taken to the police station in Vogosca town where Jovan Tintor

 4     interrogated and beat them.

 5             Dragan Gagovic, Foca police chief and Dragoljub Kunarac,

 6     commander of a reconnaissance group within the local Foca Tactical Group.

 7     Paragraph 640 of the trial judgement.  Here Muslim civilians were

 8     detained at Foca High School and Partizan Hall which was guarded by

 9     police officers.  Serb soldiers or policemen, including the chief of

10     police Dragan Gagovic, would come to these detention centres, select one

11     or more women, take them out and rape them.  Some of these women were

12     also taken out of these two detention centres by Serb soldiers, including

13     Dragoljub Kunarac, and subjected to sexual assaults.  During one rape,

14     Kunarac expressed the verbal and physical aggression, his view that rapes

15     against women were one of the many ways which the Serbs could assert

16     their superiority and victory over the Muslims.

17             Krsto Savic, commissioner for the SAO Eastern Herzegovina.

18     Paragraph 669 of the trial judgement.  On 16 June 1992, soldiers in

19     camouflage uniform led by Krsto Savic entered the house of a Muslim

20     resident in Nevesinje municipality.  During this operation, Savic shot

21     Redzep Trebovic in the leg.  The Serb soldiers held his wife back from

22     helping him.  When the family was allowed to bring him to the hospital

23     four hours later, he had died from the injury.  His house was burnt down.

24             Gojko Klickovic, president of the Bosanska Krupa War Presidency.

25     Paragraph 398 of the judgement.  On 28 April 1992, Klickovic ordered the

Page 257

 1     commanders of three battalions, of the 1st Podgrmec Brigade to

 2     immediately evacuate Muslim population from the territory under their

 3     control.  Pursuant to his order on 1 May 1992, the Executive Committee of

 4     Arapusa commune jointly with the local refugee committee and the

 5     battalion command issued instructions resulting in the unlawful detention

 6     of the 460 to the village of Fajtovici in Sanski Most municipality where

 7     1.200 persons were already detained.

 8             These examples of JCE members committing crimes not only

 9     establish the connection between the JCE members' crime and Krajisnik but

10     also show the JCE members used non-members to commit crimes to further

11     the common purpose.  They also show the type and style of leader who

12     joined the JCE and who played key roles in implementing the common

13     objective on the ground.

14             Let us now look at principal perpetrators who are not JCE

15     members.  They fall into two groups, those who were members of an

16     organisation headed by a JCE member and those who were not.

17             I will first review principal perpetrators who were not [sic] JCE

18     members but belonged to an organisation through which the JCE member used

19     them to commit crimes within the common purpose.  Then I will discuss how

20     the various organisations work to achieve the common purpose before

21     finally discussing those non-JCE members who were not part of an

22     organisation but were used by JCE members to commit crimes within the

23     common purpose.

24             Ms. Goy has already raised the names of the organisations that

25     were used headed by JCE members; Crisis Staffs, the JNA, the VRS, the

Page 258

 1     MUP, the TO, and paramilitaries at the republican, regional and local

 2     levels.  The local politicians and the organisations of the TO, military,

 3     police, and paramilitary through their commanders used their men to

 4     commit crimes pursuant to the common objective.

 5             Our position is, as Ms. Goy has stated, that the Trial Chamber

 6     was entitled to find that the JCE used them through this straightforward

 7     organisation -- organisational and structural link.

 8             From our analysis of parts 4 and 5 of the judgement and the

 9     evidence underlining the crime findings, I have prepared a map of

10     Bosnia-Herzegovina showing in a different colour each organisation; the

11     TO, the paramilitaries, the JNA, VRS, MUP, and the Crisis Staffs.  If you

12     could turn on your monitors.

13             The first -- first group of -- the first group to be entered is

14     the TO, and this shows the range of TO criminal activity during -- during

15     the period.  The low population on the map is due in part to the fact

16     that the TO was incorporated in some municipalities into the JNA and

17     in -- and later once the VRS was formed into the VRS.

18             Secondly, we'll add paramilitaries.  You'll see that the

19     paramilitaries were more active than the TO in committing crimes.  The

20     paramilitaries, like the TO, when the VRS was established also became

21     part of the VRS.

22             The MUP is the next one to be added -- I'm sorry, the JNA.  These

23     are the JNA or the VRS are carrying out activities throughout the

24     regions.  If we add the MUP, you will see that their population is also

25     in virtually all of the municipalities.  And finally the Crisis Staffs

Page 259

 1     that were the glue between or behind the fabric of ethnic cleansing in

 2     Bosnia-Herzegovina.

 3             The map illustrates that all of these groups were involved in

 4     crimes in the indictment municipalities as shown on the map, and it also

 5     serves to illustrate, the kind of intra- and inter-organisational

 6     cooperation that was taking place during the indictment period, in

 7     particular at the time when the municipalities were being taken over.

 8             The Prijedor municipality, which Your Honours know well from the

 9     Stakic case, also shows how JCE members used non-JCE who were not members

10     of the organisation.

11             First let me start with -- refer you to paragraph 470, and I'm

12     just summarising very quickly the events to show the scale and system

13     which is typical of not only Prijedor but the other municipalities.

14             The JNA and the police took control of Prijedor town on 30 April

15     1992.  Check-points were set up, important buildings were occupied,

16     important organs and companies were taken over.  Non-Serb police were

17     dismissed.  SDS removed the SDA from functions in the municipality.

18             471, the Crisis Staff assisted by soldiers or paramilitaries then

19     expanded the restrictive measures imposed on the non-Serb population.

20     The SDS controlled the propaganda machinery and how searches of the

21     non-Serb houses were conducted.

22             474, the 1st Krajina Corps of the VRS and the MUP continued

23     mopping up operations from late May 1992 onwards.  Paramilitaries fought

24     alongside the VRS.  Another JCE member appears here, Slobodan Kuruzovic,

25     member of the SDS Muncipal Board and the local TO commander was in charge

Page 260

 1     of Trnopolje camp.  He announced to his prisoners that the Serb plan was

 2     to reduce the Muslim population to 10 per cent, then 2 per cent of the

 3     population.

 4             478, on 26 May 1992, Kuruzovic commanding a special unit from

 5     Prijedor surrounded the village of Trnopolje while a detachment of the

 6     military police placed the remaining local residents in the elementary

 7     school.

 8             487, in three large detention facilities, Omarska, Keraterm and

 9     Trnopolje guarded by soldiers, police forces, TO, or a combination

10     thereof, teams of military and civilian authorities screened detainees.

11     The detainees were abused, beaten and killed.  Detainees -- I'm sorry,

12     the detainees were abused, beaten and killed by the guards and members of

13     local organisations and local Serbs who were routinely allowed into the

14     camps.  Thousands of people were detained there in cramped conditions

15     between May and November 1992 by armed soldiers under the control of

16     Kuruzovic.

17             From Trnopolje detainees were transported out of the

18     municipality.  That's 492.

19             493, camp authorities in Trnopolje did not distribute food, and

20     on occasion Serb soldiers beat and killed Muslim and Croat detainees.  In

21     one such incident, Serb soldiers took 11 detainees to a maize field and

22     shot them dead.  Moreover, soldiers coming from outside the camp and

23     Kuruzovic, the camp commander, raped the female detainees.

24             And finally 494, on 21 August, 154 detainees from Trnopolje were

25     placed on buses and taken to Koricanske Stijene in Skender Vakuf

Page 261

 1     municipality where they were executed by police and uniformed soldiers.

 2     That is the extent of the cooperation between the structures.  That is

 3     the extent of the cooperation and coordinated effort between the leaders

 4     of the various structures to ethnically cleanse Prijedor of its Bosnian

 5     Serb -- or Bosnian Muslim and Bosnian Croat minorities.

 6             Coordinated and cooperated -- cooperative action typified the

 7     method of operation to achieve the common purpose.  Not only did these

 8     organisations work together within municipalities, they also worked

 9     together across several municipalities.  Deportations and forcible

10     transfers frequently required coordination between organisations

11     operating in several municipalities to ensure a successful expulsion of

12     the minorities.

13             One brief example of this at the state and municipal levels will

14     suffice.  More than 400 detainees at the Vuk Karadzic school in Bratunac

15     operated by the MUP were transferred to a detention facility in Pale to

16     be exchanged for Serb prisoners.  Paragraph 315.

17             On 15 May 1992, Prime Minister Deric ordered that the Pale

18     detainees from Bratunac be transferred to Visoko in the territory of

19     Bosnia-Herzegovina outside Bosnian Serb control.  Deric ordered the

20     Sokolac Crisis Staff to provide three trucks for their transportation,

21     the Pale Crisis Staff to arrange their escort, and the Ilijas Crisis

22     Staff to allow the convoy to pass.  The Bosnian Serb Central Exchange

23     Commission processed their transfer.  Trial judgement 151, 1035, 156, and

24     244.

25             This is a cooperation at the state and local level involving the

Page 262

 1     prime minister and the Central Exchange Commission as well as local

 2     municipality leaders through which this convoy would have passed.

 3             Before I turn to the second type of principal perpetrators, those

 4     non-JCE members who are not part of the organisations, I propose briefly

 5     to discuss how the JCE members used their organisations and their

 6     connections of the -- with structures to the Pale-based leadership.

 7             The Pale-based leadership component directed and controlled the

 8     JNA, the VRS, the TO, the MUP, and the paramilitaries at the republican

 9     level, and at the local level control rested with individual politicians,

10     military and police commanders, and paramilitary leaders and others which

11     the Trial Chamber called the JCE rank and file.  I will discuss each

12     organisation briefly, but before I do so, I want to stress that the main

13     findings on structures are found in part 3 and part 6 of the judgement

14     and are useful in understanding just how tightly controlled these

15     structures were by the state and used by the state in order to achieve

16     the common purpose that was defined and communicated and eventually

17     implemented through the use of the structures and the people who worked

18     within them and who cooperated with them.

19             I'll start with the TO.  The TO as the municipal defence force

20     had close links with Crisis Staffs.  Crisis Staffs appointed and

21     dismissed TO commanders and received reports from TO units.

22     Crisis Staffs issued orders to the TO units on military matters.

23     Crisis Staffs, or their members, assumed a very direct military role and

24     got involved in military activities.  Crisis Staffs also provided various

25     forms of general assistance to the TO, calling for mobilisation within

Page 263

 1     their municipalities and providing financial and other assistance.

 2     Paragraph 285.

 3             Already on 15 April 1992, a JNA colonel had been appointed

 4     commander of the Bosnian Serb TO to supervise and control local TOs as an

 5     interim measure pending the creation of a Bosnian Serb army.  Paragraph

 6     946.

 7             When the JNA formally withdrew from Bosnia-Herzegovina, the TO

 8     units became part of the VRS.  Local Crisis Staffs often remained

 9     responsible for logistical support to the TO.  Paragraphs 285 and 186.

10             TO commanders who were JCE members implemented the common

11     objective by using members of their organisation.  Take, for example,

12     Marko Pavlovic, Serb TO commander in Zvornik.  Working together with

13     other JCE members, Branko Grujic, president of Zvornik SDS and

14     Crisis Staff, and Jovan Mijatovic, member of the Zvornik Crisis Staff and

15     deputy to the Bosnian Serb Assembly, to displace the Muslims of Kozluk.

16             On the night of 20 June, the Serb TO under the command of

17     Marko Pavlovic attacked Kozluk.  On 26 June, a large number of Serb

18     soldiers, TO, and paramilitaries entered Kozluk in tanks and other

19     military vehicles.  Among the group were Branko Grujic, Pavlovic, and

20     Jovan Mijatovic.  They informed the Muslims that they had one hour to

21     leave or they would be killed.  On the same day, a convoy of vehicles

22     organised by the Serbs who had attacked and taken over Kozluk,

23     transported approximately 1.800 persons out of the municipality to

24     Serbia.

25             Another example involving destruction of property involves

Page 264

 1     Nedeljko Davidovic, Serb captain of the TO at Banja Luka working together

 2     with JCE member Dragan Djuric, deputy to the Bosnia-Herzegovina and

 3     Bosnian Serb Assemblies.  I won't get into it but it's found at paragraph

 4     503.

 5             Let me move to paramilitaries.  Members of the Bosnian Serb

 6     leadership invited paramilitaries and appreciated their services.

 7     Plavsic sent letters to Seselj, Arkan and Jovic, together all who wanted

 8     to fight for Serbianhood.  Paragraph 938.

 9             Military leaders are members of the JCE -- or paramilitary

10     leaders are members of the JCE.  Individual paramilitary leaders are

11     identified by name in trial judgement 1088.  Arkan, Blagojevic, Kusic,

12     Mauzer, Milankovic, and Vukovic, as -- and many of those names you heard

13     as people who committed crimes themselves.

14             The Bosnian Serb leadership used paramilitaries opportunistically

15     to terrorise the Muslims and Croats in order to achieve the common

16     objective.  Notwithstanding their awareness of the serious problems posed

17     by the paramilitary formations in various municipalities as well as their

18     unruly behaviour.  Judgement 979.  But instead of suppressing these

19     groups, they incorporated them into the regular VRS units.  Some groups

20     invited by the SDS local boards, Crisis Staffs, and regional governments

21     were accepted as fighters for the Serbian cause despite their record of

22     lawlessness and ruthless efficiency.  Others were tolerated as long as

23     they did not pose too much trouble for the Bosnian Serb legitimate

24     authorities.  Paragraph 215 and 979.

25             Local SDS boards, Crisis Staffs, and regional SAO governments

Page 265

 1     also invited and assisted paramilitary groups, for example, the

 2     Yellow Wasps, the Red Berets, Mauzer's men, and Arkan's men operating in

 3     North-eastern Bosnia-Herzegovina, Bijeljina, Brcko, and Zvornik.  Trial

 4     judgement 215.

 5             Local paramilitary groups also formed within municipalities.

 6     They participated in the takeover crimes and later crimes in a number of

 7     municipalities and worked closely with police, political and/or military

 8     police organisations.  For example, in furthering the common objective,

 9     local politicians and the Crisis Staff in Cajnice worked in close

10     cooperation with the police, the military, and local paramilitary units

11     like the Blue Eagles which had clear links to the local Serbian

12     authorities.  Trial judgement 618.

13             When the JNA withdrew from Visegrad on May 19th, the town was

14     under the control of the local Serb authorities which had an exclusively

15     Serb police.  The local Serb authorities permitted paramilitaries to

16     operate within the town.  Paragraph 696.  Their use to further the common

17     objective is demonstrated by their actions.  Paramilitaries subjected the

18     Muslims to mistreatment and humiliation, to rapes and beatings.  Serb

19     forces, which included paramilitaries, killed more than 266 non-Serb

20     civilians, mostly Muslims in Visegrad in June 1992 and the following

21     months.  Trial judgement 701.  More than 200 are categorised as

22     disappearances by the adjudicated facts which the Trial Chamber inferred

23     was committed by Serb forces.  Trial judgement 698 and 701.

24             JCE member and military leader Milan Lukic's local paramilitary

25     unit -- local paramilitary leader used his unit to kill approximately 66

Page 266

 1     people by locking them in a house and setting it on fire and shooting

 2     those who tried to escape.  Paragraph 699.  They were also used to

 3     appropriate property.  696.  Their crimes fit the pattern and advanced

 4     the common plan to terrorise the population into leaving.  The police

 5     participated in expulsions.  The cooperation between the local

 6     authorities in the municipality with the paramilitaries was so efficient

 7     that within a few weeks Visegrad was almost completely cleansed of its

 8     Muslim civilians.  Paragraph 700.

 9             I've discussed earlier the crimes committed by JCE members and

10     paramilitary leaders like Mauzer, Blagojevic, the Vukovic brothers, and I

11     refer Your Honours to the paragraphs that I've cited concerning their

12     crimes because it also shows how they used their paramilitary units to

13     commit crimes.

14             Turning to the army.  With regard to the crimes committed by

15     members of the army, the Trial Chamber distinguished before the period --

16     or the period before and after the establishment of the VRS on 12 May

17     1992.

18             When the takeover started in April 1992, the JNA, together with

19     the non-enlisted Bosnian Serb men of fighting age, were the Serbian army

20     on the ground.  Judgement 925.  The cooperation between the JNA and the

21     Bosnian Serb leadership was not a closely guarded secret.  Paragraph 946.

22     Krajisnik knew of the JNA's cooperation in the takeover of power.

23     Paragraph 947.  The Trial Chamber explicitly rejected Krajisnik's claim

24     that the JNA was neutral prior to 12 May 1992.  Paragraph 192.

25             As stated in March 1992 by the JNA 2nd Military District

Page 267

 1     commander, the leadership of the Serb people and all Serbs are ready for

 2     war.  Paragraph 42.

 3             JNA commanders, JCE members used soldiers, non-JCE members under

 4     their control to further the common objective.  Take, for example, JCE

 5     member Lieutenant Colonel Tadija Manojlovic, a JCE officer who at the end

 6     of April 1992 ordered JNA heavy artillery, rocket launchers,

 7     anti-aircraft guns and tanks to be fired every evening on targets in

 8     Sarajevo neighbourhoods.  The Serb SJB also took part in the attacks.  By

 9     early May 1992, Serb forces controlled Ilidza.  Paragraph 553.

10             JCE member General Jankovic, commander of the 17th Corps of the

11     JNA, was involved in the takeover of Bijeljina and the unlawful detention

12     of about 3.000 civilians, mainly Muslims, at the Bijeljina barracks and

13     Patkovaca barracks.  That's in paragraph 301.

14             Another JCE member, Captain Reljic, JNA commander, participated

15     in the takeover of Bratunac municipality.  On 16 April, the TO in

16     Bratunac was mobilised and in the following days, Arkan's and Seselj's

17     paramilitary units and the JNA unit under the command of Captain Reljic

18     arrived in the municipality.  While the JNA and the TO began disarming

19     Muslim villagers throughout the municipality, the paramilitaries harassed

20     locals and pillaged abandoned Muslim homes.

21             Most of the Muslim leadership left Bratunac municipality for

22     Srebrenica after receiving threats from these Serb paramilitary units.

23     This effectively surrendered Bratunac to Serb control.  Paragraph 311.

24             The VRS was established, as I've already said, on 12 May 1992, at

25     a session of the Bosnian Serb Assembly.  Krajisnik promoted the creation

Page 268

 1     of the VRS.  Ratko Mladic was appointed as commander of the VRS

 2     Main Staff.  Paragraph 194.  Mladic was directly subordinated to the

 3     Presidency.  The same paragraph.  Mladic as commander of the Main Staff

 4     was a member of the JCE.  His military commanders on the ground were also

 5     found to be members of the JCE.

 6             The VRS Main Staff kept members of the Presidency well briefed on

 7     the military situation throughout the Bosnian Serb republic.  The

 8     political leadership passed orders to the military officers, including

 9     oral orders and orders given to military officials attending Presidency

10     sessions.  Paragraph 206.

11             The VRS was involved in the full range of crimes committed during

12     attacks and detention.  Soon after its establishment, the VRS issued

13     written orders for the detention of all Muslim men fit for military

14     service.  Paragraph 1038.

15             The use by a JCE member of the VRS to implement the common

16     purpose is illustrated by the actions of JCE member Major

17     Svetozar Andric, commander of the VRS 1st Birac Brigade, whose brigade

18     was active in Zvornik in April and May 1992.

19             Around 28 May, between 400 and 500 Muslims in Divic village,

20     including women, children, and elderly persons, were forced under -- onto

21     buses by members of the Yellow Wasps and told that they would be taken to

22     Muslim territory.  Andric issued an order on 28 May 1992, from the

23     command of the VRS 1st Birac Brigade to the Zvornik TO:  "The moving out

24     of the Muslim population must be organised and coordinated with the

25     municipalities through which the moving is carried out.  Only women and

Page 269

 1     children can move out while men fit for military service are to be placed

 2     in camps for exchange."  Paragraph 1043.

 3             Another VRS Commander Marko Adamovic, a commander of the VRS

 4     military police unit operating in the Kljuic region, around 1 June 1992,

 5     Adamovic with approximately 100 armed Serb police officers arrived in the

 6     Muslim village of Provo.  40 unarmed villagers including women and

 7     children were ordered to line up facing the wall of a house.  Several

 8     residents were beaten and between five and eight men were killed.

 9     Adamovic ordered the soldiers, through a megaphone, to set the village on

10     fire and to kill the women and children.  When the male residents were

11     led out of the village in the direction of Peci, an explosion and

12     gunshots were heard coming from the village and the Serb soldiers opened

13     fire on the civilians who remained.  A soldier threw a grenade into the

14     crowd killing several women.  As a result of the shooting, about 38

15     people were killed, including children and at least one house was burned

16     town.  Paragraph 450.

17             Another brief example, General Momir Talic, commander of the 1st

18     Krajina Corps, controlled Manjaca camp in Banja Luka.  The crimes in

19     Manjaca camp which held from several hundred to 3.000 detainees were made

20     possible only through using his VRS soldiers and others including local

21     Serbs willing to assist.  383 to 384.

22             The other VRS-controlled detention camps described in the

23     judgement were no different.

24             Moving to the police and the scene repeats itself again and again

25     and again.  There is complete control by JCE members over what is going

Page 270

 1     on and they are using their members, their police officers, their

 2     soldiers to commit the crimes to further the common purpose.

 3             Mico Stanisic, minister of interior and head of the police, was a

 4     named member of the Pale-based leadership component of the JCE.  1087.

 5     Under Stanisic were regional CSBs and municipal SJB police commanders.

 6     Local police commanders are included as JCE members and Simo Drljaca and

 7     Stojan Zupljanin are specifically named.  The Trial Chamber found in

 8     paragraph 255 that MUP forces were involved in criminal activities in the

 9     indictment municipalities ranging from mere war profiteering to the

10     running of detention centres where Bosnian Muslims and Bosnian Croats

11     were subjected to ill-treatment.  In the course of 1992, the Bosnian Serb

12     MUP became heavily involved in the operation of detention centres.

13     Paragraph 249.

14             Units also participating in forcing non-Serbs to leave

15     municipalities that ought to become Serb territory from April to December

16     1992, MUP police officers were also extensively engaged in combat under

17     the VRS.

18             The MUP leadership also participated in the common criminal

19     purpose.  JCE member Vitomir Popic, the police commander of Gacko, used

20     his officers and local Serbs to commit unlawful imprisonment, murder,

21     rape and torture.  In late May and early June 1992, the local police

22     under commander Popic together with local leader of the White Eagles

23     began arresting Muslims and taking them to a detention camp in Bjelica

24     municipality.  In early June, there were around 120 Muslim detainees at

25     the Gacko police station.  Some of the detainees were beaten frequently.

Page 271

 1     The conditions of detention were harsh.

 2             On 3 July 1992, five Muslim men were executed by seven local Serb

 3     men led by police commander Popic.  On 4 July 1992, in the same police

 4     station, Popic forced a detainee to watch the rape of his own wife by a

 5     Serb man from the Munja unit of the Red Berets assisted by two other Red

 6     Berets.  Paragraph 656.

 7             Those are the military groups but the political structures or the

 8     political people in the Crisis Staffs and in the SDS party were no

 9     different in terms of their conduct.  They, too, were connected from --

10     to the Bosnian Serb leadership through the various members placed there

11     by the Bosnian Serb leadership.

12             SDS policies and SDS members played an important role in the

13     implementation of the common plan.  The Pale-based leadership were all

14     senior SDS politicians.  Krajisnik was a member of the SDS Main Board and

15     president of the Bosnian Serb Assembly.  Radovan Karadzic was president

16     of the SDS.  Local politicians were to be -- were found to be members of

17     the JCE.  Many were specifically named in trial judgement 1088.  Many of

18     them were SDS deputies or SDS Main Board members.

19             One of Krajisnik's contributions to the JCE was formulating,

20     initiating, promoting, participating in and/or encouraging the

21     development and implementation of SDS policies intended to advance the

22     objective of the joint criminal enterprise.

23             The SDS Crisis Staffs were transformed into republican organs on

24     4 April when the SNB ordered their activation and instructed that the TO

25     and the reserve police officers be put in readiness.  Paragraph 263.

Page 272

 1             The SDS's coordinating role of and dominant influence over

 2     municipal Crisis Staffs is reflected by the fact that almost every

 3     Crisis Staff in the municipalities covered by the indictment included at

 4     least one deputy from the Bosnian Serb Assembly or a member of the

 5     SDS Main Board.  Paragraph 265 and 266.

 6             The Crisis Staffs reported via the SDS Main Board, via the

 7     Bosnian Serb Assembly, and individual leaders such as Karadzic and

 8     Krajisnik and directly to the Bosnian Serb Presidency.  Paragraph 270.

 9             Municipal Crisis Staff actions were Pale-based leadership

10     actions.  Paragraph 267 summarises it best by ensuring that at least one

11     Assembly deputy was a member of the municipal staff allowed the Bosnian

12     Serb leadership to exert a substantial amount of control and central

13     influence over them.  The president of the Ilidza Crisis Staff perceived

14     this system as one of organisational subordination of the Crisis Staffs

15     to the president of the Assembly himself.  I needn't remind you that this

16     was Krajisnik.

17             The Bosnian Serb leadership through party or republican organs

18     issued direct orders or instructions to Crisis Staffs which were received

19     and acted upon.  Crisis Staffs in turn would cite orders and decisions

20     from regional and central organs as the basis for their actions.  The

21     central republican authorities also supported Crisis Staffs materially

22     through loans, direct funding, and material including weapons and

23     ammunition.  Judgement 140, 268, and 270.

24             The Bosnian Serb leadership further tightened its grip over the

25     municipalities on 10 June 1992 when the Presidency replaced

Page 273

 1     War Presidencies with War Commissions consisting of four members

 2     including a state commissioner appointed by the Presidency.  The state

 3     commissioner would appoint the other members who would have to be

 4     confirmed by the Presidency.

 5             From July 1992, Krajisnik was the Presidency member in charge of

 6     and its contact person for the war commissioners.  Paragraphs 271, 274,

 7     276, 182, and 277.

 8             The Crisis Staffs were the glue that held together the machinery

 9     working to achieve the common purpose.  Under the dominant influence of

10     the SDS, they were the coordinating body between political, military, and

11     other forces in the municipality.  Paragraph 266.  They took control over

12     the takeover of municipality with the assistance of the TO, the

13     paramilitaries, the army, and/or the MUP.  Taking control meant using

14     them to set up check-points, disarm the non-Serb population, establish

15     and enforce curfews, and a whole myriad of other discriminatory measures

16     against the non-Serb population to force them to leave the territory.

17     How the actions of political leaders furthered the common purpose is

18     illustrated by Nedjeljko Rasula, president of the Sanski Most

19     Municipal Assembly and deputy to the Bosnian Serb Assembly.

20             On 22 June, around 20 detainees from Betonirka prison camp were

21     taken to nearby Kriva Cesta where they were ordered at gunpoint by

22     soldiers in olive-grey uniforms to dig their own graves.  A group of 10

23     persons, among them Rasula, sat at a picnic table nearby watching the

24     digging.  When the detainees had finished, a soldier slit the throats of

25     all but three detainees who were taken back to the camp.

Page 274

 1             Then there is Dusko Kornjaca, SDS Crisis Staff president of

 2     Cajnice, SAO Herzegovina deputy minister.  "In June 1992, Serb

 3     authorities destroyed the mosques."  I am quoting from judgement 620.

 4     "Serb authorities destroyed the mosques in the town of Cajnice using

 5     artillery and explosives.  The SDS Crisis Staff president Kornjaca was

 6     reported to be publicly enthusiastic about this action.  Later in 1992,

 7     he ordered the destruction of all other Muslim religious sites in order

 8     to eradicate traces of the Muslim presence in Cajnice."  Paragraph 620.

 9             I also remind you of the other local and state political leaders

10     I mentioned under the people who committed JCE-member crimes, and what

11     this demonstrates is that Krajisnik had and was in the company of

12     SDS Main Board members, SDS Assembly deputies or Assembly deputies all

13     who were involved personally in the commission of crimes across the

14     municipalities.  We're not focused on one municipality as an example.

15     These are representative of what was happening in every municipality and

16     the Trial Chamber chose to specifically name some of the JCE members and

17     name others more generally like a commander of a -- of the JNA or a

18     commander -- a local commander of the police as the person responsible

19     for the crimes.  But what is clear from all of these examples is that all

20     of these leaders used their men to either personally commit crimes or to

21     commit crimes that furthered the common objective.

22             Let me now turn to the second type of principal perpetrator, not

23     a member of the organisation.

24             As has already been alluded to, JCE members sometimes used

25     persons who were not members of their structure to commit crimes.  These

Page 275

 1     persons worked for, in concert, or in close cooperation with the

 2     organisations.  Ms. Goy referred to them as local Serbs, and so will I.

 3             For example, Serb locals working as guards in and Serb locals

 4     allowed into detention camps committed crimes against detainees.  We've

 5     seen several examples already.  The Trial Chamber was entitled from the

 6     evidence to infer that they were used by the JCE members responsible for

 7     the camps.

 8             As discussed earlier in the Keraterm, Omarska, and Trnopolje

 9     camps run by the MUP and the VRS, detainees were executed and subjected

10     to severe mistreatment which included psychological abuse, beatings,

11     sexual assaults, and torture.  The crimes were also committed by Serb

12     locals who were routinely allowed to enter the camps to abuse, beat, and

13     kill prisoners.  Paragraph 487.

14             Another example of armed Serb locals supporting the JNA, VRS and

15     takeover mopping operations and committing crimes of murders, destruction

16     of property, et cetera, is found in paragraph 630.  Outside the town of

17     Foca, Serb forces took over Muslim -- took over or destroyed Muslim

18     villages in the Foca municipality.  The attacks continued until early

19     June 1992.  The Serb forces consisted of military, police, paramilitary,

20     and sometimes Serb villagers.  During attacks, Muslim houses and

21     apartments were systematically ransacked and burnt down.  Muslim

22     villagers were rounded up or captured and sometimes beaten or killed in

23     the process.  This is one of several examples of JCE members using

24     non-JCE members, Serb locals, to achieve the common purpose.  They

25     weren't within the structure but they worked closely in cooperation with

Page 276

 1     the structure to achieve the goal of the common purpose.

 2             Sometimes the connection between the JCE member and the Serb

 3     locals is not so clear in the judgement paragraph where the reference is

 4     found.  As Ms. Goy has explained, the Trial Chamber was entitled to draw

 5     inferences from the evidence underlying the entire paragraph, the entire

 6     section on the municipality, or the other parts of the judgement to find

 7     the link.  The Trial Chamber did not need to specify every link for every

 8     crime.  In any case, the links between the crimes and the JCE members

 9     become clear upon looking at the evidence that's cited in the judgement.

10             Let me provide an illustration from the Bratunac municipality,

11     paragraph 315.  On May 10, 1992, Serb paramilitaries also attacked

12     Krasan Polje in the Vitkovici -- or near Vitkovici in Bratunac

13     municipality.  On that day, over 500 Muslim men from villages in Bratunac

14     were detained in the Vuk Karadzic school.  Detainees were severely

15     mistreated and beaten repeatedly.  Dozens were killed by armed Serb

16     locals and members of paramilitary groups.  Three guards forced all

17     detainees in a huddle in the section of the sports hall resulting in

18     seven or eight suffocating to death.  Several men were taken off by the

19     guards and killed.  About 50 detainees were beaten or shot to death by

20     the guards in the sports hall.

21             This paragraph identifies the principal perpetrators as armed

22     Serb locals, members of the paramilitary groups and guards.

23             You may ask:  How was the Trial Chamber entitled to infer that

24     they were used by JCE members?  The evidence footnoted provides the

25     answer.  Exhibit P485 establishes that the head of the MUP was in charge

Page 277

 1     of the Vuk Karadzic school.  Part of the school building was headquarters

 2     for the Serb military forces.  An armed soldier guarded the gym or sports

 3     hall.  P72 establishes that JNA reservists guarded the school.  The link

 4     is through the camp commander, the head of the MUP and the local

 5     commander of the JNA.

 6             The Serb locals in this example acted in concert or close

 7     cooperation with the members of the army and police when they committed

 8     the crimes furthering the common purpose.  The JCE member heading the

 9     organisation would have to authorise or permit their use.  Neither they

10     nor the members of the organisation were punished or disciplined for

11     committing the crimes.  In fact, they and the members of the organisation

12     committed these crimes again and again.  They acted and were treated just

13     like the members of the organisation.  Thus when they committed crimes,

14     the JCE member used them like members of his organisation.

15             My answer to your question applies to all of the crimes committed

16     by non-members.  Our analysis shows that there is an answer and a link

17     through a structure, either directly or working with a structure for

18     every one of the crimes.  There is a single factual finding, however,

19     where the inference is attenuated.  An example is contained in a lengthy

20     paragraph in judgement paragraph 670.  The paragraph describes many

21     crimes committed against a group of Muslims who fled Presjeka village in

22     Nevesinje municipality to the Velez mountains on 22 June 1992 after Serb

23     forces shelled their village.  The finding in question is:  "Sixteen

24     elderly persons who could not keep pace were left behind and were later

25     killed by a local Serb."

Page 278

 1             The evidence cited in the judgement does not provide more

 2     information as to the link to a JCE member.  The paragraph does not find

 3     that the attacking and detaining forces -- or does find that the

 4     attacking and detaining forces surrounding this event to be Serb forces,

 5     including the VRS.

 6             Under the circumstances in light of the evidence, it was

 7     inferred, I believe, that the Trial Chamber held that the local Serb was

 8     part of the attacking Serb forces.  That is an inference -- that is the

 9     only inference that is capable in light of the scantiness of the

10     evidentiary record, but that is the single problematic link that we were

11     able -- that we identified during the course of our review of every

12     crime.

13             Let me just very quickly deal with the final part of my remarks,

14     which is the way in which acts of --

15             JUDGE POCAR:  Sorry.

16             MR. KREMER:  Yes.

17             JUDGE POCAR:  Judge Meron would like to put to you a question.

18             JUDGE MERON:  I just would like to make sure that you address the

19     argument made earlier by the counsel suggesting that Mr. Krajisnik, as

20     head of parliament and not of an executive organ, could not be considered

21     a member of a properly defined JCE because he, it was argued, was

22     involved only in local diplomatic and political efforts.  I think we sort

23     of owe it to the counsel to -- for the Prosecutor to relate to that too.

24     It would have been helpful, for example, if the Prosecution could point

25     to specific speeches by the appellant establishing beyond a reasonable

Page 279

 1     doubt that he shared unlawful common purpose of a JCE.

 2             Thank you, President.

 3             MR. KREMER:  First of all, I would remind the Chamber that this

 4     case is not about hate speech, that this case is about contributing -- or

 5     joining a JCE which had as its common purpose the commission of crimes,

 6     in this case the commission of serious crimes over a large, large area,

 7     crimes involving murder, extermination, persecution, deportation, and

 8     unlawful transfer.

 9             The decision on mens rea was not formed only on the speeches that

10     Mr. Krajisnik made.  It's made on the basis of all of the evidence, all

11     of the evidence involving the participation of the Bosnian Serb

12     leadership in the implementation and carrying out of the common purpose.

13             Specifically on Krajisnik's mens rea, I should point Your Honour

14     Judge Meron and the Chamber to paragraph -- or to P292, which is at tab

15     21, particularly at page 4 where Mr. Krajisnik says the following:

16     "Everything we do in this parliament, everything I do personally I do

17     exclusively for pure areas."

18             It makes no -- there's no ambiguity with what he says.  It is not

19     a political speech said to all of the parliamentarians, this is what

20     we're doing, and the people who are doing it are the parliamentarians who

21     were present there.  They knew what he was talking about and he knew what

22     he was talking about.  Given the mass of evidence that the Trial Chamber

23     had before it about who was involved in these crimes, SDS members, SDS

24     deputies, the leadership, the instrumentalisation of structures, it

25     was -- the only conclusion that they could draw was that Mr. Krajisnik

Page 280

 1     was in it as deep as everyone else.  And in fact, they found as a result

 2     of the evidence that they heard he was at the top of it.  He was the

 3     person, together with Karadzic, who was implementing it.  They worked

 4     together to make sure that his vision of a pure area, a pure Serbia, free

 5     of Muslims and free of Croats was achievable, and they achieved it by

 6     using structures of the state in a criminal way to make sure that it was

 7     achieved.  And it was achieved nine months later at the cost of 3.000

 8     lives and at the destruction of over a hundred thousand lives of people

 9     who had lived in the region for centuries.

10             Yes, as Mr. Dershowitz says, you've got to look at the history,

11     but don't look at it from the perspective of the Serbs.  Look at it from

12     the perspective of the people that they drove out.

13             If I could have five minutes, I promise to finish.  Thank you.

14             The judgement did not in most cases make an individual specific

15     factual finding with regard to the links for three acts of persecution,

16     unlawful detention, destruction of personal property and cultural and

17     sacred sites.

18             What the Trial Chamber did is it expressly dealt with the more

19     significant examples from each municipality based on the overwhelming

20     evidence of systematic pattern of unlawful detention, destruction of

21     property across the indictment municipalities.  This evidence allowed the

22     inference that the acts were part of the common objective and were

23     carried out using organisations under the control of the JCE, otherwise

24     Serb forces.  And I'll just deal with one example and then wrap up.

25             For example, the Trial Chamber found unlawful detention in 33

Page 281

 1     municipalities, in more than 350 detention facilities.  Paragraph 810.

 2     An example from Prijedor municipality illustrates how they dealt with it

 3     for detentions, 483.  Serb authorities detained mostly Croat and Muslim

 4     civilians in 58 detention and collection centres in Prijedor municipality

 5     in 1992.  Five of them were considered long-term detention centres,

 6     Keraterm, Trnopolje, Omarska.  The police station in Prijedor town and

 7     the command posts of Miska Glava.  The other 53 locations mentioned in

 8     schedule C of the indictment were places of short-term detention.  Most

 9     of the Muslims and Croats in Prijedor were detained for some period of

10     time at one of those detention or collection centres in 1992.

11             The five detention centres mentioned are discussed in detail.

12     The 52 others, or 53 others, are not.  Although the Trial Chamber finding

13     does not contain further details regarding who established and operated

14     the additional unlawful detention facilities, it is our submission that

15     the Chamber was entitled to infer these -- that these acts were part of

16     the common objective and were operated by Serb forces or Serb authorities

17     acting in pursuit of it.  Why?  Because all of the evidence demonstrated

18     a system and pattern of detention facilities operated and used by the JCE

19     members to carry out the common objective in their relevant

20     municipalities.

21             Detention was part of the pattern of attack of the non-Serb --

22     against the non-Serb population.  Paragraph 708.  The civilian detention

23     centres were an instrument as much as they were an intermediate step in

24     the logic of dislocation and expulsion.

25             THE INTERPRETER:  Would counsel please slow down.  Thank you.

Page 282

 1             MR. KREMER:  I'm sorry.

 2             Paragraph 1055.  Detention of civilians was used as a method of

 3     pressuring non-Serbs to leave the territory.  Paragraph 1043.

 4             The same approach was used for destruction.  Destruction, when

 5     you look at it carefully, was through or with the cooperation of the

 6     organisations used by the JCE members.  The Serb forces used heavy

 7     artillery, mortars and tanks as well as explosives or incendiary devices

 8     to destroy non-Serb property.  Paragraphs 830, 837, and 838.

 9             Destruction was part of the pattern of the attack on the non-Serb

10     population described by the Chamber in paragraph 707 to 709.  Destruction

11     of houses rendered it impossible for the villagers to return.  Paragraph

12     708.

13             With regard to the destruction of cultural property,

14     Predrag Radic testified that in 1992, Serbs destroyed mosques in various

15     parts of the ARK in order to wipe out traces of the Muslims' existence.

16     Paragraph 378.  That the Bosnian Serb leadership accepted and approved of

17     this systematic destruction of non-Serb private property comes from the

18     minister of justice himself.  On May 5th, 1992, Momcilo Mandic in a

19     telephone conversation with Brano Kvesic said:  "We are holding Turks

20     under siege in Sarajevo."  He added that:  "We want to build a new and

21     nice Sarajevo.  We don't like this old synagogues and mosques.  We have

22     to change architecture and everything."  And by April 23rd, Mandic would

23     level a Sarajevo municipality to the ground.

24             The Bosnian Serb leadership accepted the destruction of civilian

25     settlements would be swift and vast.  Trifko Radic reported to the

Page 283

 1     Bosnian Serb Assembly on 12 May 1992 that "we have no other solution but

 2     to shell and destroy towns.  We have destroyed one third of Visoko, maybe

 3     tonight another third will go."  Paragraph 974.

 4             Our position is that using a descriptive approach was justified

 5     giving the consistent pattern of recurring detentions, recurring

 6     destructions during attacks and takeovers which were all directed to

 7     drive out the non-Serb population from the indictment municipalities.

 8             The Trial Chamber reasonably concluded that the acts of detention

 9     and destruction were committed by Serb authorities or Serb forces and

10     that they could be linked to JCE members carrying out the common

11     objective.  Each of these facilities and each of these acts were

12     commanded by a leader on the ground, whether it's a local police leader,

13     a local military leader, a Crisis Staff member, the link is there.  The

14     link is a structural link and the link is a human link.  The human link

15     is the JCE member whether he is defined or not, whether he was found to

16     have committed crimes or not.  And our position is that it was not

17     necessary for the Trial Chamber to look to each and every crime committed

18     throughout the nine years or the -- I'm sorry, the nine months from -- in

19     the indictment period and link the actual physical perpetrator to a JCE

20     member specifically by name.  That is not required.  The evidence showed

21     clearly that the leaders of the structures were controlled and -- by JCE

22     members who shared the common plan, and the crimes that they committed

23     were a part of the common objective.  There could be no doubt that all of

24     the crimes committed by the Serb forces in the takeovers and following

25     the takeovers, particularly in respect of detention and destruction

Page 284

 1     crimes, were committed by them and were part of the common objective and,

 2     therefore, properly linked.

 3             Unless you have some questions, those are my submissions.

 4             JUDGE POCAR:  Thank you, Mr. Kremer.

 5             Any questions from my colleagues?  There are no questions, so

 6     this concludes the response.

 7             We are slightly behind schedule, but I wanted to give equal time

 8     to the parties.

 9             Perhaps I wonder whether it is more appropriate to break now

10     instead of going on up to almost 2.00 and have the reply at the beginning

11     of the afternoon, but of course I'm in the hands of the -- if the Defence

12     prefers to have the reply now.

13             MR. A. DERSHOWITZ:  [Microphone not activated] ... Either is

14     acceptable.  I would prefer --

15             THE INTERPRETER:  Microphone, please.  Microphone.

16             MR. A. DERSHOWITZ:  [Previous translation continues] ... response

17     later we can do that.

18             JUDGE POCAR:  How long do you need for the response -- the reply?

19             MR. A. DERSHOWITZ:  Probably half an hour but we could also break

20     it up.  We're dividing it --

21             JUDGE POCAR:  It's up to -- I see the bench is divided, so we

22     don't have a common position on this.

23             MR. N. DERSHOWITZ:  We bow to the higher authority.

24             JUDGE POCAR:  But in that case, of course, we break now we

25     reconvene at 3.00, not at 3.15.  We break for one hour and a half.

Page 285

 1                           --- Luncheon recess taken at 1.28 p.m.

 2                           --- On resuming at 3.04 p.m.

 3             JUDGE POCAR:  We resume the hearing, and I will give the floor to

 4     the Defence for the reply of the appellant as scheduled.

 5             MR. N. DERSHOWITZ:  Again, I'd like to thank the Tribunal for

 6     both allowing me the opportunity to make the presentation and also for

 7     your arranging to have lunch before it was necessary for me to present

 8     our reply, and particularly because it gave me an opportunity to look at

 9     the document that the Prosecutor had made reference to about the pure

10     area, a reference we had never seen, a reference which is not contained

11     anywhere in the decision.

12             There is a discussion, however, on paragraph 905, excuse me, 905

13     in the decision which explains that reference, and it's very interesting.

14     It starts off -- in the decision it says:  "The accused deftly handled

15     the political fracture at the February 28, 1992, meeting of the Deputies

16     Club."  And if you read the five pages of notes, you will see that

17     Mr. Krajisnik did deftly handle the problem.  What was happening is he

18     was pushing for a vote and a constitutional determination to be made

19     following the Cutileiro recommendations which had been made and that if

20     you read the minutes, what happened was a separate group from Krajina was

21     looking to expand Serbia into Muslim areas.  They wanted a much wider

22     Serbia, and he was looking for a more limited Serbia covering the

23     sections that had extensive populations of Serbians and not wanting to

24     expand in as the other group, the more radical group, wanted.  And if you

25     review the four or five pages, they are so reflective of everything that

Page 286

 1     we have been saying from the beginning.

 2             He talks about:  "Therefore, it is good for us to all understand,

 3     to forgive one another if something we say sometimes without a solid

 4     basis," he's referring to the other side, "we must find a way to solve

 5     the problem.  I think we can find a solution."  He goes on to say, "I

 6     don't think they're bad people."  He's referring now to those who want to

 7     expand, and he's talking about, "As far as the constitutional --

 8     constitution is concerned, gentlemen, we need this constitution, and I

 9     hope at that God willing we will finish in a month or two.  We need a

10     democracy of Bosnia."  He goes -- it's a full reflection in every sense

11     of a political position.

12             The quote that was referred to is also interesting.  It goes on

13     and it starts discussing, "Tomorrow let them adopt the constitution."  He

14     was talking about having the Serbian people, by its constitution, make a

15     determination as to whether they wanted to adopt the more limited

16     Cutileiro Plan or to allow others who are looking for a more expansive

17     view to adopt their more expansive view, and he was pushing for the more

18     limited view at that time.

19             And it goes:  "We don't have to fear that much.  They are

20     Serbs -- we are Serbs.  We cannot understand reality.  God help the

21     Serbian people.  No one has the right to do that, bypassing our unity.  I

22     tell you, everything we do in this parliament, everything I do personally

23     I do exclusively through pure areas of [unintelligible] Herzegovina

24     [unintelligible].  I will not yield that right to tell the people of

25     Krajina that they are not right."  What he is saying is, we want the

Page 287

 1     section that had been discussed earlier by the international community, a

 2     section that was primarily Serbian and not expanding to territories which

 3     were not Serbian, and therefore the other group which wanted to expand,

 4     he was saying no, let the constitution apply.

 5             In response to Judge Meron's question of Ms. Goy, she said that

 6     they had previously filed documents stating their position as to which

 7     were the critical paragraphs which showed that Mr. Krajisnik joined

 8     the -- the JCE, and I have pulled out five or six of the critical

 9     paragraphs that they rely upon and I'd like to read some of them.

10     Paragraph 115 is referred to in their answer in paragraph 23.  "During

11     the session of the Bosnian Serb Assembly held on February 25, 1992, the

12     accused told the deputies that the Serb people had two options before

13     them; namely, to fight by political means or make the most out of the

14     present time as a first phase or to break off the talks and go for what

15     we have done over the centuries, win our own territory by force."

16             That's a reflection of his so-called agreeing to allow the

17     Muslims and the Croats to be forcibly removed.  All he is talking about

18     is, "We want to do it democratically or we should do it -- or we may be

19     stuck doing it by force."

20             The next references are on page -- it's paragraph 910.  As

21     Mr. Krajisnik recalled in his 1994 speech.  We're talking about after.

22     The battle of the republic began on 18 March 1992, the day on which the

23     Bosnian Serb leadership in the person of the accused made known to the

24     Assembly deputies its wish to pre-emptively take over territories in

25     Bosnia-Herzegovina while separating the Bosnian Serbs from the other two

Page 288

 1     ethnic groups.

 2             THE INTERPRETER:  Could the counsel please slow down.  Thank you.

 3             MR. N. DERSHOWITZ:  There's no citation to that.  And the next

 4     section says:  "The essence of the accused's message to the

 5     representatives of the Bosnian Serb people was that he wanted new facts

 6     created on the ground in order to strengthen the hand of the Bosnian Serb

 7     negotiators of whom himself and Karadzic were the most prominent.  The

 8     accused acknowledged that strengthening a negotiating position through

 9     the creation of facts which were the very subject of the negotiations was

10     not a fair method yet he insinuated better that the Serbs be unfair to

11     the Muslims than vice versa.  The government says the March 18th speech

12     was a call to arms."

13             It was not a call to arms.  What it was was an indication that

14     what you do is if you want to set up a plan, it had been proposed

15     internationally, the Muslims had rejected it at that point.  He wanted to

16     implement that plan at that point in time by having municipal governments

17     in place so that they can run that part of Bosnia-Herzegovina.  When

18     Bosnia and Herzegovina announced publicly and was -- that it was

19     withdrawing from Yugoslavia, and it was determined that it would be

20     recognised, the desire was to have an area as had been negotiated and

21     discussed, an area within the larger Bosnia-Herzegovina which had --

22     which was mostly Serbian, which had a government in place to address the

23     concerns of the Serbians, and then what you do is you have the entities

24     as they had had and as they now have, the different entities joining

25     together in a constitutional format in order to proceed.

Page 289

 1             Page -- paragraph 923 is the same.  Paragraphs 1003 -- I'd like

 2     to read all of them, but I don't think that that's a valuable use of

 3     time.  They cite at 1003 which to some extent is viewed as the most

 4     critical of their paragraphs and it says:  "At the Assembly session of

 5     July 25, 1992, the accused asserted that the takeover of the territory to

 6     date had been insufficient.  The people created the borders and we have

 7     to agree here today on territory that are not under our control right now

 8     but to which we claim rights due to them being ethnic territories.  We

 9     then stretch the desired extent," and then it gives the boundaries as to

10     which they are seeking.

11             Again, it's a political assertion of what is desirable under the

12     circumstances.

13             And the final cite is to paragraph 1015.  "Other events also drew

14     the accused away from Pale," and then it goes on to describe a statement

15     that he made that all Serb patriots will have the same emblem, the Serb

16     tricolours, as if that is a call to arms.

17             Now, what I think is significant is that at least as the Chamber

18     made the determination, and this Chamber has used similar language too,

19     in the Brdjanin decision, this Court said:  "Where convictions under the

20     first category of JCE are concerned, the accused must both intend the

21     commission of the crime and intend to participate in a common plan aimed

22     at its commission."

23             With all due respect, I think this Chamber said it backwards.

24     What I mean by that is first you have to have the joint criminal

25     enterprise intending to carry out the acts to further the joint criminal

Page 290

 1     enterprise.  So first you have the joint criminal enterprise, and then

 2     you have the acts in furtherance of the joint criminal enterprise.

 3             Having said that, a decision -- the court below said we first

 4     have to find out when we had the joint criminal enterprise and when he

 5     was a party to that joint criminal enterprise.  The date that was

 6     selected was an April of 1992 date, and the only things that occurred

 7     prior to that are all of these political statements.  To the extent that

 8     the government -- the Prosecutors are suggesting that he gained knowledge

 9     later, which we both reject factual and legally, whether simply having

10     gained knowledge is sufficient.  But assuming for the moment that he

11     gained the knowledge and therefore at that point he joined the JCE, the

12     question is when?  He would then not be responsible for the

13     implementation of the plan prior to his joining.  You do not apply it

14     retroactively.  So that, for example, if an event occurred in April but

15     he didn't have knowledge of the JCE until July, he would not be under the

16     JCE doctrine responsible for what occurred in April, May, June prior to

17     the time when he became a member.

18             So you have a decision here that April is the critical date, and

19     I suggest there is nothing on the April date of -- there's nothing by the

20     date when the claim and the decision was made that he was a member which

21     supports that conclusion, and the knowledge later is insufficient.  And

22     even if that works, you still need a determination of when, and then what

23     acts he's responsible for thereafter.  The decision is blank on that

24     because it decided the April date, which I suggest is inappropriate.

25             Let me just touch for one minute on some of the questions with

Page 291

 1     respect to linkage.  Two points I wanted to make.  The first is that the

 2     Prosecutor makes it sound as if Chambers below followed Brdjanin.  As you

 3     know, the Brdjanin came down well after the decision below, so it clearly

 4     was not following and intending to comply with this Court's decision,

 5     which I know is over at least one Justice's dissent.

 6             The second is that I tried, and I have not been able to do this

 7     as thoroughly as I would have liked over the break, but having listened

 8     to the listing provided by the Prosecutor, I don't believe any of those

 9     people by name are listed in the indictment.  You have such a vast array

10     of entities listed in the indictment that it then becomes easy for them

11     to say anyone who we can show committed the war crimes, since we said

12     it's the army or we said it's the municipal governments or we said it's

13     the Crisis Committee, whatever they say it was since they've listed that

14     in the indictment, they simply pluck that name out.  They say this person

15     committed a war crime.  Therefore, this person was a member of the JCE.

16             If they cannot find the name to pluck out, they simply say that

17     person was acting pursuant to the military, pursuant to the -- you know,

18     the gangs that were roving, pursuant to anything they want.  It all gets

19     lumped in, and therefore they have satisfied the linkage.  And I've just

20     re-read parts of Brdjanin, and I don't believe for one second that the

21     decision intended that result.  It was being quite specific in talking

22     about, sure, you can retain someone as your instrument to carry out

23     the -- your objective as part of the JCE, not working the other way of

24     saying anyone who committed a war crime, now we have to do -- trace it

25     backwards, which is what they are attempting do now.

Page 292

 1             And with all due respect, it's a backward process.  They

 2     shouldn't be coming in here today trying to justify the decision and the

 3     indictment by looking through the mass of evidence to see if they can

 4     support and then scratching out some that they can't support and doing it

 5     that way.

 6             Thank you.  Let me turn over the floor.  Thank you.

 7             MR. A. DERSHOWITZ:  Thank you, Your Honours.

 8             THE INTERPRETER:  Microphone, please.

 9             MR. A. DERSHOWITZ:  I would like to respond to first Ms. Goy and

10     then Mr. Kremer.  Ms. Goy correctly points out a distinction between the

11     actus reus on the one hand and the contribution on the other, but that

12     distinction disappears in this case, because all of the evidence that

13     goes to proving or trying to prove that he was a member of the JCE is

14     exactly the same evidence as his contribution.  They are his political

15     activities and his speech.  There is no separate activity that is

16     evidence of joining and not evidence of his significant contribution or

17     vice versa.

18             In other words, what they're doing is they're counting twice, and

19     what they're essentially arguing is that political speech can be both the

20     only evidence that he joined a JCE and also the only evidence of his

21     substantial contribution, and they can't point to a single instance of a

22     speech pursuant to the question of Judges that would be a criminal speech

23     or a speech involving crime.  In fact, the fact that they had to invoke

24     one speech that's not even referred to in the transcript, in the

25     judgement itself, shows that there are no speeches that they can really

Page 293

 1     find, no speeches that are referred to, and there are dozens and dozens

 2     and dozens of speeches referred to in the judgement, and they don't point

 3     to a single speech referred to in the judgement as evidence of criminal

 4     conduct and the only one they find is taken out of context, was never

 5     seen by the defendant and is only in an appendix to the opinion.

 6             They acknowledge that the vast majority of crimes were committed

 7     by non-members, which is really a response to the question put by one of

 8     the justices.  In the event that there isn't sufficient linkage, it

 9     really means the whole conviction has to go.  If the vast majority of the

10     crimes were committed by non-members, you can't save the conviction

11     because of spill-over jurisprudence just because there were some crimes

12     perhaps committed by members.  And as my brother pointed out, members who

13     became members only upon committing the crimes.  They were not named as

14     members previously which really goes to the essence of what Kremer's

15     argument was.

16             Mr. Kremer very poignantly, with tears in my eyes and I'm sure in

17     the Court's eyes, went over these horrible cases of rape and of rape in

18     front of family members and killing of children and all these incredibly

19     horrible acts that took place but never pointed to whether or not any of

20     those acts were intended by the defendant, whether they were part of a

21     later agreement by the defendant, whether they were predictable,

22     foreseeable under stage 3.  There's simply no evidence that the defendant

23     here ever learned of these acts until after he heard the transcript of

24     the trial itself.

25             So the catalogue of terrible acts may help to explain why there

Page 294

 1     is a prosecution here and why there are so many people who would like to

 2     see this prosecution affirmed, but it bears no relationship, because

 3     what's missing -- the missing link in this case is any linkage between

 4     the defendant himself and the acts committed by the people in the field.

 5     What conceivable benefit -- let's assume there's a goal to have some kind

 6     of separation or ethnic purity.  How is that served by, just to be brutal

 7     and gruesome to quote from the government, having somebody have to eat

 8     the body parts of somebody else or somebody engage in the rape of

 9     children, all these kinds of activities?  They are plainly not intended

10     or foreseeable.  Yes, every war, almost every war has brutality that goes

11     with it.  That doesn't make every waging of a war a war crime.

12             Mr. Kremer describes the group as something that Mr. Krajisnik

13     joined, and he should have known what he was joining because of the other

14     members of the group.  You know, it sounds almost as if he's applying for

15     membership in a club.  That's not the way it worked.  He didn't join.  He

16     didn't come in one day and get initiated into the Mafia by having a

17     pinprick in his finger.  He didn't join the Ku Klux Klan.  He didn't join

18     the Nazi party or the Gestapo.  He didn't join anything.  The Court

19     imposed on him a conceptual framework saying that over time, without

20     specifying exactly when, he should be deemed to have been part of, not

21     that he joined.  And it also makes it sound, when you here the

22     government's presentation or the Prosecution's presentation, like he

23     exercised control over those who committed the crimes.  But there is an

24     explicit finding by the Court on page 402 that he did not exercise

25     effective control at any point in time over these activities.

Page 295

 1             Now, the Prosecution cites some reference to some War Commissions

 2     that were appointed late in the process, but if one goes and reads the

 3     description of the War Commissions, one finds they were a one-way

 4     process; that is, their only task was to report the work to other members

 5     of the Presidency.  Put another way, the information all came back to

 6     them.  They had no authority to direct activities.  At worst, this would

 7     go to the issue of knowledge and mens rea.  It doesn't in any way go to

 8     the issue of actus reus, because according to the judgement itself, it

 9     was a one-way information flow.

10             The other point cited by the Prosecution is that the defendant

11     here may have appointed one or two commissioners, but without any further

12     information, who were these commissioners, would he have known in

13     advance, did these commissioners in fact commit any crimes, the very fact

14     that he may have had some responsibility for appointing commissioners in

15     no way, again, goes to the actus reus, particularly in light of the

16     finding of the Court that he exercised no control.  Therefore, the

17     Prosecution is led, finally, to conclude that the defendant, and I'm

18     quoting from them, "was in the company of," "in the company of," and then

19     it points to members of SDS.  Not even in the company of any of the

20     criminals.  And if that's not guilt by association, I don't know what is.

21     In the company of.  Not even a description of what happened while they

22     were in the company of.  And then:  "These leaders use their men to

23     commit crimes."  But there's into evidence linking this defendant to any

24     of the people who committed any of the crimes.  He didn't know these

25     people.  He had no association with them.

Page 296

 1             Mr. Kremer correctly points out this is not a case about hate

 2     speech, but speech is the central evidence, and it doesn't even rise to

 3     the level of hate speech.  We're talking about political speech.  We're

 4     talking about what the Court acknowledges as political deftness, of using

 5     his political savvy, all in the interest of trying to get the best

 6     possible deal he could for his constituency.  And he did get that deal.

 7     Ultimately, he got a deal through the Dayton Accords and that's what he

 8     is responsible for.  He is responsible for the negotiation.  Does his

 9     negotiation position strengthen with developments on the ground?  Of

10     course, every negotiator understands that.  And the point about pure

11     areas as was explained bears no relationship.  Not only that, but it

12     couldn't be an incitement speech because as the Prosecution concedes it

13     was stated only in front of a small number of people as part of a speech

14     relating to why the constitution should be ratified and why the extremist

15     Bosnian view should be rejected.  The pure areas were eventually achieved

16     by diplomacy.

17             Finally, because I know because I'm running out of time and I

18     would hope to invite any further questions, Mr. Kremer after a

19     brilliantly evocative statement of all the crimes again which caused

20     tremendous compassion, then said that these things must be "looked at

21     from the point of view of the victims."  And the mens rea and the actus

22     reus have to be looked at not from the point of view of the defendant but

23     the point of view of the victims.  With all due respect, I beg to differ.

24     This is a criminal case.  Now, obviously the victims' perspective helped

25     frame the jurisdiction of this court and explained the reasons why this

Page 297

 1     court has been set up to do its very important duty, but when it comes to

 2     deciding the guilt of the defendant, it must be viewed from the

 3     perspective of what the defendant knew, when he knew it, what did he do,

 4     when did he do it, what is the evidence of an agreement.  It must be

 5     looked at through the prism of the defendant's actions and through the

 6     prism of the defendant's state of mind.

 7             And when looked at that way, these horrible, horrible crimes must

 8     be punished and have been punished and will be punished, but they must be

 9     punished by punishing the right person in the right proportion to what

10     that person did.  And the idea that, as Ms. Goy put it, his role may have

11     been central, those are quotes, his role may have been crucial, but they

12     were political:  "His role was political.  It may have been crucial and

13     central to achieving the overall political result that was sought in this

14     case by political means."  But if one goes through all of the speeches as

15     we have gone through, there is never a call to arms.  There is a call to

16     disarmament.  There is never a call to violence.  There is a call to

17     constitutionalism.  There is never a call for ethnic cleansing.  There is

18     a call for compromise.  There is never a call for a war crime.  There is

19     a call to avoid war.  And the implications of an affirmance of this

20     conviction would be that if a political figure seeking peace is in a

21     troubled world where there is war and where there are war crimes being

22     committed, he may not remain on and engage in his political activities,

23     political activities which may be essential to resolving the dispute

24     peacefully.

25             Mr. Krajisnik could have been a man of lack courage and have left

Page 298

 1     the country, as many did.  He could have remained silent in the face of

 2     what was going on.  He did not do that.  He continued his political

 3     activities and it's for continuing his political activities that he has

 4     been prosecuted and sentenced to life imprisonment, essentially, for a

 5     man his age.

 6             So what we urge the Court to do and we know the Court will do it,

 7     is to please read as thoroughly as possible all the speeches, all the

 8     allegations and to make its own conclusion and draw its own inferences

 9     and to apply the standards that we have suggested that when there are

10     doubts they must be resolved in favour of political aspects of speech and

11     that without a finding of criminal conduct, without a finding of criminal

12     actions this defendant cannot stand convicted of these serious war

13     crimes.

14             Thank you, Your Honours.  If there are any questions, I'd be

15     happy to respond to them now or at any time during the proceedings.

16     Thank you very much, Your Honours.

17             JUDGE POCAR:  Thank you.  No questions.

18             So this concludes Mr. Krajisnik's appeal.  We move on now to the

19     amicus curiae appeal, and I will give the floor to the amicus curiae for

20     half an hour for his submission.

21             MR. NICHOLLS:  Mr. President, may I just ask the Tribunal to go

22     into private session for a brief moment.

23             JUDGE POCAR:  Sure.

24             MR. NICHOLLS:  Mr. President, you will --

25             JUDGE POCAR:  Just a second.

Page 299

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Page 300

 1   (redacted)

 2                           [Open session]

 3             THE REGISTRAR:  Your Honours, we are back in open session.

 4             MR. NICHOLLS:  Your Honour, I propose firstly to address the

 5     issue of fair trial on which I expect to spend about 20 minutes and then

 6     to follow shortly on the issue of JCE for approximately 10 minutes.

 7     Because of time constraints, I shall not be addressing --

 8             JUDGE POCAR:  Judge Meron.

 9             JUDGE MERON:  President, since the time of amicus is going to be

10     fairly limited, with your permission could I pose what for me is a

11     critical issue so that he would be able to address it in his argument?

12     Thank you, President.

13             JUDGE POCAR:  Yes, proceed.

14             JUDGE MERON:  You will discuss, I know from what we said, the

15     competency claims.  In your brief you asserted regarding trial counsel to

16     Mr. Krajisnik, especially in light of the additional evidence and I will

17     not refer to that.  The specific point I have is this one:  In your brief

18     you noted that Mr. Stewart, in February 2005, readily admitted in court

19     that he had read no more than 15 per cent of the relevant documents.

20     Nonetheless, the Trial Chamber denied the motion for adjournment and the

21     Appeals Chamber affirmed.  In light of those decisions, is your argument

22     about Mr. Stewart's level of preparations in a way settled or not, and is

23     it your argument that taken together the totality of Defence counsel's

24     actions and the Trial Chamber decisions in essence deprived the appellant

25     of effective legal assistance?  Thank you.

Page 301

 1             MR. NICHOLLS:  Your Honour, may I just say straight away that the

 2     answer to your second question is yes, that the Chamber has to look at

 3     the totality of the evidence, and it has to look at the evidence as it is

 4     at the end of the trial.  The Chamber can look at the matter with

 5     hindsight and, as in all manners of this kind, should look at the

 6     evidence as a whole.  I hope shortly that answers the question at this

 7     stage.

 8             As I was saying, I propose to speak about fair trial for a period

 9     of about 20 minutes, then 10 minutes on JCE, and then subsequently in

10     reply, Mr. Jones will be able to take up other matters on JCE and there's

11     an issue of deportation about which we have informed the Prosecution.

12             I turn then firstly to fair trial.

13             As a defendant before the Tribunal and as a participant in the

14     Tribunal's legal aid programme, Mr. Krajisnik had a right to fair trial,

15     which includes the right to the effective assistance of counsel.

16     Although the right of counsel is only one of a defendant's minimum

17     guarantees, it is perhaps the clearest illustration of their

18     interdependence, because where a defendant exercises the right to

19     counsel, counsel becomes, in effect, the facilitator of all other

20     guarantees.

21             The right to disclosure, to cross-examine, to present evidence,

22     the right to adequate time and resources are rendered worthless if

23     counsel does not exercise his functions effectively.  Regrettably, in our

24     submission, that is what happened to Mr. Krajisnik.

25             Mr. Krajisnik was originally represented at the pre-trial stage

Page 302

 1     by Mr. Brashich, an attorney from New York, and later, mainly in trial,

 2     by Mr. Stewart, a Queen's Counsel from England.  It is our submission

 3     that both of them, individually and cumulatively, provided grossly

 4     ineffective assistance and the trial was rendered systemically unfair.

 5             I deal first with Mr. Brashich.  Mr. Brashich was Mr. Krajisnik's

 6     lead counsel for just over two years.  He was removed by the Registry ten

 7     days before the trial was due to commence for failing to disclose that

 8     he'd been suspended from practice.  He had eight prior admonitions for

 9     professional misconduct, mainly for charging excessive fees.  In the 25

10     months that he was lead counsel, his team billed 26.500 hours of legal

11     work, the equivalent of one person working a 40-hour week for 13 years,

12     and it cost the Tribunal $1.5 million.

13             In spite of this, he produced no useful work product.  On the

14     12th of May, 2003, following his removal as counsel, he had the audacity

15     to tell Judge Orie that most of the preparation he had done was,

16     unfortunately, locked in his brain.

17             Mr. Stewart was assigned as lead counsel in July 2003, and a

18     target trial date was fixed for the 2nd of February, 2004.  When

19     Mr. Stewart asked Mr. Brashich for his work product, Mr. Brashich

20     pretended not to understand what he meant.  When two and a half months

21     before the trial Mr. Stewart finally received the full case papers, many

22     of them had the seals intact.  They were, according to Mr. Stewart, a

23     complete shambles and an absolute mess.  Such work product as emerged

24     was, according to Mr. Stewart, trivial in amount and made no significant

25     contribution to the preparation for trial.

Page 303

 1             It is axiomatic that the main work of an advocate, especially in

 2     complex cases, is undertaken before the trial commences.  Pre-trial

 3     preparation is critical to an effective defence.  There can be no doubt

 4     that Mr. Brashich's failures to disclose his suspension, hand over the

 5     case papers promptly, provide a well-ordered work product violated his

 6     duties of competence and diligence under the Tribunal's Code of

 7     Professional Conduct.  The Prosecution has, as I understand it, not

 8     disputed that conclusion.

 9             The result of Mr. Brashich's misconduct created -- as a result of

10     Mr. Brashich's misconduct, a situation of unparalleled seriousness had

11     arisen in what was until then, barring Milosevic, the Tribunal's most

12     complex trial.  Unless Mr. Stewart promptly and fully informed the

13     Trial Chamber of the gravity of the situation and the Chamber allowed his

14     team sufficient pre-trial time to prepare a defence, Mr. Krajisnik had no

15     prospect of a fair trial.

16             It is manifestly clear that neither happened.  Mr. Stewart failed

17     to apply for a pre-trial adjournment in spite of advice from experienced

18     co-counsel referred to in our brief at paragraph 35.

19             When five months into the trial and struggling for survival

20     Mr. Stewart applied for a substantial adjournment, it was too late.  His

21     team was drowning in a pile of papers he'd still not been able to sort

22     out, let alone adequately review, let alone read.  In desperation he

23     confessed, "I should have brought this very specifically to the attention

24     of the Chamber a long time ago, and I wish I had, but I've done today,

25     and the Chamber has to look at it now, in the circumstances now, and we

Page 304

 1     do need time."

 2             As amicus, with a duty to protect Mr. Krajisnik's interest, we

 3     have considered carefully whether Mr. Stewart was grossly ineffective as

 4     counsel.  Such allegations are not easily made, especially against

 5     advocates of his standing.

 6             The Appeals Chamber laid down in November last year in the

 7     Barayagwiza case the test to be applied where an appellant alleges

 8     ineffective assistance of counsel.  At paragraph 131 of the judgement it

 9     said:  "An appellant must establish that his counsel's incompetence was

10     so manifest as to oblige the trial to act -- Chamber to act.  He must

11     further demonstrate that the Trial Chamber's failure to intervene

12     occasioned a miscarriage of justice."  There are thus three requirements,

13     manifest incompetence, the Chamber's failure to act, a miscarriage of

14     justice.

15             We have argued in our brief that as a matter of human rights law

16     it should be enough for an appellant to show that he was denied effective

17     assistance of counsel and thus denied his right to fair trial.  We submit

18     that all three requirements laid down in Barayagwiza are met.  The

19     incompetence of the Stewart team is manifest.  The Trial Chamber failed

20     to act, or at least act effectively, and it caused a miscarriage of

21     justice.

22             In our appeal brief, we set out in detail the reasons why we

23     submit Mr. Stewart's stewardship was manifestly incompetent.  He

24     commenced a trial grossly unprepared, not having read the papers, taken

25     adequate instructions, or conducted sufficient investigations in the

Page 305

 1     field.  He failed promptly to bring the severity of the situation to the

 2     Trial Chamber's attention by not fully acknowledging its seriousness and

 3     by failing to apply for a pre-trial adjournment.  He failed to utilise

 4     his pre-trial resources properly by employing insufficient staff and

 5     failing to give the case his full attention.  He systematically failed to

 6     appeal significant decisions which impacted significantly on the fairness

 7     of the trial.

 8             It should go without saying that counsel who commences a trial

 9     without reviewing the bulk of the disclosed papers, developing an

10     effective defence strategy, being in a position to cross-examine

11     witnesses adequately or adduce effective evidence is bound to be

12     ineffective.  If that is correct, a trial conducted in such circumstances

13     is unfair.

14             The fact that any case, let alone one of this complexity, should

15     come on for trial when there had been no effective trial -- pre-trial

16     preparation was bound to raise grave questions for the Trial Chamber.

17     Should it have given Mr. Stewart more time before the trial commenced?

18     Should it adjourn the trial until Mr. Stewart was properly prepared?

19     Should it try to salvage the trial by granting adjournments piecemeal

20     when Mr. Stewart requested?  More significantly, could mid-trial

21     adjournments ever make up for a lack of pre-trial preparation?

22             The Chamber was aware four days before the trial of Mr. Stewart's

23     difficulties on disclosure as set out in paragraphs 24 and 72 of our

24     brief which we urge the Chamber to read.  With the advantage of

25     hindsight, as I answered Judge Meron a moment or two ago, with the

Page 306

 1     advantage of hindsight and reviewing the fairness of the trial as a whole

 2     as required on appeal, it is our submission that the Trial Chamber failed

 3     in its responsibilities for ensuring a fair trial by failing to adjourn

 4     the trial at that stage.

 5             On the first day of the trial, the Chamber granted Mr. Stewart a

 6     month's adjournment so he could prepare cross-examination of the first

 7     Prosecution witness.  In the following 12 months, there were five more

 8     short adjournments.  The Chamber refused two motions for substantial

 9     adjournments, one of which was upheld on appeal.

10             Thirteen months into the trial, however, referring to the tens of

11     thousands of pages of documents in his office, Mr. Stewart told the

12     Chamber that his team had read no more than 15 per cent of them.  "I

13     haven't read many of them.  I don't even know what they are.  I don't

14     have enough B/C/S resources to find out what they are.  It is absolutely

15     impossible.  The position is hopeless."

16             His case manager had left.  His counsel had -- co-counsel had

17     given notice because her cross-examination was hampered by not having the

18     time and resources to read and analyse Prosecution documents.  Finally,

19     she left because, as she said, they could not provide an effective

20     defence in the time that has been available and all the implications that

21     that carries for a fair trial for Mr. Krajisnik.

22             Mr. Krajisnik was remarkably patient.  Eventually he requested

23     equivocally, not without surprise, to self-represent, because he said,

24     self-representation could not make it any worse.  The Chamber allowed him

25     to supplement Mr. Stewart's cross-examination by his own efforts with, as

Page 307

 1     Mr. Stewart said, disastrous results.  Mr. Stewart and his team

 2     definitely thought Mr. Krajisnik was prejudiced.

 3             At the defence stage, Judge Orie, though originally not doubting

 4     Mr. Stewart's competence, castigated him for failing to meet deadlines,

 5     described his team's work product as seriously deficient and expressed

 6     grave concern at their failure to identify expert witnesses.

 7             The Trial Chamber, though doing its best to salvage a trial which

 8     should never have commenced, failed in our submission in its

 9     responsibility for ensuring fair trial by granting only periodic

10     adjournments when it was obvious to everyone that the Stewart team was

11     manifestly incompetent.  Its lack of preparation had affected the whole

12     trial process.

13             The Prosecution claim that Mr. Krajisnik has failed to establish

14     he was prejudiced.  The Chamber will recall that I requested that my

15     remit as amicus should be expanded to include the appointment of an

16     independent investigator into the deficiencies of Mr. Stewart's team.

17     The request was denied.  The burden of establishing prejudice has

18     therefore fallen on Mr. Krajisnik himself, and he has filed a notice to

19     admit additional evidence which he believes would have assisted his

20     defence.

21             The Chamber will ask whether Mr. Stewart's refusal was a

22     responsible strategic decision or, as Mr. Stewart said, because of lack

23     of time.  If it was for lack of time, was the Trial Chamber failing in

24     its duty to ensure a fair trial?

25             In a leadership case of this scale, it was essential to identify

Page 308

 1     and utilise expert testimony on relevant military, political,

 2     demographic, and constitutional issues.  In direct contradiction to

 3     Mr. Krajisnik's entreaties, Mr. Stewart called no expert witnesses to

 4     rebut the evidence of the experts on whom the Prosecution replied to

 5     establish that Mr. Krajisnik, alongside Mr. Karadzic, was at the apex of

 6     power in the Bosnian Serb republic.  The wrongful omission of expert

 7     evidence in those circumstances deprived Mr. Krajisnik of an opportunity

 8     to establish the parameters of his constitutional role and authority in

 9     day-to-day political and military affairs.  The Trial Chamber's findings

10     on Mr. Krajisnik's individual responsibility may well have been very

11     different if he'd been able to present expert evidence on this issue.

12             I referred when I began to the interdependence of fair trial

13     guarantees, that the minimal rights to disclosure, to cross-examine, to

14     give evidence and obtain the attendance of witnesses are worthless if

15     counsel cannot exercise his functions effectively.

16             In our submission, it was manifest that the Stewart team's lack

17     of pre-trial preparation not only placed the trial at risk but on

18     examining its history, as the Chamber will examine it now, made a fair

19     trial impossible.  Justice Robert Jackson said of the Nuremberg trials,

20     "We must never forget that the record on which we judge these defendants

21     today is the record on which history will judge us tomorrow.  To pass

22     these defendants a poison chalice is to put it to our own lips as well."

23             The Brashich scandal, the ensuing ineffective representation of

24     the Stewart team, and the failure of the Trial Chamber to act

25     effectively, in our submission denied Mr. Krajisnik a fair trial.

Page 309

 1             Your Honours, those are my submissions on that first issue.  I

 2     pass very, very shortly to what I have to say about JCE.

 3             Firstly, contrary to the Prosecution's submission, we submit it's

 4     clear from the last sentence at paragraph 1098 of the judgement that the

 5     Trial Chamber convicted Mr. Krajisnik of JCE I, not JCE III.

 6             Secondly, as to JCE III, the Trial Chamber never explicitly found

 7     Mr. Krajisnik guilty of that, nor did it specifically find that the new

 8     crimes were foreseeable consequences of the original crimes.  The mere

 9     fact that a person in a leadership position knows that if war comes it

10     will lead to bloodshed is insufficient to establish JCE III liability.

11     Unfortunately, all wars entail bloodshed.

12             The Chamber's findings on JCE I are flawed in our submission

13     because they acquaint knowledge of the new crimes with acceptance and

14     acceptance with intent.  This dilutes the requirement of mens rea.

15             The Chamber said at paragraph 1098:  "With acceptance of the

16     actual commission of new types of crime and continued contribution to the

17     objective comes intent.  On this basis, if Mr. Krajisnik became informed

18     of the new crimes, for example unlawful detention, sexual violence,

19     murder of civilians, and nonetheless continued with the common plan, then

20     he accepted those crimes and with acceptance comes intent."

21             In our submission that is not good enough.  For example, two men

22     agree to burgle a house.  During the course of the burglary one of them,

23     unknown to the other, shoots the householder.  If the other burglar,

24     knowing of the shooting carries on with the burglary, the fact that he

25     knew of the shooting and continued with the common plan means that he

Page 310

 1     intended the killing.  That can't be correct.

 2             Another reason why the Chamber's finding on JCE I is flawed is it

 3     imputes crimes to Mr. Krajisnik without, as the Chamber has recognised,

 4     establishing a link between the perpetrators and Mr. Krajisnik or another

 5     member of the JCE.  In our submission, the Chamber failed to make crucial

 6     findings on imputation of crimes committed by JCE members because it

 7     failed to go through the required process of applying the law to the

 8     evidence and satisfying itself that each of the crimes of which

 9     Mr. Krajisnik was convicted could be imputed to at least one member of

10     the JCE.

11             On the Trial Chamber's analysis, the link was established by the

12     accused or the Bosnian Serb leadership being informed of crimes committed

13     by the direct perpetrators, but the Appeals Chamber has made it clear in

14     Brdjanin the link has to flow the other way, not from direct perpetrators

15     to a JCE member but from a JCE member to the direct perpetrators with a

16     JCE member using the direct perpetrators as tools or instruments to carry

17     out the common plan or ordering or instigating them to commit crimes.

18             We illustrated this in our brief at paragraph 152 with a diagram

19     showing how the Trial Chamber turned the correct JCE model on its head.

20     It's wrong, we say, because it creates too open-ended form of liability

21     whereby an accused becomes responsible for crimes committed by those with

22     whom he has no connection by virtue of him being -- becoming informed of

23     their crimes.

24             The Tribunal has repeatedly emphasised the injustice of holding

25     an accused responsible for a crime where the link is too remote or

Page 311

 1     tenuous both in the context of JCE and in the context of command

 2     responsibility.

 3             Thank you.

 4             JUDGE POCAR:  I thank you.  I see there are no questions.  I will

 5     give now the floor to the Prosecution for their response.

 6             MS. MARGETTS:  Thank you, Your Honours.  Good afternoon.  Ms. Goy

 7     and I will now present arguments in response to amicus curiae's appeal.

 8     First, I will address ground 1, subgrounds (a), (b), and (c), relating to

 9     fair trial and then Ms. Goy will argue ground 3 with respect to joint

10     criminal enterprise.

11             With respect to any grounds of appeal or arguments not addressed

12     today, of course we are relying on our written submissions set out in the

13     response brief and I now turn to ground 1.

14             This ground of appeal must fail because Mr. Krajisnik had a fair

15     trial.  The Trial Chamber at all times had a close eye on the proceedings

16     and ensured that the trial as a whole was fair.  The specific fair trial

17     guarantees set out in Article 21 of the statute were afforded to

18     Mr. Krajisnik.  In particular, he was represented by counsel at all times

19     and effectively communicated with his Defence.  He had a reasonable

20     opportunity to answer the charges against him.  He cross-examined

21     Prosecution witnesses through counsel and was allowed to put questions

22     himself.  He was able to put all relevant defence arguments before the

23     Court and to influence the outcome of the proceedings.  In particular, he

24     testified himself for 40 days, presenting his entire defence and

25     explaining his version of events.  He called 24 witnesses.  He filed a

Page 312

 1     detailed final trial brief and presented closing arguments through

 2     counsel.

 3             In addition, the Chamber ensured that Mr. Krajisnik had adequate

 4     time and facilities to prepare his defence.  The Chamber granted the

 5     Defence numerous adjournments throughout trial.  Thus the trial was fair.

 6             The sub-grounds (a), (b) and(c) must be dismissed because none of

 7     the alleged failings of former counsel constitute gross incompetence and

 8     Krajisnik was afforded a practical and effective defence.  He had

 9     adequate time and facilities and any restrictions imposed by the

10     Trial Chamber were within its discretion under its trial management

11     duties.

12             None of the alleged violations constitute a breach of Krajisnik's

13     fair trial rights resulting in actual prejudice.

14             I will now turn to subground (a) with respect to ineffective

15     assistance.

16             JUDGE POCAR:  Can you please slow down a bit for the translation.

17             MS. MARGETTS:  I apologise.  As has been held by the

18     Appeals Chamber in the Blagojevic case, paragraph 23 of the appeals

19     judgement, there is a strong presumption of competence of counsel which

20     can only be rebutted by evidence to the contrary.  An appellant must

21     among other things demonstrate gross incompetence.  This has not been

22     done.

23             As I have described to Your Honours, Krajisnik had a practical

24     and effective defence, had the opportunity to answer the charges and

25     present his defence through cross-examination, through his witnesses and

Page 313

 1     his testimony.  The Trial Chamber, after 18 months of trial, in its

 2     self-representation decision concluded that the Defence team was

 3     competent, dedicated, functioning and working with the accused.  This is

 4     paragraph 35 of the decision.

 5             The three individual examples of Chamber's criticism of counsel,

 6     which are listed in paragraph of amicus curiae reply, cannot undermine

 7     this overall evaluation of competence.  Indeed, the first example is a

 8     reference to Prosecution's submissions and the other two relate to

 9     inadequate 65 ter witness summaries.  Insufficient summaries do not

10     establish incompetence of counsel.  This issue was moreover resolved by

11     the Trial Chamber which instead of determining relevant evidence on the

12     basis of the summaries gave the Defence a general time-frame for its case

13     enabling them to choose their witnesses freely.  This can be found on

14     transcript page 18802.  Thus there was no prejudice.

15             Amicus curiae's other arguments equally cannot rebut the

16     presumption of competence.  The ineffective assistance claim against

17     Mr. Brashich failed.  Amicus curiae argues that Mr. Brashich's failures

18     contributed to inadequate time and facilities for the preparation of the

19     defence.  However, the Appeals Chamber already considered the impact of

20     Mr. Brashich's removal on adequate time of -- and facilities, including

21     his failure to hand over materials and his failure to provide work

22     product to new counsel.  Despite these failures, the Appeals Chamber

23     found no error in the Trial Chamber's conclusion that overall Krajisnik

24     had adequate time and facilities to prepare his defence.  Thus there can

25     be no impact of Brashich's failures on Krajisnik's fair trial.

Page 314

 1             There's also no reason to revisit this decision, because it was

 2     not established that replacement counsel, Mr. Stewart, was grossly

 3     incompetent.

 4             With respect to former counsel Mr. Stewart, amicus curiae simply

 5     disagrees with strategic decisions made at trial and attempts to show how

 6     in retrospect they may have been proven wrong.  As established by the

 7     Appeals Chamber in the Nikolic Rule 115 decision of 9 December 2004 in

 8     paragraph 37, this is insufficient to show gross negligence.

 9             I'd like to comment on some specific examples raised.

10             First, Krajisnik was able to challenge Trial Chamber decisions

11     before the Appeals Chamber.  Counsel indeed appealed the Chamber's second

12     adjournment decision and failed.  The mere listing of procedural and

13     discretionary decisions which counsel allegedly failed to appeal cannot

14     establish misconduct.  There is no indication of any potential error in

15     the Trial Chamber's decisions that could support the allegation that

16     counsel should have appealed them.

17             Second, Krajisnik called 24 witnesses in his defence and

18     testified for 40 days himself.  Now, no examples of alleged failures in

19     the selection of witnesses, save for the reference to expert testimony,

20     nor has it been shown how these failures contributed to the Chamber's

21     assessment of Krajisnik's low credibility.

22             The decision not to call experts does not per se render the trial

23     unfair.  Mr. Stewart was reasonable to weigh the value of expert

24     testimony against that of other evidence.  Also, the evidence of the

25     Prosecution experts was tested in cross-examination and through witnesses

Page 315

 1     called by Mr. Krajisnik.  For example, government witnesses, Assembly

 2     witnesses, and army witnesses.

 3             There's further no specific example of the alleged failure to

 4     test the Prosecution evidence adequately.  For these reasons, the

 5     presumption of competence was not rebutted.  And before I move to the

 6     next subground I would like to briefly go into private session, Your

 7     Honours.

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16                           [Open session]

17             THE REGISTRAR:  Your Honours, we're back in open session.

18             MS. MARGETTS:  Thank you.  I now move to subground 1(b), relating

19     to adequate time and facilities.

20             Mr. Krajisnik was afforded the right to adequate time and

21     facilities.  Amicus curiae has not established that the time available

22     was inadequate nor that the alleged violations resulted in prejudice.  As

23     I have mentioned, the Chamber allowed the Defence numerous adjournments

24     right from the outset of trial and throughout.  The Trial Chamber sat

25     only 18 out of 48 days right after commencement of trial, and amicus

Page 317

 1     curiae has not explained why this additional time was manifestly

 2     inadequate due to the fact that it was allowed immediately after instead

 3     of before the beginning of trial.

 4             There were 141 non-sitting days.  This time-frame excluded

 5     recesses and holidays.  There was a block of seven free weeks when the

 6     Chamber was reconstituted.

 7             Considering these adjournments detailed in the second adjournment

 8     decision, the Appeals Chamber found there was no error in the Chamber's

 9     conclusion that there was adequate time and facilities.  There's nothing

10     subsequently that could call this decision into question.  After the

11     decision, the Chamber granted several adjournments in the Defence case.

12     For example, in November 2005, the Trial Chamber allowed the Defence an

13     extra seven weeks to prepare and present its case.  This is on trial

14     transcript 18801.

15             Extra time was also given for preparation and conduct of

16     Krajisnik's testimony.  Pages 18803 to 18804 and transcript page 24601.

17             Amicus curiae's argument under this subground must be dismissed

18     for these reasons, and I will now turn to subground 1(c), restrictions.

19             Amicus curiae alleges violations of the right to

20     cross-examination and to call witnesses which fall under the equality of

21     arms principle.  However, the requirements for such a challenge have not

22     been met because any restrictions imposed did not disadvantage

23     Mr. Krajisnik vis-a-vis the Prosecution, and he had a fair opportunity to

24     present his case.

25             The restrictions imposed were within the Chamber's discretion and

Page 318

 1     did not cause any prejudice.

 2             I will now go through some of them.

 3             The frequent adjournments indicate the Chamber's flexibility in

 4     time management.  The imposition of time limits such as the 60 per cent

 5     guideline for cross-examination was not strict and within the Chamber's

 6     discretion.  No error has been shown in the exercise of that discretion.

 7     Indeed the Chamber was flexible in responding to Defence requests.

 8     Cross-examination, for example, of witness Treanor was only started after

 9     a month.  This is transcript page 1833.

10             Amicus curiae also complains about the time allocated for the

11     Defence case but does not show any error in the exercise of the

12     discretion or how the allocated time caused prejudice.  The discretion of

13     the Trial Chamber is detailed in its decision of 16 August 2006.

14             Another issue, while the Chamber admitted municipality binders

15     across the bar table, it expressly restricted their size to a maximum of

16     ten documents.  This is on transcript pages 13386 to 13390.  Most of

17     these dossiers were even smaller.  Complaints regarding their volume must

18     fail.

19             There was also sufficient time for cross-examination of

20     Mrs. Plavsic.  Krajisnik was not at any disadvantage vis-a-vis the

21     Prosecution, who was allowed only half of the time for cross-examination.

22     Moreover, the need for cross-examination was reduced because Mrs. Plavsic

23     testified about very limited issues which were indicated to the parties

24     in advance.

25             Finally, under the subground, the Chamber did not commit any

Page 319

 1     error in denying Krajisnik's request for self-representation.  The

 2     Chamber was correct to consider a change from Defence counsel to

 3     self-representation in the middle of trial as a basis for restriction.

 4     It was held by the Appeals Chamber in the Seselj case on 20th of October,

 5     2006, that there may be circumstances justifying restrictions to be

 6     assessed on a case-by-case basis.

 7             Your Honours, in this case, in footnote 22 of the

 8     self-representation decision of 1st May 2007 acknowledged that timing of

 9     the request is a relevant factor.  Overall, no error has been shown, and

10     the trial as a whole was fair.  And this concludes my submissions on fair

11     trial unless Your Honours have any questions.

12             JUDGE POCAR:  Judge Shahabuddeen.

13             JUDGE SHAHABUDDEEN:  Counsel, I don't remember very well the

14     details, but sometime in 2005 Defence counsel applied for a six-month

15     adjournment, and one of the grounds he gave was that he had read only 15

16     per cent of the documentation.

17             Now, the Trial Chamber dismissed his application, and he appealed

18     to the Appeals Chamber, which in turn upheld the decision of the

19     Trial Chamber.

20             Is it competent for this Appeals Chamber to go behind the

21     decision of that Bench of the Appeals Chamber on the 15 per cent reading

22     of the relevant documentation?

23             MS. MARGETTS:  Your Honours, no.  There is -- in the Blagojevic

24     appeal it has been held that interlocutory appeals decisions address

25     issues with finality unless there are circumstances that would call this

Page 320

 1     decision into question subsequently are not considered or if there were

 2     any manifest errors that were not apparent at the time.

 3             Your Honours, in our submission there are no such circumstances

 4     that would allow for reconsideration of this appeals decision.

 5             JUDGE SHAHABUDDEEN:  Thank you.

 6             JUDGE POCAR:  Thank you.  Judge Meron.

 7             JUDGE MERON:  I thank you for your answer to my distinguished

 8     colleague Judge Shahabuddeen.  I have some problems with your answer.

 9             The decision of the Trial Chamber of 4th March 2005, I believe it

10     was, found that the level of preparation might have been higher, and then

11     the Appeals Chamber affirmed that decision, applying, as it was proper, a

12     very forgiving standard of review.  Namely, we were looking for abuse of

13     discretion.  But I would suggest to you that today we have quite a

14     different situation.

15             We reviewed the total corpus of evidence to determine whether

16     there was a violation of the appellant's fundamental right to counsel.

17     So the situation is quite different before us.

18             Now you have argued, counsel, that it was incumbent on

19     Mr. Krajisnik to point to a prejudice to him that would have resulted

20     from questions pertaining to representation.  Now, I have some problems

21     there too.  It seems to me that a conduct by counsel can be so egregious

22     that it would be presumptively grossly negligent, and that in such cases

23     the burden would shift to the Prosecution to demonstrate otherwise.

24             Thank you, President.

25             MS. MARGETTS:  Your Honours, in response to the first issue, our

Page 321

 1     position would be that, nevertheless, it has to be shown that these

 2     issues, these alleged violations, while even if they were considered of

 3     some -- of problematic or of some negligence, in hindsight they do not

 4     amount to gross incompetence.  And overall, having a look at the conduct

 5     of the trial overall and the Trial Chamber being in the best position to

 6     determine and having constantly acknowledged that it had a fair trial at

 7     its foremost consideration was in the best position to determine whether

 8     adequate time was given and whether counsel was sufficiently prepared to

 9     conduct his defence.  And we submit that it has been done, and there's no

10     reason to consider these individual violations, because overall the trial

11     was fair.

12             JUDGE POCAR:  Well, thank you.  You may go ahead.

13             MS. MARGETTS:  Thank you, Your Honours.

14             MS. GOY:  Good afternoon, Your Honours.  I will be addressing the

15     question that I've already spoken about this morning very briefly, the

16     question under which form of joint criminal enterprise Mr. Krajisnik was

17     convicted, JCE I or JCE III.  And I was wondering whether in light of the

18     questions Your Honours have posed, I would be allowed to get a couple of

19     more minutes to address this issue.

20             JUDGE POCAR:  Certainly a couple of minutes, fine.

21             MS. GOY:  Thank you very much.  I'll try to be brief.

22             The Trial Chamber convicted Mr. Krajisnik on the basis of JCE I

23     and JCE III.  Initially, only discriminatory forced transfer and

24     deportation were part of the common plan, whereas Krajisnik's liability

25     arose for JCE III under all the other crimes, extermination, murder,

Page 322

 1     persecution, based on the other acts than forced displacement.  And soon

 2     thereafter, these other crimes which the Chamber refers to as expanded

 3     crimes became part of the common purpose and thus the conviction arose

 4     under JCE I.  And although we agree that the Chamber could have been more

 5     explicit, I suggest to take Your Honours through the parts of the

 6     judgement that show that the Chamber did in fact make the necessary

 7     findings.  And I will address the two periods distinguished by the

 8     Chamber, the beginning of the implementation of the common purpose and

 9     the period thereafter.

10             Turning to the first period, the Trial Chamber found in

11     paragraphs 1097 and 1118 that initially discriminatory deportation and

12     forced transfer were included in the common purpose.  And for the

13     expanded crimes, liability arose under JCE III.  They were in this

14     initial period at least foreseeable consequences of the implementation of

15     the common plan and Krajisnik was aware of this possibility and willingly

16     took that risk.  Trial judgment paragraph 1099 confirms this.

17             And although there is no explicit finding of his responsibility

18     under JCE III in this initial period, a reading of the paragraphs 1096

19     through 1099, together with 1124 confirm this.

20             In 1124, the Trial Chamber finds that the accused's

21     responsibility arose with the crimes in Bijeljina, which includes

22     schedule incident A1.1, the killing of at least 48 civilians.  This means

23     that the Chamber found Krajisnik responsible for these killings although

24     it had determined that initially the common purpose was only deportation

25     and forced transfer.  And that the Trial Chamber considered the expanded

Page 323

 1     crimes initially as JCE III crimes is confirmed when one reads the

 2     sequence of paragraphs 1096 through 1099 together.

 3             In 1096, the Chamber raises the question of liability under

 4     JCE III and then determines in the following paragraph that initially the

 5     common purpose was limited to deportation and forced transfer, followed

 6     by trial judgement 98, which explains, as amicus curiae has just pointed

 7     out, the Trial Chamber saw that the common purpose expanded over time to

 8     include other crimes.

 9             1099 can then only mean that the other crimes initially fell

10     under JCE III.  1099 says, and I quote:  "Notwithstanding the above, even

11     before the Bosnian Serb takeovers began in April, the accused and

12     Karadzic were aware that the armed conflict would have devastating

13     consequences."

14             This paragraph thus includes the requirements for JCE liability

15     under the category 3, the awareness that the crimes including killing

16     were a foreseeable consequence and the -- of the implementation of

17     deportation and forced transfer and that the accused willingly took that

18     risk.

19             Turning to the second period after the initial phase.  During the

20     indictment period, all of the expanded crimes became JCE I crimes.  The

21     Trial Chamber found that in paragraph 1118.  And this happened very soon,

22     and I will explain in a minute our position that due to the reporting

23     practice, incidents that occurred a few days after the first of the

24     expanded crimes were part of the common purpose.  At the very least,

25     however, on the 12th of May when the strategic goals were proclaimed, all

Page 324

 1     of the crimes formed part of the common purpose.

 2             That all of the crimes became part of the common purpose is

 3     confirmed at the end of trial judgement 1119 when the Chamber said that

 4     Krajisnik had the mens rea for the crimes which the Chamber found to be

 5     committed.  And they became so due to the expansion of criminal means,

 6     through the commission of new types of crimes, no effective measures

 7     being taken, and the persistence of the implementation of the common

 8     plan.  And the Trial Chamber was entitled to infer the intent for JCE I

 9     crimes through these circumstances as the Appeals Chamber has frequently

10     confirmed, for example, in the Kvocka appeal judgement, paragraph 243,

11     that intent can be inferred from the circumstances.

12             The Chamber did not give specific dates when a particular crime

13     became a JCE I crime.  It referred to very soon.

14             The findings made in trial judgement 996 support that at least 12

15     May, they were included in the common plan.  And I quote from 996, the

16     second sentence:  "Takeovers, killings, detention, abuse, expulsion, and

17     appropriation and destruction of property had begun in the territories

18     claimed by the Bosnian Serbs well before the pronouncement of the

19     strategic goals on 12 May."  And the paragraph ends with:  "This was the

20     Bosnian leadership's goal and if there was any goal needed on 12 May, it

21     was the continued pursuit of the very same goal."

22             That in our position they can be JCE I crimes even earlier is a

23     few days after the first incident occurred.  Results from the fact that

24     the trial judgement, as obvious from footnote 2223, relied on the

25     reporting practice it had detailed in other parts of the judgement.  So

Page 325

 1     liability under JCE I arose for each type of these expanded crimes that

 2     happened a few days later.  For the gravest crime like murder, this

 3     included already the second incident.  And we have referred to this

 4     information flow in our brief in paragraphs 92 to 93 of the Prosecution

 5     response to amicus and the Prosecution response to Krajisnik, paragraphs

 6     213 through 228.  I would therefore just like to highlight the

 7     information about the first killings which occurred in Bijeljina on the

 8     1st or 2nd of April, 1992.

 9             Krajisnik and the rest of the leadership were informed already on

10     the 3rd of April.  I refer Your Honours to witness Bozidar Antic,

11     transcript page 18186 through 18187 and 18219.  The people in Zvornik

12     knew about them on 8 April, trial judgement 926.  And on 10 April, the

13     information was published in the newspaper.  P584 referred to in trial

14     judgement footnote 692.

15             These examples also show that the information flow was not

16     limited to the Pale leadership but also reached the rank and file of the

17     JCE component and the public at large.  Therefore, to conclude, the

18     Trial Chamber correctly convicted Krajisnik under JCE I and JCE III.

19     This concludes my submission and I thank Your Honour for the additional

20     time.

21             JUDGE POCAR:  Thank you.  I will now give the floor to the amicus

22     curiae for his reply.

23             MR. JONES:  Thank you.  I'm taking the next part of our

24     submissions.  I just did wonder whether there was the possibility of a

25     break at this stage.  I know there's something to do with tapes being

Page 326

 1     changed and interpreters.  I'm perfectly content to go ahead.

 2             JUDGE POCAR:  If you remain within the time as scheduled, that is

 3     15 minutes, we have the time to do it now before the break.

 4             MR. JONES:  I'm obliged and that's certainly my intention.

 5             Well, in the brief time remaining to me, I'm going to deal first

 6     with four short points on fair trial, then deportation, one short point,

 7     and then one or two points in rebuttal on JCE.

 8             Firstly with regard to fair trial, I would start by respectfully

 9     adopting the observation made by His Honour Judge Meron that the issue

10     has not been settled by the Trial Chamber or the Appeals Chamber's

11     decision of 2005.  Certainly the Trial Chamber and the Appeals Chamber

12     did not have all the facts before them that you have now, and therefore

13     in our submission you can revisit the issue.  You have vastly more

14     information now, for example, with respect to the lack of pre-trial

15     preparation and the Brashich team, and so if it's a question of applying

16     the Blagojevic test, then we say certainly there are circumstances which

17     call into question the 2005 decision.

18             Now, with respect to the Prosecution's response, they provide

19     initially at least, if you like, a litany of the fair trial guarantees

20     which Mr. Krajisnik enjoys.  He was able to cross-examine witnesses, et

21     cetera.  But if you can't adequately prepare, then it's something of a

22     charade.  It's like if you go to play a game of tennis and you find that

23     someone's removed the strings to your racket.  It still may be a game of

24     tennis but it will be a pretty poor spectacle.  And that's why the human

25     rights case law to which we referred in our brief emphasises that the

Page 327

 1     fair trial guarantees must be effective and that's what's key.

 2             In terms of strategic or tactical decisions, it's not a strategic

 3     decision to be hopelessly underprepared.  Mr. Stewart himself admitted

 4     that many of his decisions were not strategic or tactical.  It was simply

 5     because he did not have time, including the decision with respect to

 6     expert evidence.

 7             And thirdly I would observe, again by way of a metaphor, the

 8     difficulty of fixing a leaky boat at sea.  So adjournments during a trial

 9     can only afford so much relief and you can't fix a leaky boat when you're

10     in the middle of the ocean.

11             Now on deportation, as I said, we alerted the Prosecution that we

12     would make this point so I apologise for it not being a reply so much as

13     a point which we're making.  In ground 4 of our brief, we submit that the

14     Chamber erred when it convicted Mr. Krajisnik of deportation as a crime

15     against humanity under count 7.  Now the Prosecution partly concede the

16     point, or to a large extent they concede it, by saying yes, the

17     Trial Chamber did not carry out the case-by-case analysis of whether a de

18     facto border was crossed by those displaced.  So they concede that the

19     Chamber's findings on deportation were in error for a number of

20     municipalities.  But they seek to keep the conviction alive with respect

21     to one municipality, and that's Bijeljina, and ask you to affirm

22     Mr. Krajisnik's conviction on that basis.

23             Now, it relates solely to one piece of evidence of

24     Mr. Milorad Davidovic, and that's T14235 which is cited at footnote 700

25     of the Trial Chamber judgement.

Page 328

 1             Now, if you look at what Davidovic said on that page, he referred

 2     to displacements of Bosnian Muslims to "Hungary and the West," after he'd

 3     referred to displacement to Muslim controlled territory.  And this is all

 4     he said:  "Or else there were organised departures through Serbia to take

 5     people to Hungary and the West, and I can give you detailed information

 6     about that as well."  And that's all he said.

 7             So we'd ask you to note a number of points about this very meager

 8     piece of evidence.  First, Davidovic volunteered this information, and he

 9     volunteered to elaborate on it, but he wasn't asked to do so.

10             Second, you'll note the vagueness of this response, and

11     particularly the reference to "the West."  What is encompassed in the

12     West, and more importantly, if by the West we're talking about Western

13     Europe, perhaps even the USA, it's obvious that the Bosnian Serb

14     authorities would not be physically able to deport people to those

15     countries because, of course, they'd have to pass through lots of other

16     countries first.  And so there's a very important distinction to be made.

17     Refugees from the war in Bosnia ended up in all sorts of countries around

18     the world.  That doesn't mean they were deported to those countries any

19     more than during the Second World War refugees from Nazi Germany fled to

20     many countries but they weren't deported to those countries.  That's a

21     misconception.

22             Fourth, Davidovic referred to organised departures through

23     Serbia, but he didn't say who organised it or how.  And he certainly

24     didn't say that Mr. Krajisnik or anyone linked to him organised those

25     departures.

Page 329

 1             And finally, for deportation through Serbia, the Serbian

 2     authorities would have had to be complicit in the deportation.  It's

 3     their territory after all.  But the Trial Chamber didn't make any finding

 4     to that effect.  And in fact the Chamber confined the JCE to persons

 5     within the territory of Bosnia-Herzegovina, and you'll find that at

 6     paragraph 1087.  "The Chamber finds that the JCE, of which the accused

 7     was a member, consisted of persons situated throughout the territories of

 8     the Bosnian Serb republic."

 9             So the JCE, anyway, territorially doesn't extend to Serbia.

10             And finally while the Trial Chamber did refer to the transcript

11     of Davidovic, the page relied on by the Prosecution also refers to

12     internal displacements of Bosniaks to Brcko and other places.  So in our

13     submission, that one throwaway line of Davidovic is simply not enough to

14     form the sole basis for conviction of crimes against humanity,

15     deportation as a crime against humanity, and if that's right and if

16     you're with us on that, then the conviction under count 7 should be

17     quashed in its entirety, indeed has to be quashed in its entirety.

18             Now I recognise I probably have two minutes left, so on JCE I

19     would really just make a full bullet points.  There are really two

20     concerns for you, the Chamber, to address.  First, this linkage which is

21     required and the fact that the Trial Chamber -- the Trial Chamber's

22     approach is insufficient.  And secondly, you may feel that the

23     Appeals Chamber is not in a position to draw inferences from the

24     Trial record, and that's -- certainly those concerns have been raised by

25     at least two members of the Bench.

Page 330

 1             Now, we say the Prosecution response to both those concerns is

 2     unconvincing, especially the assertion that parts 2 and 3 of the

 3     judgement provide the necessary linkage.

 4             If I could summarise our response to Mr. Kremer's point this way:

 5     First, and we agree here with the submissions of Mr. Dershowitz,

 6     Mr. Kremer's repeated graphic evidence of the crime base and then simply

 7     asserts that those crimes were connected or controlled by the Bosnian

 8     Serb leadership or the Pale-based leadership component, but he fails to

 9     substantiate that latter point.

10             Secondly, this reference to paramilitary leaders, Arkan, Mauzer,

11     others, the so-called rank and file JCE members, who undoubtedly were

12     involved in terrible crimes doesn't provide that there was a common plan

13     between Mr. Krajisnik and them.  And I'd also adopt what the Dershowitz

14     brothers said about the need to independently identify who is a member of

15     the JCE without reference to any crimes committed by them.  Otherwise,

16     there's a circularity or a double counting.  The Prosecution and the

17     Chamber should be able to pluck someone from Bosnia, if you like, and say

18     is this person in the JCE or not?  And the answer to that question

19     shouldn't depend on whether they committed any crimes, otherwise you have

20     that circularity and we say the Chamber fell into that trap of having no

21     independent notion of a JCE member independent from the question of

22     whether they committed crimes, and there is that double counting.

23             And references to organisations and paramilitaries being under

24     the complete control of the Bosnian Serb leadership doesn't deal with the

25     Trial Chamber's finding at paragraph 1121 that Mr. Krajisnik didn't have

Page 331

 1     effective control over such people.

 2             So we -- we do agree -- adopt the submissions of Mr. Dershowitz

 3     that you take these crimes, a man being forced to watch his wife being

 4     raped, terrible crimes, but that illustrates in fact the over-broadness

 5     of JCE, because there's no suggestion that Mr. Krajisnik incited or

 6     instigated police officers or Red Berets to commit rape in a police

 7     station, and yet he's fixed with that terrible crime among many, many

 8     others, murders of people made to dig their own graves.  And doesn't that

 9     show how the JCE notion has become completely overextended.

10             And if I might just finally end on a point about JCE III.  The

11     Prosecution invites you to find that implicitly the Chamber found a

12     JCE III, but why on earth would they only do so implicitly.  The

13     Trial Chamber had only to say, "We find Mr. Krajisnik guilty in terms of

14     JCE III," or they could have used the catch phrase, if you like, "these

15     crimes were the natural and foreseeable consequence of the common plan."

16     That's all they had to do, and they didn't do it.  And so in our

17     submission, paragraph 1099 is far too broad to contain that implicit

18     finding as my learned friend, my learned colleague Mr. Nicholls pointed

19     out all war crimes -- sorry, all war entails terrible crimes.  But unless

20     you're confusing the crime of aggression with JCE, you can't simply say

21     that that foreseeability entails foreseeability and liability under

22     JCE III.

23             So unless I can assist you further, that would be our reply.

24             JUDGE POCAR:  I thank you, Mr. Jones.  This concludes the amicus

25     curiae appeal.

Page 332

 1             We break now for 15 minutes and reconvene at 5 past 5.00 to hear

 2     the Prosecution's appeal.

 3             The hearing is adjourned.

 4                           --- Recess taken at 4.48 p.m.

 5                           --- On resuming at 5.08 p.m.

 6             JUDGE POCAR:  We had a slightly longer break, and we resume the

 7     hearing with the Prosecution's appeal.  I give the floor to the

 8     Prosecution for their submissions for 20 minutes.  You have the floor,

 9     Mr. Kremer.

10             MR. KREMER:  Thank you, Mr. President.  The Prosecution appeals

11     the 27-year sentence imposed on Mr. Krajisnik as a result of his

12     conviction for the crimes that we've been talking about this morning and

13     part of the afternoon.  The Prosecution submits that the sentence is

14     entirely outside the proper range of discretion for a Trial Chamber

15     having regard to both the gravity of the crimes and the degree of

16     participation of the accused in the crimes and that the sentence cannot

17     be reconciled with the principles governing sentencing as expressed in

18     the Gacumbitsi Appeals Chamber judgement, paragraph 205.

19             We know from the discussions this morning that this case is about

20     a massive, widespread and systematic ethnic cleansing of a large part of

21     Bosnia-Herzegovina where 3.000 Muslims and Croats approximately were

22     killed through murder and extermination, where 100.000 Muslims and Croats

23     at least were forcibly displaced from a large part of Bosnia-Herzegovina

24     and where these Muslims before they were displaced or before they were

25     killed and even some Muslims and Croats who still remained were subject

Page 333

 1     to a persecutory campaign that was part of a systematic and widespread

 2     attack on this civilian population involving underlying acts of killing,

 3     cruel and inhumane treatment, physical or psychological abuse, sexual

 4     violence, unlawful detention, forced transfer and deportation, forced

 5     labour, intentional and wanton destruction of property and plunder.

 6             The Trial Chamber found at 1146 that:  "Countless stories of

 7     brutality and violence and deprivation resulted from these crimes.  These

 8     stories would not have been necessary if racial hatred and nationalism

 9     had not consumed Mr. Krajisnik and the other JCE members.  The Bosnian

10     Serb leadership and the rest of the JCE members commenced a persecutory

11     campaign that resembled how criminal states implement their campaigns of

12     terror.  First, Mr. Krajisnik and the Bosnian Serb leadership engendered

13     in the Bosnian Serbs fear and hate of others using a propaganda machine.

14     Fear and hate against the Muslims and Croats in order to win their

15     support and to create the condition to implement the criminal purpose."

16     Trial judgement 1121C.

17             Muslims and Croats were prevented from moving freely.  Their

18     houses were searched and their privacy violated.  Paragraph 784.  People

19     were fired from their jobs.  785.  And denied access to schools and

20     public services on the basis of their ethnicity.  786.

21             The persecutory campaign as affecting the individual Muslim or

22     Croat in a town, even not in detention, was striking.  Ahmed Hidic

23     described the situation in Bosanski Petrovac before he was driven out and

24     deprived of his properties.  He said:  "I was never in a detention camp

25     but the whole town of Bosanski Petrovac was like a big detention camp.

Page 334

 1     We could not leave and we were always afraid to go out.  There was so

 2     much killing going on around us and destruction of our houses and

 3     businesses.  The town was completely sealed off with check-points, and

 4     there was a curfew from sunset to sunrise.  There were night patrols, and

 5     we could not get food.  The electricity was cut and sometimes water was

 6     also disrupted."  P87, page 8.  And it's cited in footnote 953.

 7             Second, there was the takeover of the municipalities by force,

 8     and during the attack Muslims and Croats were killed and ill-treated.  In

 9     the end, the Bosnian Serb leadership held 35 municipalities in their

10     control.

11             Third, the persecutory campaign was expanded and more efficiently

12     implemented.  Muslims and Croats were arrested, beaten and killed.

13     Private houses, mosques and Catholic churches destroyed.  The goal was to

14     extinguish any memory of the Muslim and Croat presence.  The unbearable

15     living conditions imposed on Muslims and Croats made it impossible for

16     them to remain.  729.  They fled the region in huge numbers.  Their

17     exodus was often regulated and organised by a resettlement agency run by

18     the Bosnian Serb authorities.

19             In Banja Luka, a resettlement agency managed all aspects of

20     relocation.  Paragraph 392.  The Crisis Staff set the procedures for

21     departure and used public institutions to implement them.  Those who

22     wanted to flee had to file about 15 different documents to obtain what

23     they described as permission for resettlement.  The final insult to the

24     people being persecuted was that this ethnic cleansing bureaucracy

25     required each of them to pay a fee for every certificate.

Page 335

 1             To efficiently implement the ethnic cleansing, or as

 2     Mr. Krajisnik said "ethnic division," trial judgment 911 and 1097,

 3     thousands of Muslims and Croats were detained in more than 350 detention

 4     centres, often within public facilities.  Paragraph 810.

 5             Adil Draganovic describes his detention at Manjaca camp in

 6     Banja Luka.  "Every night, every day we were beaten, and that beating

 7     would then last for a half an hour, 45 minutes or an hour.  One was using

 8     a cable to beat, another a baton.  Two were using their boots, kicking us

 9     in the stomach, in the chest, in the mouth, and the others were beating

10     me at the same time.  Once you fall down, then they beat you in an even

11     worse way.  They would be kicking with the boots.  I don't know how I

12     survived that night."  Reference P519B and trial transcript 5009 to 510

13     cited in trial judgement 386, footnote 871.

14             He goes on to say:  "And then I can also remember permanent

15     verbal humiliation, so to speak.  They told us that we weren't a people

16     of any kind.  They said, 'What do you want?  Do you want a state?  You're

17     not going to have one.  You'll be like the Palestinians.  Look we Serbs,

18     we got our state.  We've got the Serbian Bosnia-Herzegovina.  You're

19     going to be killed, all of you here in the camp are going to be killed.'"

20             And how they made the people feel is best expressed in the

21     paragraph that follows.  "The humiliations took place in these barns

22     where we stayed and in which the conditions were totally inhumane.  We

23     were smaller than mice.  Our lives were not worth the life of a mouse."

24     P519C, transcript 5450 to 5452, trial judgement 386, footnote 871.

25             And he does say that this -- these conditions were so severe that

Page 336

 1     in the first month he lost 26 kilos.

 2             But this is just the tip of the iceberg, as it were, as to how

 3     brutal the conditions were.  Women, pregnant women, young girls, even as

 4     young as 13 years old, were raped on a regular basis while men were

 5     forced to engage in degrading sexual acts with each other.  Trial

 6     judgement 800 and 304.

 7             Around -- and just in terms of Mr. Krajisnik and his knowledge

 8     about what was going on, I refer you to paragraphs 1041, 1046 and 1047 as

 9     examples of Mandic's communications with -- Mandic, who is the Minister

10     of Justice and responsible for detention facilities, and his

11     communications with Mr. Krajisnik about really what was going on in the

12     detention facilities.

13             Around 3.000 Muslims and Croats were killed.  Large numbers while

14     in detention.  These killings took many forms, from shooting, beating to

15     death, suffocating, burning alive, being forced to jump off a bridge and

16     being shot in the water, digging one's grave before being shot or having

17     one's throat slit, being shot while performing forced labour or acting as

18     human shields, dying of heatstroke through lack of water.  Mass

19     executions and exterminations took place in 14 municipalities.  I refer

20     you to paragraph 663 and Exhibit P285A which is the -- a statement by a

21     witness describing the sheer horror of being shot and luckily not being

22     killed, then being put into a building which was set alight by accelerant

23     poured over the bodies, and he was the only fortunate person to escape.

24     The last person who was asked to set the bodies alight when he refused

25     was killed and his recollection of the pleading of this man not to be

Page 337

 1     shot was the following:  "The sound of his voice will stick in my mind

 2     forever.  They just shot him dead and added him to the pile of bodies."

 3             The Bosnian Serb campaign of terror and death caused the killing

 4     of 3.000 and the expulsion of more than a hundred thousand.  By the end

 5     of 1992, Krajisnik had achieved his personal and political goals through

 6     criminal means.  The region was cleansed of Muslims and Croats.  His

 7     obsession had become reality.  Paragraph 950.

 8             The ethnic composition of the region had been changed over the

 9     course of one year not through peaceful negotiation but through a massive

10     and systematic ethnic cleansing campaign.  Krajisnik could finally and

11     proudly explain on public television that what was being said, that we

12     are possessing the territories ethnically populated by other national

13     communities, that is not true.  Paragraph 1076.  At the time he said

14     that, he was right, but he omitted to say that only nine months before

15     the same territories were ethnically populated by the other national

16     communities.  Krajisnik and his fellow JCE members implemented a massive

17     criminal campaign using state structures.  They mobilised thousands of

18     Serbs serving within these structures to commit the crimes on the ground.

19             For the results of this ethnic cleansing campaign Krajisnik

20     deserves a life sentence.

21             This brings me to the second point and that is the role Krajisnik

22     played in the crimes.

23             Krajisnik was a key member of the joint criminal enterprise.  He

24     was, as the Trial Chamber found at paragraph 1119, one of the driving

25     forces behind it.  He was one of the leaders at the centre of power.

Page 338

 1     Paragraph 180.  He wanted the land ethnically pure so that he could

 2     finally claim that it belonged to his people.  Paragraph 1076.  He did

 3     not want to share land or power with other ethnic groups, and in order to

 4     achieve total Serb domination and statehood Krajisnik knew that it was

 5     necessary to push Muslims and Croats out by force.  Paragraph 1119.

 6             He accepted heavy human cost to achieve his political dream, the

 7     death and the destruction of thousands of lives and unfathomable human

 8     suffering.  111 -- 1119.  He intend the horror to take place and

 9     formulated, initiated, promoted, and developed this policy to advance the

10     criminal plan.  1121A.

11             While an ordinary human might expect a man of his power and

12     authority to prevent the crimes against the population, he proceeded

13     without pause.  Paragraph 1160.  Never did he express regret.  Paragraph

14     1115.  Krajisnik and Karadzic, two bodies and one soul.

15             Trobajevic, former deputy minister under Krajisnik, trial

16     transcript 11422, used that description to talk about how they ran the

17     Republika Srpska as a personal fief exercising direct influence at all

18     levels of Bosnian Serb affairs, paragraph 987, is how the Trial Chamber

19     summed up the evidence.

20             From this position, Krajisnik participated and promoted the

21     implementation of his plan.  1121A.  And the plan was implemented in all

22     its steps.  He directed the Bosnian Serb government and forces to

23     implement the criminal plan.  1121D.  As a senior political leader he

24     denied the reality and even provided misleading information about the

25     crimes to mislead the international community.  1121K.  He was at the

Page 339

 1     apex of power, at the apex of a state pyramid.  From his position he

 2     directed, encouraged, instigated the lower levels down to the bottom to

 3     implement the criminal plan.

 4             Krajisnik did not experience the horror he caused others.

 5     Krajisnik made the others experience the horror he wanted, horror that

 6     could have been avoided but horror that was undertaken in order to

 7     achieve an ethnically pure Bosnian Serb state.  Twenty-seven years of

 8     imprisonment is unreasonable for being one of the driving forces behind

 9     catastrophic events that resulted in so many killings and so many

10     expulsions.

11             The Prosecution accepts that the Trial Chamber took notice of the

12     principles governing sentencing and acknowledged that the gravity of the

13     crime is the primary factor to be taken into account.  However the

14     question is whether it gave them sufficient attention in determining the

15     sentence.  I refer you to Galic appeal judgement 442.

16             The contrast between the facts as found and sentence imposed is

17     striking and gives us the answer to this question.  The sentence imposed

18     cannot be reconciled with the principles.  It cannot be reconciled with

19     the principles of retribution because it does not make plain the

20     condemnation of the international community for this conduct.  It cannot

21     be reconciled with the principles of deterrence either.  Twenty-seven

22     years for a man who abused his position of power to implement a

23     prosecutorial campaign that changed the ethnic composition of

24     Bosnia-Herzegovina undermines respect for the international legal order.

25     In light of the fact as found by the Trial Chamber the sentence -- or

Page 340

 1     facts as found by the Trial Chamber, the sentence is manifestly

 2     inadequate.  If falls outside the range that was available to the Trial

 3     Chamber or to use the Appeals Chamber's words in Galic, it was taken from

 4     the wrong shelf.  I refer you to paragraph 455.

 5             In conclusion, it's our respectful submission that in light of

 6     the massive nature and gravity of the crimes and the crucial role played

 7     by Krajisnik, the only sentence that can be reconciled with the

 8     sentencing principles is life imprisonment.

 9             Thank you.

10             JUDGE POCAR:  I thank you, Mr. Kremer.

11             I will now give the floor to the Defence for the response.

12             MR. A. DERSHOWITZ:  Your Honour, I will respond only --

13             THE INTERPRETER:  Microphone, please.

14             MR. A. DERSHOWITZ:  -- to the joint criminal enterprise.

15             I plan to respond only to the points relating to the joint

16     criminal enterprise in five minutes and then have the defendant himself

17     respond to the general sentencing points, with the permission of the

18     Court.

19             MR. KREMER:  I leave it up to the Court, but I understood from

20     Mr. Dershowitz's role, it was in respect of the legal point this morning

21     on joint criminal enterprise.  We've had two discussions on it.  We're in

22     the matter of sentencing where I don't think I even used the word joint

23     criminal enterprise.  I'm not sure what Mr. Dershowitz can add to my

24     submissions.

25                           [Appeals Chamber confers]

Page 341

 1             MR. A. DERSHOWITZ:  Your Honour, I think I can add --

 2                           [Appeals Chamber confers]

 3             JUDGE POCAR:  Well, we are on the Prosecution appeal.

 4             MR. A. DERSHOWITZ:  I understand, Your Honour.  I wanted to limit

 5     my remarks simply to the effect of JCE on the sentencing.  That's the

 6     only issue I would like to address in three to five minutes.

 7             JUDGE POCAR:  That's fine.

 8             MR. A. DERSHOWITZ:  With the permission of the Court, Your

 9     Honour.  Thank you very much.  The Prosecution mentions that they did not

10     mention JCE.  Of course not, but the whole thrust of their sentencing

11     approach is through the vehicle of JCE, that is, there would be no way if

12     you looked from the beginning on and you looked only at Mr. Krajisnik's

13     conduct that you could claim that a sentence in excess of even a small

14     number of years would be excessive.  The only way they get to their

15     sentencing argument is by working backwards, by looking at the crimes on

16     the ground and holding him responsible for all of those crimes and then

17     leaving a very, very brief time in their argument for showing what his

18     responsibility was and they cite particularly paragraph 1041 to show

19     Mr. Krajisnik's responsibility.

20             If you look at 1041, Mr. Krajisnik is performing his function.

21     He is trying to exchange prisoners.  There is no mention of civilian

22     prisoners.  There is mention of prisoners of war and the whole focus of

23     that conversation with the Minister of Justice is to exchange prisoners

24     of war on one side with prisoners of war on the other side.  The claim is

25     that Mr. Krajisnik directed, encouraged, I'm quoting from them.  If they

Page 342

 1     could prove that, they could have their case decided under section 7(a).

 2     They wouldn't have to use joint criminal enterprise.  It's precisely

 3     because they cannot prove that he directed, encouraged, because the Court

 4     made a ruling that there was no effective control.  And then they point

 5     to several other political points, that he provided misleading

 6     information.  Misleading information is the job of diplomats to provide

 7     all over the world, and you don't expect a diplomat to provide

 8     information that journalists or people in the international community

 9     would find to be absolutely accurate.

10             And he says that they, they, putting together Mr. Karadzic and

11     Mr. Krajisnik, of course there's an enormous difference.  One was the

12     commander-in-chief and the other was in a legislative function.

13             And finally, just one brief point.  One of the reasons why the

14     Trial Court was so mislead and misunderstood so greatly the political

15     nature of Mr. Krajisnik's rule -- role was precisely there was

16     ineffective assistance of counsel.  The two are directly and closely

17     related.  A decent lawyer would have put on expert witnesses, would have

18     studied the history, would have learned this case, and if there had been

19     a decent lawyer who understood the need for expert witnesses,

20     Your Honours, we would not be here today.

21             JUDGE POCAR:  Thank you, Mr. Dershowitz.

22             I now turn to Mr. Krajisnik to continue the response.  Fifteen

23     minutes.

24             MR. KRAJISNIK: [Interpretation] Thank you, Your Honours.  I must

25     say that after the presentation like this by the Prosecutor I remain

Page 343

 1     speechless.  The Prosecutor seems to have done something that was not an

 2     appeal.  There were no arguments.  There was no response.  There was no

 3     evidence.  He's repeating everything that he stated to me eight years

 4     ago.

 5             I really cannot understand that today again he's repeating that

 6     on the 18th of March, Mr. Krajisnik called to arms.  Your Honours, you

 7     have the video footage.  I called for us to go on the field and draw maps

 8     in accordance with an agreement by the three ethnic communities.  The

 9     Prosecutor, who I commended in the beginning for good cooperation, today

10     is trying to mislead in order to show how Krajisnik has not been punished

11     enough because all of this information is correct.

12             Mr. Dershowitz said it well.  I'm just going to repeat that had I

13     had an adequate defence -- I'm a man who doesn't blame anyone.  And had

14     there been 150 witnesses here and had someone interpreted this statement

15     of the 28th of February, they would have seen that Momcilo Krajisnik

16     spoke to a group of deputies who said, "We don't want a Serbian Republic,

17     which we got under Cutileiro's plan.  We would like a Krajina state to

18     divide both Bosnia and Herzegovina."  I said we can't do that.  Let's ask

19     these people.  Do we want Republika Srpska, which Mr. Cutileiro gave to

20     us, or are we going to create bedlam in the whole international community

21     and have two independent states being divided?

22             On the 28th of February, we had the first version of the

23     Cutileiro Plan where it says, and you can see it there, that I, in my

24     activities, am committed to that.  My activities are one thing, and

25     negotiations are something else.  In the negotiations I urge pure Serbian

Page 344

 1     ethnic territories.  We spoke about Serbian territories where there was

 2     an absolute and a relative Serbian majority, and then we had Muslim and

 3     Croatian communities.  This was a benign statement, and that is why I

 4     believe that it is a shame had we had the experts -- well, I told

 5     Mr. Stewart, and I'm not going to say anything bad now.  I told him the

 6     Prosecution has nine experts.  If we don't know what is well, we know

 7     what is expensive.  If the Prosecutor can have nine, let us at least have

 8     one.

 9             So, Your Honours, they say that there was a transfer of the

10     population and there is information that you have on that and I pointed

11     out to that a lot and the Prosecutor saw that.  480.000 Serbs left the

12     federation, and 420.000 Muslim left Republika Srpska.  So now the

13     Prosecution should have said out of those 420.000 Muslims how many of

14     them were expelled and how many left because people were fleeing from the

15     war.

16             I indicated that 380.000 Muslims left the federation.  They were

17     running away from war, while 400 .000 Serbs ran from Republika Srpska,

18     fleeing from the war again.  This is my objection to the Prosecutor.

19     They should have said Mr. Krajisnik issued two statements against ethnic

20     cleansing.

21             In December, I made two statements where I opposed ethnic

22     cleansing.  In July, there was a call to all members of the SDS.  It was

23     issued that other ethnic groups must be respected.  There was such

24     orders.

25             People in the field did all kinds of things.  I'm not saying that

Page 345

 1     they didn't.  Now from what I understand, the Trial Chamber here, because

 2     they saw that the two sides were not equal enough, they wanted to make a

 3     compromise, and they said because of lack of evidence they convicted

 4     Krajisnik, and now the Prosecution insists that this is not enough

 5     because all of this is correct.

 6             I would just like to remind you the Prosecution today said that

 7     on the 3rd of April Mr. Antic testified in connection with the crimes in

 8     Bijeljina trying to impute that Krajisnik was aware of them.  You also

 9     have the testimony of Mrs. Plavsic.  She testified here that she was sent

10     by the Presidency of Bosnia and Herzegovina to Bijeljina by Izetbegovic,

11     and when she was asked, "Did you inform Krajisnik," she said, "No, I did

12     not.  It was not my obligation to do so."

13             I testified here.  I said that I tried to receive information by

14     telephone and that I was cut off by Mauzer, who is also being implicated

15     in this JCE.

16             Also discussed here is how Mandic said that he informed Krajisnik

17     about the crimes.  I stated this in my appeal.  You will see.

18             Mr. Mandic, when he was questioned by the Prosecutor said, "I

19     informed Krajisnik about everything that I knew," but when the lawyer

20     asked him, "What did you know?"  "I knew what was going on in the Kula

21     prison."  "Were there any crimes there?"  "No."  You will find that

22     there.

23             Now simply we're substituting ideas in order to disregard

24     everything that is positive.

25             I am the only politician who publicly before 100.000 people in

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 1     Banja Luka in 1993 or 1994 stated, "We don't hate Muslims and we don't

 2     hate Croats."  I didn't state that before The Hague Tribunal.  I didn't

 3     say that thinking that I would be held responsible for anything.  All I

 4     said was that it is wrong for any man to hate another man on the basis of

 5     his ethnicity.  I love my own people.  All I wanted was to implement the

 6     agreement that we had in early 1992.

 7             Your Honours, that agreement was -- well, on the 28th they said

 8     he said cleanse territories, and then on the 18th of March there was a

 9     different version of Cutileiro's plan, and you can see what I was

10     committed to.  I urged the support of those principles, and I supported

11     that.  You cannot advocate the exchange of territories, ethnically pure

12     territories.  That's a pejorative idea and no sensible person would

13     advocate that.  This is a consequence of war.

14             I would just like to mention one more thing.  There was a nexus

15     between the things on the ground and the leadership.  If we look at the

16     municipality of Bosanski Novi, we have Mr. Pasic who testified here where

17     7.000 Muslims were relocated.  When he was asked, "Did you inform the

18     Pale leadership," he said, "I did not."  Why did the Muslims leave?  They

19     left because "there were special units from Croatia, some paramilitaries

20     who were disturbing these people."  When those people came to see me, I

21     didn't have any communication with Pale.  Then I went to UNPROFOR upon

22     their request and helped them to leave.  We have the same case with

23     Petrovac, the same case with Prnjavor, Kljuic, Kotor Varos, and all the

24     rest.

25             I would like to say one more thing in connection with Bijeljina.

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 1     I stated in my appeal brief precisely, and this is what I object in

 2     Mr. Kremer's presentation, that in Bijeljina the Serbs had majority rule

 3     in the entire municipality.  There was a majority of the population and

 4     all the deputies were in a majority.  So there was no reason for the Serb

 5     side to begin the war there in order to take over power.  You will see

 6     that there was an Assembly session of ours on the 7th of March when it

 7     was publicly said that the Serb side -- peace suits them.

 8             What happened in Bijeljina?  In Bijeljina local people and

 9     outsiders got into a fight.  Somebody came on horseback.  Somebody threw

10     a bomb, and the war began and there was no discussion who did what then,

11     and especially because before that, there was a crime that occurred in

12     Brod and in Kupres.

13             I'm going to end with this, with a request, Your Honours.

14     Please, all I would like you to do is to review all the arguments.  If

15     what Mr. Kremer says were true, I would be an unhappy man.  I'm unhappy

16     that the war had taken place, but this is not correct.  The Trial Chamber

17     did not take into account many elements just because I didn't present

18     evidence on that.  I testified here for 40 days in order to cover the

19     holes that were not covered in my defence.

20             And once again, thank you very much.

21             JUDGE POCAR:  Thank you, Mr. Krajisnik.  I give the Prosecution

22     the floor for their reply.  You have five minutes to do so.

23             MR. KREMER:  I have nothing to add.  Thank you.

24             JUDGE POCAR:  Well, this concludes then the Prosecution's appeal.

25     According to the Scheduling Order --

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 1             THE INTERPRETER:  Microphone, Your Honour.

 2             JUDGE POCAR:  There would be room now for -- sorry.

 3             According to the Scheduling Order of 18 July, there will be room

 4     now for a personal statement of Mr. Krajisnik if he wants to do so.  It's

 5     up to him to decide whether to take the floor for a maximum of 10 minutes

 6     on a personal basis.  You have the floor.

 7             MR. KRAJISNIK: [Interpretation] It's a rule in life that

 8     everything that begins lasts for a certain amount of time and then has an

 9     end.  So, Your Honours, after more than eight years, I hope that this

10     will mark the end of these proceedings in my case.

11             I have listened to all the arguments presented in the course of

12     the trial, and for the first time I experienced something that I never

13     believed before.  I heard the suffering of the other side.  During the

14     war all I heard was what happened to the Serbs.  And I'm unhappy because

15     of that suffering.  No one had the right, in the name of my people, to do

16     anything harmful to somebody else, never mind kill them.

17             I even told the lawyers, please, do not cross-examine these

18     witnesses.  I don't want -- even if they could help me a lot, because

19     it's difficult when you see a young woman who lost her husband and a

20     child and now she's wandering all over the world thinking about the

21     revenge she could take on someone.  And of course she would see a

22     criminal in me who, in her eyes, is guilty of all the evil deeds.

23             I did not want the war.  I didn't want the war in spite of all

24     the charges, because war doesn't bring any good to anyone.

25             My parents taught me that, and it's an old saying, that if a

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 1     person wishes for war, may war find them in their own house.  It's like a

 2     curse.  But when the war began, I did everything in order to achieve

 3     peace.

 4             A little bit earlier I heard that many went through misfortunes

 5     that Krajisnik did not experience.  Gentlemen, during the war I lost my

 6     wife, and I had three underaged children living with me at Pale.  My wife

 7     was suffering from lupus systematicus and until August, because of her,

 8     because she was sick, I had to stay with her, and then because of the

 9     Muslim shelling her situation deteriorated and she had to go to Belgrade

10     where she died.  And throughout the war I was doing my work and trying to

11     take care of my three underaged children.

12             I lost my uncle.  I lost my cousins.  I lost my place of birth.

13     I lost my place of residency.  I lost my property, and I know what it

14     means for each person to be in the midst of war.

15             Of course I did not suffer as much as many others did.  They

16     suffered much more than I did.  And of course, I believe that it is a

17     great misfortune that happened in Bosnia and Herzegovina.  And once I

18     stated this historical truth, and that is that people always said that in

19     Bosnia it's very dangerous.  It's like playing with petrol.  If you smoke

20     close to a source of oil or petrol, because this is a region that

21     maintained peace only on the basis of compromise and tolerance and the

22     life together among the three people, but at the moment in time when

23     these people begin to quarrel, that conflict lasts for years and ill

24     deeds are remembered for a long time.

25             I followed the testimony here.  Nobody ever presented a positive

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 1     example.  I took part in positive examples.  I'm not going to mention

 2     them because I don't want to have the merit of that, but now when I watch

 3     television and when I see what is happening in Bosnia and Herzegovina,

 4     I'm unhappy from where I am.  There is no true reconciliation that has

 5     taken root there.  There they are now calculating how many of ours are in

 6     The Hague, how many of theirs, how many were convicted, how many were

 7     not, and then they applaud their own and scold the others.  So there is

 8     no reconciliation.  The reconciliation does not occur just with the

 9     punishment.  There has to be forgiveness as well.  So that is the way to

10     approach the person who is deemed guilty.

11             And crimes have not been forgiven.  I have here witnessed people

12     who have admitted that they were guilty of crimes, and hundreds of times

13     they were stopped from committing suicide because it's difficult to live

14     with the crimes one committed and to recall those whom you did wrong.

15             If it means anything, I forgave all of those who I could consider

16     guilty or I could blame in my life.  I believe that a solution is in

17     forgiveness, and I think that forgiveness cannot be attained through

18     punishment alone, especially because there is one trial going on here and

19     another one in Bosnia and Herzegovina.

20             I hope that this message will also be a message to people to stop

21     counting of how many of their people are at an advantage and how many are

22     not.  All the people are equal here, especially when we think of those

23     who believe in God, because we know that before God we all must be the

24     same.

25             By nature I'm a patriot, and in spite of people who believe that

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 1     there is no justice, I hope that you will correct the decisions of the

 2     Trial Chamber, because being an optimist, I feel unfortunate but I do not

 3     believe that I am guilty.

 4             And excuse me, just one moment.  I forgot to say something.  I

 5     would like to thank the Mr. Karganovic and Mr. Dershowitz team, and I'm

 6     very grateful that they are here, and I'm very pleased with the objective

 7     approach of Mr. Nicholls, which reminds me in a way of the things that I

 8     was against, that -- and now when I see how much he has done in order to

 9     secure some justice for me, I would just like to express my gratitude to

10     him.

11             JUDGE POCAR:  Thank you, Mr. Krajisnik.

12             This brings us to the conclusion of this appeal hearing.  Before

13     closing, I would like to express our gratitude to the parties and their

14     counsel for the submissions and their constructive approach,

15     notwithstanding today's heavy schedule.

16             I would like also to thank all those who gave their assistance in

17     the holding on this appeals hearing, and a special thanks to the

18     interpreters who, as usual, contributed efficiently to facilitate the

19     consideration of -- of the appeal and facilitate our discussions.

20             The Appeals Chamber will now rise.  The hearing is adjourned.

21                           --- Whereupon the Appeals Hearing

22                           adjourned at 5.52 p.m.