1 Tuesday, 4 December 2001

2 [Appeal Proceedings]

3 [Open session]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE JORDA: [Interpretation] Please be seated. Good morning.

6 First I would like to be sure that the interpreters are ready. Good

7 morning to them. I see that everybody is at his or her post, and without

8 any further ado, I'll give to -- I'll ask Madam Registrar to call the case

9 for this morning's proceedings.

10 THE REGISTRAR: Good morning, Your Honours. Case number

11 IT-96-23-A and IT-96-23/1-A, the Prosecutor versus Dragoljub Kunarac,

12 Radomir Kovac, and Zoran Vukovic.

13 JUDGE JORDA: [Interpretation] Very well. Can we have the accused

14 brought in, please.

15 [The appellants entered court]

16 JUDGE JORDA: [Interpretation] Good morning. You may be seated. I

17 would ask for appearances for the parties. Let us begin with the

18 appellants' Defence. For Mr. Kunarac, who is representing him?

19 MR. PRODANOVIC: [Interpretation] Good day, Your Honours. My name

20 is Slavisa Prodanovic, and sitting next to me is Dejan Savatic, counsel,

21 and we represent Dragoljub Kunarac. Thank you.

22 JUDGE JORDA: [Interpretation] Thank you. And next, for

23 Mr. Kovac?

24 MR. KOLESAR: [Interpretation] Good morning, Your Honours. My name

25 is Momir Kolesar, attorney, and with me is attorney Vladimir Rajic, and we

1 represent the accused Radomir Kovac. Thank you.

2 JUDGE JORDA: [Interpretation] Thank you. And for Mr. Vukovic.

3 MR. JOVANOVIC: [Interpretation] Good morning, Your Honours. My

4 name is Goran Jovanovic, and my colleague, Jelena Lopicic, and I represent

5 Zoran Vukovic.

6 JUDGE JORDA: [Interpretation] Let me now turn to the Office of the

7 Prosecutor and have the appearances for the Prosecution, please.

8 MR. CARMONA: Your Honours, my name is Anthony Carmona and I

9 appear on behalf of the Prosecution. Appearing with me for the

10 Prosecution is Ms. Norul Rashid, Ms. Helen Brady, Ms. Susan Lamb, and our

11 case manager is Mr. Wolfgang Sakulin. Thank you.

12 JUDGE JORDA: [Interpretation] Thank you, Mr. Carmona. Very well.

13 We can now begin. I'm first going to give a brief introduction to open

14 this hearing.

15 This hearing is an appeals hearing at the International Criminal

16 Tribunal for the former Yugoslavia, composed of myself, presiding, Judge

17 Shahabuddeen, Judge Guney, Judge Schomburg, and Judge Meron. We are

18 hearing the final arguments, the conclusions, today. Mr. Kunarac, Kovac,

19 and Mr. Vukovic, the accused, have appealed against this appeal on the 6th

20 of March, 2000, that is, against a Trial Chamber judgement which was

21 rendered on Trial Chamber II, composed of Judge Mumba, Pocar, and Hunt on

22 the 22nd of February. I will speak about the region of Foca, which is now

23 in the Republika Srpska. I will recall some of the conclusions of the

24 Trial Chamber.

25 In the judgement, the Trial Chamber found all the accused guilty

1 of crimes pursuant to Articles 3 and 5 of the Statute of the Tribunal,

2 that is, violations of the laws or customs of war and crimes against

3 humanity. The Chamber, the Trial Chamber, that is, considered that there

4 was a campaign which was conducted by the Serbs throughout the

5 municipality of Foca whose purpose was to chase out the Muslims of the

6 region. One of the targets of the campaign were the Muslim civilians, and

7 more particularly, the Muslim women. Of course, I recall what the Chamber

8 said.

9 Mr. Kunarac was convicted on the basis of 11 counts, among others,

10 rape, torture, and enslavement. He was sentenced to 28 years in prison.

11 The Trial Chamber concluded that personally he committed those crimes and

12 organised the transfer of the women to places where they were raped.

13 Mr. Kovac was convicted on the basis of four counts, that is,

14 rape, enslavement, and outrages to personal dignity and sentenced to 20

15 years in prison.

16 Mr. Vukovic was convicted on four counts, that is torture and

17 rape, and was sentenced to 12 years in prison.

18 I would like to state that we issued an order on the 30th of

19 November in which we rejected the request for being allowed to present

20 additional evidence for the appellant Vukovic, the grounds of the appeal,

21 and now they asked that their sentence be modified.

22 The appellants put forward several grounds of appeal both in law

23 and in fact. The Chamber will recall them before it hears the oral

24 arguments of the parties.

25 Our hearings will take place during three days, today from 9.00

1 until 4.00; tomorrow from 9.30 to 2.15, probably at 2.00 for reasons that

2 I'll explain tomorrow; and Thursday from 9.30 to 2.15. Six hours and

3 thirty minutes will be devoted to the appellants' arguments. The

4 Prosecution will have four hours to put forward her arguments. Each

5 accused, lastly, will have 15 minutes to present his reply if that should

6 be necessary in their opinion.

7 For preparation of this hearing, there were two Status

8 Conferences, and Judge Shahabuddeen, who is the Pre-Trial Judge in this

9 case, issued an order, a Scheduling Order, and you have all been informed

10 of it. This was dated 16 November 2001. In addition, the Prosecutor and

11 the appellants, on several occasions, filed written submissions relating

12 to the grounds of the appeals, and I will not recall them since you are

13 familiar with them.

14 My colleagues and myself, in light of the previous discussions,

15 classified the grounds of appeal according to your own suggestions or the

16 suggestions of the Prosecutor. We identified nine issues, nine main

17 issues, that is, and in agreement with the parties, the counsel

18 distributed the way they would deal with these various subjects that are

19 being appealed, that is, the grounds, insofar as in order to avoid

20 repetition, some of the grounds are common to the three appellants and

21 some are specific to one or several of them.

22 So I will recall that the first ground, the first subject, is the

23 general background of the case. I was told that Mr. Prodanovic, counsel

24 for Mr. Kunarac, would deal with that issue. Then the second, the second

25 subject, ground of appeal, is the existence of an armed conflict and the

1 nexus between the conflict and the criminal conduct. And according to the

2 notes I have, Mr. Jovanovic will deal with that. He is counsel for

3 Mr. Vukovic. Third ground is the white -- widespread and systematic

4 attack against the population. Those grounds will be dealt with, I

5 believe, by Mr. Savatic, who is counsel for Kunarac. Fourth ground of

6 appeal will be cumulative convictions, and Mr. Savatic will deal with that

7 as well. Fifth ground of appeal, legal issues relating to application of

8 the Statute and the Rules. Mr. Kolesar, counsel for Mr. Kovac, will deal

9 with that. Sixth are the questions relating to identification of the

10 accused. That is the ground which will be dealt with by Mr. Jovanovic,

11 who is Mr. Vukovic's counsel. Seventh, the question of evaluation of the

12 expert witness, Mr. Jovanovic, counsel for Mr. Vukovic, will deal with

13 that. Then are grounds based on the definition of offences relating both

14 to common or individual grounds of the accused. Four of the six counsel

15 will do that. I do not have any further details. And lastly, questions

16 dealing with sentencing. Three counsel for the accused will deal with

17 that.

18 I would like to turn now to the parties and ask whether

19 appellants' counsel and counsel for the Prosecution, I ask you whether we

20 can consider that these are in fact the points that you're going to

21 argue. Yes? No comments? From the Prosecution? Perhaps the Prosecution

22 would care to say something.

23 MR. CARMONA: Your Honours, we in fact to a large extent agreed

24 with the subject matter that has been expressed in terms of what would

25 constitute a grounds of appeal. Thank you.

1 JUDGE JORDA: [Interpretation] Very well. I thank you. I had

2 noted that in the order of 16 November 2001, the Prosecutor had presented

3 them somewhat differently, but I have the impression that everything is

4 going to work out well this way. Do we agree? Very well.

5 If everybody does agree, I think that we can begin with

6 Mr. Prodanovic, who will plead to the general background of the case.

7 I give you the floor, Mr. Prodanovic.

8 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. At this

9 point in time when I'm beginning the exposition of the arguments put

10 forward by all the counsel in our appeal briefs, I wish to inform the

11 Tribunal that we shall stick to the schedule that has been set out and

12 that we shall not overstep our time but, rather, shall try to save time

13 while still putting forward clear and convincing arguments. Therefore, I

14 will begin by setting out our view of the facts which are important for

15 the general background of everything that happened on the territory of the

16 former Yugoslavia.

17 These issues appear in every indictment before this Tribunal, but

18 we consider it is especially important for our case for these facts to be

19 seen properly, because this is the only way in which we can establish the

20 role of our defendants in the conflict which broke out on the territory of

21 the municipality of Foca. And I emphasise on the territory of the

22 municipality of Foca, because in my view, every case must be seen within

23 the context of the conditions prevailing in this part of the territory of

24 the former Yugoslavia or, rather, the area that is relevant for each

25 particular indictment.

1 Your Honours, you have had an opportunity to familiarise yourself

2 with the events that led to the break-up of the former Yugoslavia. It is

3 our view that the causes of this break-up and its nature cannot be

4 established before this Tribunal because this is a matter for historians

5 to deal with. In the events preceding the break-up of the former

6 Yugoslavia, there were significant changes in the world order, and there

7 was a break-up of one of the blocks of a bipolar world. Therefore, the

8 Soviet Union broke up. Democratic changes took place in that country, and

9 this led to changes in international borders and independence for

10 particular republics.

11 On the territory of the former Yugoslavia, there was a clear wish

12 for secession from the Federal Republic of Yugoslavia among the leadership

13 of Slovenia and Croatia. The army of the joint state of all the peoples

14 living on the territory of the former Yugoslavia --

15 THE INTERPRETER: The interpreters are having technical problems.

16 JUDGE JORDA: [Interpretation] [No interpretation]

17 THE INTERPRETER: We can try now, Your Honour.

18 JUDGE JORDA: [Interpretation] [No interpretation]

19 MR. PRODANOVIC: [Interpretation] Thank you.

20 Before withdrawal from Slovenia and Croatia, the JNA was

21 considered to be an aggressor army, although it was composed of

22 representatives of all the nations and nationalities as ethnic groups in

23 the former Yugoslavia were referred to.

24 These groups were not only equal, but they had the same rights

25 accorded to ethnic groups in the most developed countries in the world,

1 and these were rights that they gained in the war of liberation during

2 World War II against the axis powers. However, in spite of this, although

3 the Socialist Federal Republic of Yugoslavia had a social system which

4 guaranteed the right of everyone to take part in government and to have

5 full equality, although brotherhood and unity, as it was called at the

6 time, was nurtured, the desire to secede from Yugoslavia grew and was

7 accelerated by changes in the social and political system. That is, a

8 one-party system was transformed into a multi-party system, which led to

9 the emergence of numerous political parties which took part in the first

10 multi-party elections held after World War II.

11 In this process, parties with national agendas were set up: the

12 Croatian Democratic Union, as the leading party in Croatia, the Party of

13 Democratic Action as the leading party in Bosnia and Herzegovina, and the

14 Serbian Democratic Party as a party in Croatia and Bosnia and Herzegovina.

15 After a failed attempt to preserve Yugoslavia and after the

16 secession of Slovenia and Croatia, the JNA withdrew to the rump

17 Yugoslavia, including the territory of Bosnia and Herzegovina. At that

18 time, the Party of Democratic Action was set up under the leadership of

19 Alija Izetbegovic, who, during the time of the former Yugoslavia, had been

20 sentenced to prison for anti-constitutional activities based on Islamic

21 fundamentalism, and old wounds from World War II were opened up again when

22 numerous important Muslims supported the axis powers and the puppet state

23 of the so-called Independent State of Croatia and when unfortunate events

24 occurred on all sides.

25 During World War II, Muslims and Serbs suffered at each other's

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1 hands, and this became clear at the rally in Foca, which was organised by

2 the SDA on the 25th of August, 1992, as is evident from the Defence

3 exhibits. Under cover of democratic changes, Alija Izetbegovic started

4 gathering Islamic intellectuals from the Islamic declaration which was

5 authored by Alija Izetbegovic, and which was why he was convicted, and

6 which was actually the basis of the platform of the Party of Democratic

7 Action. It follows, and I quote: "The Islamic movement can and should

8 take over power as soon as it is strong enough in morale and numbers to

9 set up a new Islamic government toppling non-Islamic power."

10 This was the aim of the Party of Democratic Action, which was

11 evident and which was leading to the creation of an Islamic state in

12 Bosnia and Herzegovina. The Serbian people, who lived in large numbers

13 not only in Croatia but also in Bosnia and Herzegovina, where they had

14 lived for centuries, and which gave the greatest number of victims in the

15 struggle against Nazism during World War II, felt that the break-up of

16 Yugoslavia would cause its becoming an ethnic minority in Croatia and in

17 Bosnia and Herzegovina. That is why all the parties, the members of which

18 were Serbs, had a clear goal, and that was to preserve Yugoslavia. This

19 goal was also a goal that the Party of Democratic Action paid lip service

20 to, but all its actions were aimed at setting up an independent Bosnia and

21 Herzegovina consisting mainly of Muslims.

22 Parallel with the political activities advocating the idea of an

23 independent Bosnia and Herzegovina, immediately before the conflict which

24 broke out, the Party of Democratic Action began arming its most faithful

25 members, and the Defence has adduced evidence to prove this. During 1990,

1 we had fully organised Muslim paramilitary units, the so-called Patriotic

2 League, which was actually a party armed force, and also there were the

3 Green Berets, which were also a well-organised paramilitary force. The

4 leaders of the SDA were convinced that they would win an armed conflict,

5 and therefore they issued political decisions in which the Serbian people

6 did not participate, finally declaring independence on the basis of a

7 referendum that had been carried out in which the Serbian people did not

8 participate, and the result of which, under the constitution then in

9 force, did not give them the right to declare independence.

10 The constitution provided for such a decision being made with a

11 two-thirds majority of all the voters in the republic. This was

12 impossible without the participation of the Serbian people, because as the

13 results showed less than two-thirds of registered voters actually voted at

14 this referendum.

15 The activity of paramilitary units before the results of the

16 referendum were announced, and especially after they were announced, and

17 the speedy recognition of Bosnia and Herzegovina by some countries, led to

18 the Serbs feeling imperilled, and they began to organise themselves

19 spontaneously, independently of each other. This self-organisation took

20 place at the municipal level, especially in those municipalities where the

21 Serbs were in the majority or where they had a considerable percentage of

22 the population.

23 Bearing in mind these developments and the developments on the

24 global scale, bearing in mind that Foca was the centre of activity of the

25 most extreme Muslims and the centre of supplying arms to Muslims, and Foca

1 was a centre which was intended to become the Muslim centre of Europe,

2 after the Muslims engaged in brutal celebrations of independence, the

3 Territorial Defence depot was taken over by the Serbian people and the

4 first conflicts in Foca broke out on the 8th of April, 1992.

5 The Serbs therefore had not been preparing for war. They armed

6 themselves only after the Muslims began to use their weapons openly, the

7 weapons they had acquired over the previous years, and it was only after

8 they had taken over the Territorial Defence depot and the Territorial

9 Defence had already split into a Serbian and a Muslim side and was not

10 functioning in accordance with the doctrine it had.

11 Taking part only later, not from the first days, the three accused

12 did not even take part in these first times of self-organisation. They

13 only took part later, when a battle was waged for control of the territory

14 of Foca, and this was later confirmed and accepted in the Dayton Accords.

15 Each of the accused took part in the armed conflict independently

16 of the others. They had nothing in common as regards personal contacts,

17 and their further behaviour during the conflict cannot be considered to be

18 concerted action, especially not action which could be described as having

19 a common purpose.

20 This sequence of events which we have briefly set out, both on a

21 global scale and in the municipality of Foca, shows that there was no

22 plan, that there had been no specially planned operations to mount an

23 attack on the civilian population. And as became evident later, and as my

24 colleagues will point out, on the territory of the municipality of Foca

25 there was no attack on civilians, and there is no question of a systematic

1 and widespread attack.

2 I stress again that during the trial it was not sufficiently

3 established how the conflict broke out, and no evidence was shown about

4 the situation in other municipalities including Gacko and Kalinovik. So

5 the Trial Chamber erred when it talked of a widespread and systematic

6 attack in these municipalities, Gacko and Kalinovik.

7 My colleague Mr. Jovanovic will continue. Thank you.

8 JUDGE JORDA: [Interpretation] Thank you, Mr. Prodanovic.

9 Mr. Jovanovic now. We agree. You are the one who is going to

10 deal with the ground of appeal on the existence of an armed conflict and

11 the nexus between the conflict and the criminal conduct of the accused; is

12 that correct? Are you the one going to do that? You have the floor.

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

14 While fully supporting everything that my colleague has said, I

15 would like to talk briefly about the armed conflict and the conditions

16 that -- so I would like to draw your attention to the issues of the

17 existence of the armed conflict and conditions needed to fulfil this

18 requirement.

19 The issue of the armed conflict was raised here with respect to

20 three municipalities in the former Bosnia and Herzegovina, the existence

21 of the armed conflict in the municipality of Foca was not contested at any

22 time. This was established at the pre-trial stage when the Defence and

23 the Prosecution reached an agreement regarding the fact that in April and

24 up until the February of 1993 there was indeed an armed conflict in the

25 territory of the Foca municipality where two dominant parties were the

1 Serbs and the Muslims and that is not a disputed issue.

2 The knowledge of the accused concerning this armed conflict in

3 Foca municipality is not disputed either. This can be easily concluded

4 based on the fact that this was something reaffirmed by the Defence during

5 the trial, and this was also something that was accepted by the Trial

6 Chamber, that the accused were indeed soldiers of the army of the

7 Republika Srpska and that they had actively participated in carrying out

8 military tasks. So these two issues are not disputed at all.

9 What Defence finds fault with during the first instant proceedings

10 can be summed along two basic lines. The first reason we object is of a

11 formal nature. It is true that this is a joint trial, and the accused

12 here were Mr. Kunarac, Kovac, and Vukovic. The Defence of Mr. Vukovic

13 accepted this joint trial for the purposes of the efficiency and judicial

14 economy. However, there are two separate indictments.

15 The indictment against Mr. Vukovic does not mention at all the

16 municipalities of Gacko and Kalinovik anywhere in the indictment, and it

17 was because of that that the Defence did not consider it necessary to

18 adduce evidence regarding these two municipalities that were never

19 mentioned in the indictment. The indictment against Mr. Kunarac and

20 Kovac, in its general part, does mention the municipalities of Gacko and

21 Kalinovik.

22 However, what actually took place during the trial? The first

23 witness that testified and that did not come from the municipality of Foca

24 but, rather, from the municipality of Gacko - and we're now talking about

25 the protected witness with pseudonym FWS-186 - when this witness testified

1 and after the chief examination was concluded and Mr. Kunarac's Defence

2 counsel started cross-examining the witness, at the very beginning of the

3 cross-examination, the Trial Chamber exchanged comments with Defence

4 counsel. And in order for it to be easier to follow this, this can be

5 found on page 2986 of the official transcript.

6 When based upon the Trial Chamber's comments, the entire Defence

7 came to the conclusion that the issue of the existence of the armed

8 conflict in Gacko municipality was taken off the agenda, if I can say so.

9 All of our questions which were put to the witnesses who did not originate

10 from Foca municipality - and this pertains to three witnesses, three

11 victims - were directed at some other issues, credibility of that witness

12 and their previous statements and making a link to that and the events

13 which took place.

14 So because of that, the Defence believes that the existence of

15 armed conflict was not properly established in those two municipalities,

16 in addition to the Foca municipality. By this, I mean the municipality of

17 Gacko and Kalinovik.

18 The other ground of objection of the Defence, as far as the

19 existence of the armed conflict is concerned, relates to the conditions

20 which are needed in order to determine that there is an armed conflict and

21 to create a nexus between the accused and the crimes committed during the

22 armed conflict. In order to enable you to easier follow my arguments, I

23 will quote one sentence from the judgement which can be found in paragraph

24 5.6 or 56. And the sentence begins as follows: "The condition to create

25 a nexus between that act and the armed conflict" --

1 JUDGE JORDA: [Interpretation] Excuse me for a moment. Would you

2 give me the page reference again, please, in the judgement? Was it 5.6?

3 I didn't quite catch the reference number.

4 MR. JOVANOVIC: [Interpretation] Paragraph 568.

5 JUDGE JORDA: [Interpretation] Okay. Five hundred sixty-eight.

6 Yes. Very well. Have my colleagues found this spot? Yes. Fine. Please

7 proceed.

8 MR. JOVANOVIC: [Interpretation] So I will quote this sentence,

9 because the Defence believes this sentence to be of crucial importance,

10 and it believes that this was the basis for the entire conclusion reached

11 by the Trial Chamber. And in order to clarify, I am reading from the

12 official translation, which was delivered to us. This is the official

13 translation into B/C/S that we received. And the sentence goes as

14 follows --

15 JUDGE JORDA: [Interpretation] Excuse me for interrupting. We have

16 a technical problem here. I am hearing interpretation in English. That's

17 fine for my English progress, but that might not be the best for the

18 hearing.

19 Are you having the same problem, Judge Guney?

20 Let's see if we can fix that. I do hear the interpretation in

21 French, but I'm hearing the English as well. Let's try to start again.

22 Please proceed. Let's see how it goes.

23 MR. JOVANOVIC: [Interpretation] "The requirement that the act be

24 closely related to the armed conflict is satisfied if, as in the present

25 case, the crimes are committed in the aftermath of the fighting and until

1 the cessation of combat activities in a certain region and are committed

2 in furtherance or taking advantage of the situation created by the

3 fighting."

4 The definition taken by the Trial Chamber held that several

5 conditions needed to be fulfilled simultaneously, and the lack of any of

6 these conditions listed in this paragraph would indicate that all of these

7 elements could not be brought into a nexus, into a connection.

8 What I wish to say is the following: The Trial Chamber, when it

9 concluded that the sexual mistreatment of women or sexual offences were a

10 plan of the campaign carried out with respect to the non-Serb population

11 residing in Foca, Gacko, and Kalinovik municipalities in that certain time

12 frame, then we would like to know more about this plan. If this plan is

13 absent, if there is no idea to create this plan and to carry this out in a

14 way presented in this indictment and in the judgement, then all of those

15 elements which are necessary to reach this conclusion are missing as

16 well.

17 And why do I bring this up? Because from the very beginning of

18 this trial, as was observed in our introductory speech, there was a

19 presumption concerning a systematic and widespread attack against the

20 civilian population, which included a whole series of acts and activities

21 aimed at evicting the non-Serb population from a certain area. Part of

22 this attack are sexual offences as well, and this trial focused on those

23 sexual offences.

24 The accused were not indicted for demolishing religious structures

25 or arresting people. No. We are here dealing with sexual crimes. So in

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1 order to perpetrate those sexual offences and in order to make a link

2 between them, there must be, as was shown here, some kind of a

3 pre-existing plan.

4 So by reading the documents that were presented during the trial,

5 we concluded that the Prosecution had worked very diligently on the Foca

6 case for many years. However, during this trial, the Prosecution did not

7 bring into evidence any document which would directly or indirectly

8 confirm the existence of this plan. So we have to be completely fair.

9 Some plans are not written down on paper. People simply sit down

10 and hammer a plan between them. Not everything needs to be on paper.

11 However, if this plan includes a number of people, includes

12 military - because the perpetrators of these crimes were members of the

13 regular army, and this has not been disputed - then there must be some

14 kind of a trace indicating that there had been such a plan. We have not

15 heard from any witnesses, either Prosecution or Defence witnesses, that

16 they had heard or had any knowledge on the existence of such plan, a plan

17 to use rape as a weapon in the conflict. There was no mentioning of this

18 at all.

19 If we take a closer look at this plan, then it becomes more and

20 more strange. We also do not know why was this plan carried out against

21 three residents of the Kalinovik municipality, no residents of Gacko

22 municipality, and some 20 residents of Foca municipality. So this issue

23 of systematic and widespread attack will be covered by my colleague, and

24 the only reason I am bringing this up is in order to show that if this

25 plan indeed existed, then it could not have pertained only to an extremely

1 limited group of people. Why was this plan applied only and exclusively

2 to the residents of one area, which is the villages of Mjesaja and

3 Trosanj? All of the witnesses told us that this is in fact one place, one

4 area, and we want to know why was this plan implemented only with respect

5 to residents of that particular area and no other residents at all?

6 These questions remain without an answer, and I believe that if

7 this is indeed the case, if there is no answer to these questions, then

8 the nexus between the accused and the existence of the armed conflict is

9 premature at this point. We need to have an answer to all of these

10 questions in order to make a proper conclusion.

11 Your Honours, this concludes what I had to say regarding this

12 issue.

13 JUDGE JORDA: [Interpretation] Thank you, Mr. Jovanovic.

14 Mr. Savatic, I believe you are the one who is going to take the

15 floor on -- going to plead to the widespread and systematic attack.

16 MR. SAVATIC: [Interpretation] Yes, that's correct. I will prepare

17 my remarks in French and will go through the interpretations.

18 JUDGE JORDA: [Interpretation] I have no objection to that. Please

19 begin.

20 MR. SAVATIC: [Interpretation] Thank you very much.

21 So that the Tribunal, Mr. President and Your Honours, can be

22 competent to rule, or to rule on crimes against humanity, pursuant to

23 Article 5 of the Statute, one must be in the presence of an armed

24 conflict, and as my colleague has said, and there must be certain

25 conditions which are developed by the case law of this Tribunal; that is,

1 there must be an attack against the civilian population. These elements

2 were recalled as well by the Prosecution, pursuant to Article 3 of the

3 Statute, but as I will say later on, the Defence's position is to exclude

4 that tendency that the Prosecution has to have cumulative charging. We

5 are now speaking about Article 5 of the Statute of this Tribunal.

6 These issues were taken up, I could say, to a very -- very fully

7 during the arguments and the presentations that would have a horizontal

8 view of what we are discussing about. The judgement mentions the issue of

9 an attack against the civilian population on page 323 to 340, in terms of

10 the applicable law, and one applies the -- from 210 to 215 and 220 to 223

11 of the indictment regarding Mr. Kunarac. These are the Defence's -- the

12 Defence has dealt with that issue. The Prosecutor mentions it in on the

13 brief on page 18 to 29, and lastly, in the Defence reply on pages 8 to 14.

14 We are talking about here at this hearing, during these oral

15 presentations, necessary -- of underscoring the most important points,

16 which seem for the Defence counsel particularly important to draw your

17 attention to.

18 As Mr. Jovanovic has said, the only element on which there is an

19 agreement is that there was an armed conflict on the territory of the

20 municipality of Foca. Absolute disagreement as to the existence of an

21 attack, and, as part of a conflict, an attack which would be systematic

22 against the general Muslim population, which has not at all been proved in

23 this trial, and there's also complete disagreement about knowing whether

24 there might have been such an attack against the civilian populations on

25 the territory of the municipality of Foca.

1 So that in order for there to be an attack against the civilian

2 population, according to the very case law of this Tribunal, which has

3 been established - I believe very solidly in the Tadic case - there must

4 be several criteria, which are cumulative. That is a definition -- a

5 broad definition, and the burden of proof for all of this, of course,

6 falls on the shoulders of the Prosecution. Therefore, there must be an

7 attack against the civilian population, this attack must be widespread and

8 systematic, and the perpetrator participating in the attack must be aware

9 of the context in which that attack has been carried out, that is, the

10 fact that the attack has been directed against civilian populations.

11 We believe it is important as well to emphasise within this case,

12 on the basis of your Tribunal's case law, that the population against

13 which this population [as interpreted] is directed must be defined by the

14 case -- by the Court, and on the basis of that, one considers -- or one

15 can consider whether the attack was widespread and systematic. This

16 statement is found in paragraph 430 of the judgement, which says that one

17 must define the population at issue.

18 I was speaking about the most important facts. It seems that we

19 have to draw your attention to them. It was established in this case

20 beyond any reasonable doubt that there is an armed conflict -- or there

21 was an armed conflict between the Muslim forces and those of the Serbs on

22 the territory of the municipality of Foca. One notes that both parties

23 were prepared for the conflict. The fighting was very difficult, very

24 hard, and the armed character of the operations is preponderant.

25 The Prosecution has asserted - and its considerations are to be

1 found on pages 16 to 31 of the judgement; that is, the judgement relates

2 them - it states that the Muslim population of Foca allegedly was the

3 subject, before the start of the hostilities, of discriminatory measures;

4 and that freedom of movement for the Muslims was said to have been

5 limited; and that, without its being clear at this point whether the

6 following events were to co-exist or were subsequent to the military

7 issues at question, that the Muslim houses were allegedly destroyed and

8 that their property was allegedly looted; that the Muslim population was

9 assembled in various public buildings of the city; and that all of the

10 religious buildings, that is, mosques, were said to have been destroyed.

11 All of this must constitute the concurring indicia of an attack against

12 the civilian population which was Muslim. These considerations on this

13 alleged plan were mentioned by Mr. Jovanovic.

14 What seems to us particularly important is that none of these

15 facts, not a single one, can be -- even if they were to have been proved

16 to constitute a systematic attack against the Muslim population, none of

17 that has been ascribed to the accused. The facts which have been ascribed

18 are, in our opinion, not part of an attack on the civilian population in

19 the sense of Article 5 of the Statute. And this is logical, because the

20 three accused were soldiers who participated in military operations.

21 The Trial Chamber notes, correctly - this is paragraph 569 in

22 the -- I give you a free translation here of that passage:

23 "According to the Trial Chamber, the three accused, in their

24 capacity as soldiers, took an active part in the carrying out of the

25 military tasks, fighting for one of the two parties to the armed conflict,

1 and therefore knew that a military conflict was taking place."

2 Here, according to the judgement, which is being -- which is

3 calling into question the position and the grounds, the motives for the

4 accused - they are in a military situation - excludes any idea of an

5 attack against the civilian population, and three of them were supposed to

6 have participated in a military operation, and as such, having done so,

7 they were not -- they did not want to, nor did they want to -- they didn't

8 want to nor did they plan to participate in the attack against civilians.

9 In our opinion, the mens rea, that is, the mental element of the offence,

10 in this respect is missing.

11 And in conclusion of the preceding evaluation, the evaluation of

12 the personal conduct and the intention of these accused to participate in

13 an attack against the civilian population, required by your Tribunal's

14 case law, is lacking.

15 The Defence has objected on various occasions during the

16 proceedings against the attitude of the Prosecution, which would be to

17 draw general conclusions starting with specific facts which are limited.

18 Let us see what the extent and systematic character of this attack reduces

19 itself to.

20 The civilian population at issue was defined by the judgement;

21 that is, it was the civilian population of the municipality of Foca, and

22 there there was an armed conflict. The only event subject to debate

23 before the Trial Chamber and which was reviewed is the Serbian force

24 attack against the village of Mjesaja, mostly is like a part of that

25 village which is called Trosanj. The reason of that attack by the Serbian

1 forces and the justification was the presence of Muslim armed forces in

2 the village.

3 There was a military attack. There were several civilian

4 casualties during the attack. According to the consecrated expression,

5 they are what you call collateral damage. There are civilians who were

6 there. They were civilian casualties during a military attack. And I

7 emphasise that the proceedings before the Trial Chamber dealt, in respect

8 of the military actions, with the attack against the village of Mjesaja

9 and the part of that village known as Trosanj.

10 It is symptomatic, apparently, in our opinion that all of the

11 victims alleged to have been raped in that territory at issue, with one

12 exception, that is the exception is Witness FWS-598, that is from Mjesaja

13 and even from the part called Trosanj. According to the elements

14 presented during the proceedings, this is what was examined in order to

15 support the fact or the allegation that on the territory of the

16 municipality of Foca there was a widespread and systematic attack against

17 the civilian populations. The Defence position, therefore, is that there

18 was no attack which was widespread and systematic in respect of the very

19 population as defined by the Trial Chamber.

20 Even more, and I'm referring in this respect to paragraph 3.21 of

21 the Prosecution's brief, where the Prosecution notes that it is not clear

22 whether the Trial Chamber established the widespread character of the

23 attack but that the establishment of the systematic nature in respect of

24 Article 5 was -- no. That the claim was cumulative and not alternative.

25 In other words, the attack, the Prosecution analysis of paragraph 570 and

1 578 of the appeals judgement, there must be a widespread and systematic

2 nature. And from the moment that one would establish -- well, rather

3 starting from the point that -- with the attack it could have been either

4 systematic or widespread. That would be enough in order to find a basis

5 for applying Rule 5 -- Article 5 of the Tribunal.

6 The Prosecution pointed out that things were not really clear in

7 respect of that point, and the Defence believes that it would be logical,

8 if one wants to interpret reasonably the case law of the Tadic case, that

9 the attack must be widespread and systematic

10 Not trying to go as far as caricaturising things, one could say

11 that on several -- the fact -- one can just say that one villager, one

12 attack does not mean that there was a widespread attack or -- and that we

13 are faced with a behaviour which the Statute, Article 5 of the Statute,

14 that is, intends to sanction.

15 In the end, we are reduced in respect of noting the systematic and

16 widespread attack, reduced to carry out an exegesis, and that proves, in

17 our opinion, the difficulty that one finds in the appeals judgement in

18 respect of the taking into account of these conditions.

19 I now come, Mr. President and Your Honours, to the following

20 question according to the presentation which --

21 JUDGE JORDA: [Interpretation] Before you move to the next

22 question, Mr. Savatic, we are dealing with three points. I would like to

23 ask my colleagues whether as regards the first three points, before we go

24 on, in respect of what was said. I would like to know whether my

25 colleagues have any questions they'd like to ask any of you. You may be

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1 seated for the time being.

2 Let me turn to my colleagues and ask them whether they have any

3 questions they'd like to ask.

4 One of my colleagues would have a question. Judge Meron, did you

5 want to ask a question on one of the -- on some of the points that were

6 raised?

7 We'll take a break at 11.00.

8 Judge Meron, turn your microphone on.

9 JUDGE MERON: I apologise for my voice but I am fighting a cold.

10 I would like to start by thanking the counsel for their

11 interesting presentations.

12 Having listened to you today, I would like to know whether you

13 still maintain the position which is expressed, in the briefs

14 for Mr. Kunarac with regard to nexus with armed conflict which you

15 explained as follows: One of the basic questions is whether the relevant

16 facts could be perpetrated even if condition of armed conflict was not in

17 existence.

18 My question is whether you still maintain this position on

19 the nexus in light of your oral arguments today. I would like to hear

20 your answer, and I might have a follow-up question.

21 Thank you, Mr. President.

22 MR. PRODANOVIC: [Interpretation] Yes, Your Honour. What we said

23 in our motion we still adhere to.

24 JUDGE MERON: May I, Mr. President, ask a follow-up question?

25 Now, imagine, for example, that in a state of armed conflict a

1 number of soldiers enter a school in another country and shoot at

2 children. Compare this with the situation where a number of soldiers,

3 in time of peace, on furlough, on vacation from their barracks,

4 enter a school and shoot at children. Does this not

5 show that the same type of conduct, the same type of act could,

6 if perpetrated in time of peace be a common law variety crime

7 under the criminal law of the land, and if perpetrated in time of war

8 be a war crime? Could I have your comments

9 on that, because it would help the bench to focus on these issues.

10 MR. PRODANOVIC: [Interpretation] The problem when referring to an

11 armed conflict is that, Your Honours, we did not establish the existence

12 of an armed conflict. And the application of Article 5 is linked to the

13 existence of an armed conflict.

14 We do not challenge what you said. Both actions you mentioned

15 would be crimes, one perpetrated in wartime and another in peacetime, the

16 first being a war crime and the other a common crime, but to understand

17 the correct interpretation of Article 5, we cannot speak of a war crime if

18 it does not follow from the armed conflict. Because to be quite honest,

19 in our legislation, crimes against humanity committed in peacetime are

20 punished less severely than crimes committed during wartime and that is

21 the difference.

22 JUDGE MERON: And what is your position

23 with regards to the question of nexus under a different Article of the

24 Statute, Article 3, laws or customs of war?

25 MR. PRODANOVIC: [Interpretation] This is precisely the issue that

1 will be addressed by my colleagues in connection with Articles 3 and 5.

2 In our submissions, we expounded this, and the answer will be provided by

3 my colleagues in what they will say.

4 JUDGE MERON: Thank you very much.

5 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.

6 JUDGE SHAHABUDDEEN: Mr. Prodanovic, first a question of fact.

7 The presentation thus far seems to be this, that yes, there was an armed

8 conflict in Foca, but there was none in Gacko and Kalinovik. Now, I have

9 before me the judgement of the Trial Chamber, and I refer to paragraph

10 22. If you would have it before you, it will assist.

11 Midway in that paragraph, you will see a reference to the fact

12 that yes, there was an armed conflict in Foca, and then it goes on this

13 way in English at about midway:

14 "Between the end of June and the beginning of July 1992, Gacko

15 and its surrounding villages were attacked in the exact same manner. In

16 some cases, there was no fighting at all, such as in the village of

17 Trnovace and Trbusce south of Foca at the end of June 1992, in Kalinovik

18 in early August 1992."

19 So the trial judgement seems to be doing this: It says yes, there

20 was an armed conflict in Foca. It says yes, there was also an armed

21 conflict in Gacko. But it says no, there was no fighting in Kalinovik.

22 Are you challenging those findings?

23 MR. PRODANOVIC: [Interpretation] Your Honour, this was something

24 we did not establish, whether there was fighting in Gacko and Kalinovik,

25 and that is the point of our objection. We wanted to put questions in

1 this direction, but we were prevented from doing so. The reason was

2 relevance, the relevance of our questions.

3 To be quite clear, if some crimes of rape did occur, we wish to

4 prove that this was a common crime of rape not falling within the context

5 of the armed conflict. Therefore, that it was not a wartime. That is the

6 point we are trying to make.

7 JUDGE SHAHABUDDEEN: Let me ask you, as you are on your legs, and

8 more particularly because you're so very helpful to the Court, this

9 question: What is your reaction to the proposition that a close nexus

10 with the armed conflict has to be established in the case of an Article 3

11 crime but that it does not have to be established -- oh, I'm sorry. You

12 have a technical problem.

13 MR. PRODANOVIC: [Interpretation] Your Honour, there was a noise in

14 my earphones. Could you please repeat your question?

15 JUDGE SHAHABUDDEEN: What is your reaction to the proposition that

16 a close nexus with an armed conflict has to be established in the case of

17 an Article 3 crime but not in the case of an Article 5 crime. More

18 particularly that in the latter case all that needs to be established was

19 that there was an armed conflict in a jurisdictional sense?

20 MR. PRODANOVIC: [Interpretation] A similar question -- this is a

21 question similar to the one that was put before. We challenge that the

22 accused can be held responsible under two Articles for the same action.

23 And my colleagues will explain that our view is that both Articles cannot

24 be applied to one and the same action, so that an accused is held

25 responsible two times for the same act, once under Article 3 and once

1 under Article 5, and this is something that my colleagues will speak of at

2 greater length.

3 JUDGE SHAHABUDDEEN: My last question. I have the impression that

4 the trial judgement proceeds on this basis: It says, "Yes, there was an

5 armed conflict in Bosnia-Herzegovina, and that therefore it is not

6 relevant to consider whether there was in fact an armed conflict in Foca,

7 in Gacko, and in Kalinovik." What do you say about that?

8 MR. PRODANOVIC: [Interpretation] Your Honour, before the trial

9 started, we had long negotiations with our learned friends from the Office

10 of the Prosecutor, and we had to compile a list of agreed facts, and this

11 was the topic of our discussions. At the time, the accused Kunarac was

12 accused only for events on the territory of Foca. Later on, the

13 indictment was amended and other actions were charged against him. Then

14 the accused Kovac and Vukovic arrived, and we no longer spoke of the fact

15 of an armed conflict. We had no need to establish the existence of an

16 armed conflict on the territory of the municipality of Foca. We perhaps

17 should have discussed whether there was an armed conflict on the territory

18 of Bosnia and Herzegovina, because, quite honestly, although I live there,

19 I don't know whether all of Bosnia and Herzegovina was affected by the

20 armed conflict.

21 JUDGE SHAHABUDDEEN: One last question, if I may, would be this:

22 I ask you to focus on crimes against humanity under Article 5. Now,

23 perhaps my learned colleague Mr. Jovanovic might like to answer this. If

24 I may, Mr. Prodanovic, I would turn to Mr. Jovanovic on this question.

25 Suppose it were established, in the conceivable case, that: Look,

1 there was an attack on the civilian population. I understand you to be

2 raising a question as to whether the proof has to be of a widespread and

3 systematic attack. Suppose you're right. Suppose you're right on those

4 grounds and suppose those matters are proved, that there was an attack on

5 the civilian population and that the attack was both widespread and

6 systematic, and suppose it is, however, not proved that there was a plan.

7 Would you say there was a crime against humanity or not? All the

8 necessary elements were proved, with the exception of what you say should

9 be an element also, namely, proof of a plan. Would you say that a crime

10 against humanity was or was not established?

11 MR. JOVANOVIC: [Interpretation] Your Honour, I will tell you what

12 I think that happened at that moment. The reasons I put forward were not

13 my opinion of what happened and whether a crime against humanity had been

14 committed or not. My arguments concerned the standpoints taken up in the

15 judgement and the conclusions reached here. All these elements have to be

16 proved in order to speak of a crime against humanity. My personal opinion

17 perhaps may be different from the opinion expressed in the judgement, but

18 I, as a lawyer, am putting forward the case of the Defence, which differs

19 from the opinions expressed in the judgement, and that was what I spoke

20 of. When I spoke of a plan, I was referring to what is stated in the

21 judgement, the grounds given in the judgement, and the conclusion that all

22 these elements had to exist, and I simply stated that there is no proof of

23 the existence of one of these elements.

24 JUDGE SHAHABUDDEEN: I understand your position as Defence counsel

25 perfectly, but I ask you also to understand the position of a member of

1 the Bench. You are making a proposition based on a legal theory, and all

2 I'm trying to do is to test the validity and the limits of that theory by

3 asking the question which I've put to you. I take it that your answer is

4 the one that you have given.

5 MR. JOVANOVIC: [Interpretation] Yes, Your Honour.

6 JUDGE SHAHABUDDEEN: Thank you.

7 JUDGE JORDA: [Interpretation] One point, Mr. Prodanovic. It's a

8 factual point for my own clarification. It seems to me that you live in

9 that region. Are these municipalities very far from one another?

10 MR. PRODANOVIC: [Interpretation] No, Your Honour. They share

11 common borders. They are neighbouring municipalities.

12 JUDGE JORDA: [Interpretation] They are contiguous, then? The

13 municipality notion is really an administrative one; is that correct?

14 MR. PRODANOVIC: [Interpretation] Yes. Yes. A municipality covers

15 a certain surface area, and has a town, which is the centre of the

16 municipality, the administrative centre, and then it has villages.

17 JUDGE JORDA: [Interpretation] The two villages, Gacko and

18 Kalinovik, they were part of the Foca municipality or they were in

19 separate municipalities?

20 MR. PRODANOVIC: [Interpretation] Your Honour, these are

21 independent municipalities. For you to understand better, let me say that

22 before the war, Bosnia and Herzegovina had 108 municipalities in total,

23 and Foca, Gacko, and Kalinovik were among these. They are separate

24 municipalities.

25 JUDGE JORDA: [Interpretation] Yes, but they're contiguous; is that

1 correct? They border on one another, they're very close?

2 MR. PRODANOVIC: [Interpretation] Yes.

3 JUDGE JORDA: [Interpretation] Therefore, my last question is to

4 ask you whether the notion of an armed conflict is something you would

5 apply differently if it were a conflict for entire Bosnia, or just one

6 municipality, or for a part of a municipality, or even for a part of a

7 village. Do you split the notion into parts? Do you consider that

8 one -- in your defence, the notion of an armed conflict must be

9 specifically located in the location where the crimes were said to have

10 been committed? Is that your position?

11 MR. PRODANOVIC: [Interpretation] Your Honour, my interpretation of

12 Article 5 is such that an armed conflict has to exist in the location

13 where a crime was committed. As I interpret it, for there to be a crime

14 of rape as a war crime, there must be an armed conflict and a systematic

15 and widespread attack. If these elements are missing, then it is a common

16 crime of rape. That is, at least, my interpretation of the provisions of

17 Article 5 of the Statute.

18 JUDGE JORDA: [Interpretation] Judge Guney.

19 JUDGE GUNEY: [Interpretation] I have a question for

20 Mr. Jovanovic. In the context of an existence of an armed conflict and

21 the nexus between the conflict and the criminal conduct, which you wanted

22 to deal with, a pre-established plan, which is sine qua non element for

23 the existence of criminal conduct. Do you believe that? I'd like to have

24 your opinion on that. Do you believe that?

25 MR. JOVANOVIC: [Interpretation] Your Honour, I personally believe

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1 it is not necessary to be a preconceived plan worked out in detail as to

2 what would be done, how, who would implement what part of the plan, and so

3 on. Things can take place in a chaotic manner. Things can take place in

4 several ways. But the very fact that something happened does not mean at

5 the same time that it is part of a plan, and yet here we are speaking of a

6 plan to carry out certain acts in order to expel the non-Serbian

7 population from a certain territory. Certainly, I think there is no plan

8 which would cover every element of everybody's behaviour and activity, but

9 there must be a general direction, a general goal, something that includes

10 everybody. Someone has to be in command of all this. Someone has to

11 implement it. Someone has to report on what he has done. We must have

12 some elements of a plan in order to speak of a plan. The very fact, I

13 repeat, that something happened does not in itself mean that it happened

14 because there was a plan.

15 JUDGE JORDA: [Interpretation] Thank you, Mr. Jovanovic. I think

16 there are no further questions.

17 Yes. What is your name again? I believe you wanted to speak.

18 Did you want to take the floor? Kolesar.

19 MR. KOLESAR: [Interpretation] Your Honour, yes, my name is

20 Kolesar. I will try to assist, if I may, in connection with what we are

21 now discussing. In our work with the OTP in the pre-trial proceedings, we

22 agreed on an uncontested fact, and that was that there was an armed

23 conflict between the ethnic Serbs as a group and the ethnic Muslims as a

24 group on the territory of Foca. During the trial, the Trial Chamber did

25 not seek to establish this, nor was this further discussed. That is one

1 point.

2 Another point is that the armed conflict, within the confines of

3 the territory of Foca, between the two ethnic groups, is one thing, and

4 another thing is the effort to prove that there was a cause and effect

5 relationship between this and the actions of the accused as represented by

6 the Prosecution. I don't know whether I have assisted or not.

7 JUDGE JORDA: [Interpretation] Yes. Yes, you have, Mr. Kolesar.

8 It is 11.00. We'll take a break and we will resume at 20 after

9 11.00. The Court stands adjourned.

10 --- Recess taken at 11.00 a.m.

11 --- On resuming at 11.25 a.m.

12 JUDGE JORDA: [Interpretation] We'll resume the hearing now.

13 Please be seated. Have the accused brought in.

14 Thank you. We will resume and continue until for about an hour.

15 We have one of the accused who is not here. Yes. We have an accused

16 missing.

17 Very well. Please be seated.

18 We will resume for about an hour. I give the floor now to

19 Mr. Savatic again, I believe.

20 MR. SAVATIC: [Interpretation] Thank you, Mr. President. I now

21 come to the question of cumulative charges both in respect of what is

22 called cumulative charging in English inter-article -- inter-article,

23 which in French could be said as vertical charging, that is, being accused

24 and convicted for the same crime on the basis of two provisions of the

25 Statute, that is, Article 3 and Article 5 of the Statute. And there's the

1 issue of cumulative horizontally, that is, intra-article, as that is the

2 accusation and the conviction for two distinct crimes on the basis of the

3 same conduct in application of Article 5 and/or Article 3 of the Statute.

4 These issues have great -- with great legal significance were

5 discussed in the submissions from pages from 195CF, and from -- up to page

6 101 in the briefs. The Prosecution deals with them on pages 139 to 149 of

7 the -- of its progress, and the response is on 6.54 on 55. And I'm

8 referring to the reply referring to Kovac and Kunarac, those accused.

9 In respect of principle, there is case law from the Tribunal in

10 the Delalic case, or that is the Celebici case, and I am referring to the

11 Appeals Chamber judgement of 20 February 2001, and particularly paragraphs

12 412 to 413 of that judgement. I have them in English, and I think it

13 would be useful to quote the most relevant passages in respect of the

14 question of cumulative charges.

15 The Chamber decided that multiple criminal convictions: [In

16 English] "... under different statutory provisions but based under the

17 same conduct are permissible only if each statutory provision involved has

18 a materially distinct element not contained in the other."

19 [Interpretation] And further, and this is now the test that the

20 Trial Chamber must apply instruct of the various -- as to whether they're

21 material facts or not: [Previous translation continues] ... [In English]

22 "... of the principle that the conviction under the more specific

23 provision should be upheld."

24 [Interpretation] The Defence also considers, in terms of precedent

25 and principle, that the Furundzija case is significant for this case

1 insofar as it establishes that any act of rape is necessarily an outrage

2 on the victim's dignity, and the Defence considers that insofar as that is

3 concerned. The case law of the Tribunal has allowed it ideal concurrence

4 of offences and allowed for the principle of subsumption of the lower

5 penalty in respect of the higher penalty or the principle of lex consumens

6 derogot lege consumptum.

7 Vertical cumulative charging, that is, application of Article 5

8 and Article 3, in the reasoning which precede the conclusions respect of

9 cumulative charging in the Delalic case was reviewed by the Tribunal and

10 the question of the concurrence of offences in various legal systems. It

11 was a question of the situation in Germany, in Zambia and in the United

12 States. Here I'm referring to the reasoning which precedes the ratio

13 decidenda on that point in the Delalic case.

14 The principle according to which the special provision takes

15 precedence over a general provision, that is, lex specialis derogat lex

16 generalis seems to have been -- not to have been taken into account in

17 that reasoning, and the Defence position is that the application of that

18 principle on the question of cumulative charging and convictions was not

19 reviewed in the Tribunal's case law as far as we can see.

20 However, one of the principles, the fundamental principles in all

21 criminal law, is that there is no strict interpretation -- rather, that

22 criminal law does have a strict interpretation, and because without pain,

23 there can -- without crime, there can be no penalty. That is nullum

24 crimen sine lege, and that the interpretation, which is a broad one, of

25 the legal qualification -- characterisation should be excluded.

1 Therefore, logically, from this principle, as a basic document in

2 a legal institution, such as is the Statute of this Tribunal, it should be

3 related to the -- with the same provisions which -- stating that one must

4 have to have more specific -- take specific examples rather than general

5 ones. And what I mean by this is that the Statute contains a provision

6 specifically referring to those crimes ascribed to the accused, that is,

7 Article 5, crimes against humanity, according to which the International

8 Tribunal established that it will try persons responsible for the

9 following crimes when they were committed during an armed conflict with

10 international character, or an internal conflict, and directed against a

11 civilian population of any type, that is, the following crimes which

12 appear under (C), enslavement; (F), torture; and (G), rape.

13 Assuming, therefore, that it was either established that the

14 application -- that the -- this provision must be applied more than any

15 other. And the application which is put forward by the Prosecution of the

16 test which is shown in the Delalic case law seems to us - I say

17 mainly - it seems out of place in this case. It would have been enough to

18 apply the provision -- special provision. Subsidiarily, in any case, it

19 seems to us to be incorrect, that is, the application of that text as done

20 by the Appeals Chamber, because so long as the connection, the nexus

21 between the act and everything which is required under Article 4, that the

22 widespread and widespread nature of the case against the civilian

23 population, which is required by Article 5, which were analysed by the

24 decision as a distinct material element in the appeal, this necessarily

25 implies that there was an armed conflict, and the terms "armed conflict"

1 appear in Article 5.

2 I will perhaps get back to the question which was raised a little

3 while ago by His Honour Judge Meron; that is, the position of the Defence

4 in this case is that there -- in this case, for the facts which have been

5 ascribed to the accused, there are no distinct material elements in

6 respect of the analysis of the two provisions, and that the provision, the

7 special provision, that is, Article 5, which defines expressly the crimes

8 charged, which must be used.

9 The Defence position in respect of the application of these

10 principles in this case is, therefore, that if the Prosecution can put

11 forward charges through vertical charging, that is, accused for the same

12 crime on the basis of two provisions, the conviction on that basis is not

13 possible. Most of the charges - I'm referring now to the judgement, 4 to

14 11 of the judgement, where they are listed - most of the charges against

15 the three accused rely on this vertical cumulation and were done on the

16 basis of Article 3 and also of Article 5.

17 We therefore believe, principally, that the decision which must be

18 set aside because the law was not properly applied, the Defence -- one

19 cannot analyse this decision which is being appealed whose reasoning, on

20 the basis of which the Trial Chamber ruled - that is, did it apply Article

21 3 or Article 5 - and subsidiarily, or alternately, if -- to know whether

22 your Chamber should consider that the reasoning -- or, that is, that's the

23 reasoning of the first decision can be followed, and therefore we are

24 asking that all the counts be set aside in which guilt was established on

25 the basis of provisions other than Article 5, that is, special provisions

1 in this case.

2 As regards the issue of horizontal cumulative charging, the

3 situation where the Prosecution -- where the accusations or the charges

4 and the convictions for two distinct crimes are requested on the basis of

5 a single criminal conduct in application of Article 3 or -- and/or Article

6 5, the Defence's position is that neither the charges nor the conviction

7 are possible in this way because it would be shocking for the same conduct

8 to be able to lead to more than one conviction.

9 We are therefore dealing with the idea of a situation where a

10 single conduct would constitute several offences. According to some

11 law -- this is expressly mentioned in criminal law. In Belgian law, one

12 speaks about an ideal concurrence of offences, and I'm referring to Rule

13 65 of the Belgian Code: "When a single crime constitutes several

14 offences, the heaviest, most severe penalty will be the only one which is

15 pronounced."

16 According to the Delalic case law, an analogous situation can be

17 found in German law and in the United States as well. The more serious

18 offence subsumes the less serious offence. This is, as it were, criminal

19 policy which attempts to set aside any risk of two convictions for the

20 same crime, and of course this concern is -- falls into the concerns of

21 the case law of the Trial-- of this Trial Chamber. It was affirmed in the

22 Delalic case law:

23 [In English] "An accused's conduct may legitimately be legally

24 characterised as constituting different crimes would not overcome the

25 fundamental principle that he should not be punished more than once in

1 respect of the same conduct."

2 [Interpretation] In the Delalic case, Defence counsel was

3 confronted to a problem which he put forward in the hearing, saying that

4 the same conduct which constituted two or even more convictions, but in

5 the face of a Statute which does not really define all the different

6 distinct offences, he was not in a position to put forward the way that

7 this principle of a subsumption should be used. He could not define

8 the -- what was the greater sanction which should subsume the lesser one.

9 And this is why, according to the Delalic case laws, there must be a test

10 to determine in order to authorise or not to authorise the cumulative

11 charging, that is, to know whether the behaviour ascribed to -- or rather,

12 the offences ascribed to the accused on the basis of the same conduct have

13 a distinct material element or not.

14 In this case, the Trial Chamber, in the feeling of the Defence,

15 erroneously applied the test of the Delalic case law. The accused Kunarac

16 and Vukovic were convicted on the count of rape and of torture on the

17 basis of the same conduct, that is, count 1, 2, 3, 4, 11, and 12 for

18 Kunarac, and counts 33, 34, 35, 36 for the accused Vukovic. The Defence,

19 however, apparently did clearly put forward the idea that torture requires

20 the intention of the person to cause physical or mental suffering and that

21 the proof of that material distinct element of torture in respect of the

22 offence of rape was not provided by the Prosecution. Rape, in this case,

23 subsumes, the crime of torture.

24 The accused Kovac was convicted for the count of enslavement,

25 outrage on personal dignity, and rape for the count which is the same

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1 having to do with the same people. I'm talking about count 22, 23, 24,

2 and 25.

3 The Defence of Kovac for -- was able to present an argument,

4 however, that according to the Furundzija case law, rape necessarily

5 constituted an outrage on personal dignity and therefore subsumes a

6 distinct charge of, that is, an attack on personal dignity and that

7 enslavement is theoretically motivated by the desire for having control

8 over a person's sexuality and that enslavement subsumes rape.

9 This principle was also consecrated in specific laws, and I go

10 back again as examples to Article 65 of the Belgian Criminal Code

11 according to which when different offences are being tried by the same

12 Judge and constitute the successive and continuous manifestation of the

13 same criminal intent, the greater penalty will be the only one which is

14 pronounced.

15 We therefore consider that insofar as the Delalic test was

16 erroneously applied by the Appeals Chamber and that the material and

17 distinct elements of an offence in relation to one another was not

18 demonstrated, that the decision errs in law and must therefore be set

19 aside for errors of law.

20 As a general conclusion in respect of this cumulative charging and

21 conviction question, the Defence also has questions about the

22 appropriateness of a test which could confirm the distinct charges that

23 which could, I repeat, could confirm the charges for the same facts

24 knowing already that the Tribunal is careful that there should not be two

25 convictions for the same acts. And it seems to us that the Judge in

1 this -- these proceedings, having a great deal of power already, in order

2 to fit the sanction to the requirements of a Statute which does not state

3 them clearly could also carry a very creative progress for this and would

4 set the basis for this issue once and for all by opting for one criminal

5 characterisation which would subsume the others, if not by the principle

6 of the greater penalty, at least by the characteristics of a criminal

7 conduct which subsumes the others. In other words, the Defence is

8 convinced that the practice of the Tribunal must lead ultimately to

9 application of the principle lex consumens derogat legi consumptae.

10 I have said what I have to say, and I thank you for listening to

11 me.

12 JUDGE JORDA: [Interpretation] I thank you.

13 Are there any questions that the Judges would like to ask?

14 Judge Schomberg.

15 JUDGE SCHOMBERG: Thank you, Mr. President. One question.

16 In principle, of course, one can agree with your approach, but I

17 have one question. Do you really believe that, for example, as regards

18 the relationship between rape and torture a general answer can be found or

19 doesn't it depend on the facts established in a single case, and wouldn't

20 it be the correct test, in any case, to find out whether there is an

21 additional violation of additional protected rights of the alleged

22 victims?

23 MR. SAVATIC: [Interpretation] I believe that application of the

24 test as put forward in that manner would necessarily imply questions about

25 the subjectiveness -- subjectivity of the motivation of the agent in order

1 to try to determine really in psychological terms what was the person's

2 preponderant motivation, that person committing a rape. Does the agent in

3 that situation also have the intent to cause physical suffering, mental

4 suffering which is a constituent element of torture?

5 For me, I don't think that the text -- the test can be applied,

6 because it does not -- unless one's talking in theoretical terms. One

7 does not allow us really to probe the subjective intention of the

8 perpetrator. The analysis could be done in terms of the materiality of

9 the facts if we are in the presence of a fact for which there is no

10 distinct torture element, hypothetically distinct from other elements

11 which attach to the sexual act.

12 I think that unquestionably, rape subsumes torture.

13 Aside from the sexual act, if there are other elements which are

14 material, factual, which would constitute torture, in that case, I think

15 we could speak about distinct offences. But in this case, the Defence is

16 really speaking of a strictly identical conduct which constitutes two

17 separate offences, rape and torture. One is a material fact. And I thank

18 you.

19 JUDGE JORDA: [Interpretation] I have a question I'd like to ask

20 before we move on.

21 First in terms of theory. In your defence, do you put into

22 question the principle of the test which was raised by -- which was set

23 forth by the Tribunal in the Celebici case or do you want to add something

24 to that in theoretical terms?

25 MR. SAVATIC: [Interpretation] Well, that is my second intention,

1 Mr. President. We consider that as things stand now in respect of the

2 basic documents, that is the -- the Statute now. I think that -- we feel

3 that this test is absolutely indispensable. We consider that what we're

4 doing in this case is the analysis of the application of the text as it

5 was done by the Trial Chamber, and our intention, therefore, is to

6 supplement to that test. We're not putting it fully into question because

7 failing a catalogue -- a catalogue of penalties which would allow to have

8 the greater penalties subsume the lesser one, that test, in our opinion,

9 seems to be necessary.

10 JUDGE JORDA: [Interpretation] Thank you. Second question,

11 factually now.

12 If we, following your reasoning, I believe that you must prove to

13 the Chamber that the conduct of the person or persons you are defending

14 had as a single purpose sexual satisfaction. I suppose that's what you're

15 trying to demonstration -- to demonstrate, that there was no attempt to

16 torture or to commit acts other than the sexual satisfaction, that that

17 was the single and only purpose.

18 MR. SAVATIC: [Interpretation] Yes, that is our purpose. That is

19 our position.

20 JUDGE JORDA: [Interpretation] And you consider that you were to

21 demonstrate it or you think you have already demonstrated it.

22 MR. SAVATIC: [Interpretation] We think that in the cases that we

23 have referred to, I have mentioned what has been developed to a great

24 extension. In proceedings, we feel that we have demonstrated that.

25 JUDGE JORDA: [Interpretation] Thank you. Very much. It's very

1 clear to me now.

2 If there are no further questions, I think -- no. Excuse me.

3 Judge Shahabuddeen. Pardon me.

4 JUDGE SHAHABUDDEEN: Mr. Savatic, I was interested in your

5 response to Judge Schomberg's question. In the course of your response, I

6 believe you said that rape subsumes torture. I wrote those words.

7 Now, is that necessarily so? Judge Schomberg put to you the

8 hypothesis under which one would have to wait until the facts were

9 ventilated.

10 Now, torture, I believe it is recognised and agreed, involves the

11 prospect inter alia of a confession being obtained, among other things.

12 Now, it is possible to obtain a confession otherwise than by sexual

13 penetration. On the other hand, rape involves some kind of penetration,

14 and that penetration need not visualise the obtaining of a confession.

15 How then is it possible on that hypothesis to say that rape

16 subsumes torture? Torture may involve the obtaining of a confession,

17 which is not necessarily the objective in rape. Rape, on the other hand,

18 involves penetration. Penetration is not involved in torture, not

19 necessarily involved in torture, and it does not lead to the obtaining of

20 a confession.

21 Suppose facts pertinent to that model were established. What

22 would you say?

23 MR. SAVATIC: [Interpretation] Your Honour, your question forces us

24 to go back to the very definition of the crime of torture. The

25 hypothesis, I repeat, hypothesis which would lead to the Defence's --

1 which led to the defences to the condition -- positions which apply to

2 what you've just mentioned would consider also torture not only as

3 behaviour which would lead to obtaining information, a result, a purpose,

4 or a confession.

5 It seems to us -- perhaps these are two different approaches in

6 respect of the definition, but in terms of international criminal law and

7 different approaches which may be possible, we are working with the idea

8 of torture - this is a theory - which could be completely gratuitous and

9 not have any particular purpose that it seeks to obtain, like an

10 acknowledge or a confession.

11 One might therefore conceive apparently of a case of the agent

12 torturing somebody, even through a sexual act, not in order to obtain a

13 result through that torture but simply in order to cause gratuitous

14 suffering. That is not the case here. The position of the Defence, and

15 that's what I believe that we are demonstrating, is that the only

16 motivation of the agent was the sexual act, and form that fact, starting

17 from that fact, it does not allow one to do things. This is of a distinct

18 offence, which would be torture, and that the facts would be reduced

19 simply to an act of rape.

20 JUDGE JORDA: [Interpretation] Thank you. Judge Meron.

21 JUDGE MERON: I thank the counsel for this very interesting

22 discussion of cumulative charging in the context of rape and torture.

23 Perhaps after we have heard the Prosecution on that question I could

24 return to the subject and ask the Prosecution a question which I have with

25 regard to that. But you and your colleagues have several times today

1 mentioned the underlying crime in this case, the crime of rape, and

2 referred to it as a common law crime.

3 I did ask already one question with regard to the nexus with armed

4 conflict, showing that in fact it is the context or the conditions which

5 sometimes give – characterisation of a crime.

6

7 Assume for a moment, because your answer to those points was that

8 you do not accept there was an armed conflict, but

9 let us assume just for a moment - the Bench will deal with that question

10 in due course - that there was an armed conflict.

11 The question that I would like to ask you specifically with

12 regard to Foca and the circumstances that prevailed there at the time.

13 Are you really suggesting that in the city of Foca,

14 under ordinary pre-war circumstances, three men could have rounded up a

15 large number of Muslim women, held them in known locations, sexually

16 abused and raped them, assuming the facts are that way, without anyone

17 from the community, from the authorities, from their families intervening?

18 This is my question.

19 MR. SAVATIC: [Interpretation] I understand your question, Your

20 Honour. I understand your question. We believe that we have answered or

21 at least given the elements of the response, both in our written

22 submissions and at the hearing. At some point, we mentioned the fact that

23 the Prosecution in no way has proved parallelism, coexistence of the facts

24 which you mention hypothetically with the carrying out of military

25 operations.

1 In other words, it has been asserted that these facts occurred,

2 but in our opinion, it has not been -- the Prosecution has not

3 demonstrated that the facts coincided or corresponded to the military

4 operations.

5 JUDGE MERON: I wish you would have given us your comment

6 on my question, whether those situations, those things as alleged, the

7 facts as alleged could have occurred in a peacetime context in the

8 municipality of Foca, with such a large number of people involved, both

9 as actors and as victims, and particularly taking into account the fact

10 that those things were carried out fairly openly.

11 MR. SAVATIC: [Interpretation] The Defence had the opportunity in

12 its procedural documents to return to the characterisation of factual

13 materiality of the situation. The Defence position is that as regards the

14 assembling that you're referring to, there is -- it is true that at some

15 point in the public buildings of the town of Foca there was an assembling

16 of the Muslim population but that the criminal intent of that assembling

17 has not been demonstrated.

18 We believe it was to a great extent demonstration that those

19 populations were frequently assembled in that way in order to be taken to

20 the liberated territory, and one should not see in that, we believe,

21 anything else.

22 JUDGE MERON: Thank you.

23 JUDGE JORDA: [Interpretation] Thank you. If there are no further

24 questions, I believe it's now Mr. Kolesar who is going to speak about

25 legal issues relating to application of the Statute and the Rules.

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1 MR. KOLESAR: [Interpretation] Yes, Your Honour. Thank you.

2 I will speak on behalf of all of the Defence counsel and discuss

3 our joint position concerning legal issues relating to implementation of

4 the Statute of the Tribunal for the Former Yugoslavia, and I will also

5 mention some Rules of evidence and procedure and also charging based on

6 Article 3 and 5, but I will not cover the same topics covered by my

7 distinguished colleague Mr. Savatic. I will also touch upon the

8 conditions of -- conditions of pronouncing a sentence before this Tribunal

9 and the flaws we see within that process.

10 The Prosecution, in -- the Defence believes that Article 3 of the

11 Statute cannot be interpreted in the practice -- in the way that it has

12 been accepted here so far and that has been implemented in the Tadic

13 appeals decision. This Article prescribes but does not limit itself to

14 the violations of customs and laws of war, but we believe that the sense

15 of this Article needs to be interpreted in such a way as to protect the

16 property and proper use of permitted weapons. So Article 3 of the Statute

17 does not protect the individual right of physical persons but the rights

18 of warring parties with a group being the protected element. So with

19 respect to all of the individual physical persons, Article 3 cannot be

20 applied in any circumstances, regardless of whether the conditions

21 required are existing or not, and this would be the same whether we see

22 Article 3 as a specific or general rule.

23 Defence believes that in order to believe that all of the elements

24 of a Rule exist, the same would apply to Article 5 of the Statute but not

25 exclusively to Article 3. The Trial Chamber in this case, in paragraph

1 406 and 407 of the judgement, took a position that it was enough to accept

2 the general Article 3 of the Geneva Convention as part of the customary

3 law and that it was sufficient to implement Article 3 of the Statute and

4 that the crimes attributed to the accused fulfilled the requirements for

5 the responsibility under Article 3. And in paragraph 407, the Trial

6 Chamber listed these conditions, and I am not going to repeat them now.

7 The Defence believes that it has proved that in order to apply

8 this test to determine whether an act of the accused can be viewed as

9 something covered by Articles of the Statute have not been fulfilled, so

10 therefore the provisions of the Statute cannot be applied at all. We're

11 now talking about provisions of Article 3 of the Statute. And this means

12 that there cannot be cumulative conviction pronounced in this case.

13 The Trial Chamber, in its judgement, referred to the decisions of

14 the Appeals Chamber in Aleksovski case. That is a case IT-95-14-1-A,

15 dated 14th March. It also referred to the Prosecutor versus Tadic case,

16 dated 2nd October, 1995, and also the case Prosecutor versus Delalic,

17 IT-96-21-A, judgement pronounced on the 20th of February of 2001, and it

18 specifically referred in paragraph 420.

19 The Defence would like to bring to your attention the decision in

20 Delalic case, especially paragraphs 421 through paragraph 427. The

21 Appeals Chamber in this case held that in order to be fair to the accused

22 and upholding the position that only individual acts justified the

23 accumulation, such accumulation could be allowed only if each statutory

24 provision referred in the indictment contained distinctly different

25 elements which were not contained in other provisions. The Appeals

1 Chamber concluded that such evaluation had to take into account all of the

2 elements of criminal offences. If this test has not been satisfied, then

3 the Trial Chamber has to decide for which crime it was going to convict

4 the accused, bearing in mind that such conviction has to pertain to the

5 more defined offence.

6 The Statute of the International Tribunal for prosecution of

7 persons responsible for grave violations of provisions of international

8 law during the conflict in the former Yugoslavia was adopted on the 23rd

9 of May, 1993. However, this Statute did not prescribe the sentences, the

10 punishment for individual crimes, and this flaw has brought us to a

11 situation where the Tribunal has very wide discretionary rights because

12 the punishments have not been prescribed by the Statute. This approach

13 has brought us to a situation where we do not know which prescribed crime

14 is considered a greater crime, and this has also led to a situation where

15 a crime of rape entailed a graver punishment than a multiple torture in a

16 concentration camp.

17 We believe that this violates one of the basic principles of

18 criminal law which is recognised in the entire world, nullum crimen sine

19 lege, nulla poena sine lege. Defence believes that in order to have a

20 fair trial, it is necessary to treat all of the accused equally. We must

21 know which acts are considered to be grave violations of the international

22 humanitarian law, and it is also important to know which punishments will

23 fall off, will stem from these crimes. Only if this is provided, the

24 accused will have equal treatment before this Tribunal and the

25 jurisprudence of this Tribunal will be widely recognised and respected.

1 The Defence believes that it is very important not only because of

2 the accused in this case but also in a wider context, looking into the

3 future. The work of this Tribunal, its case law, its judgement, will be

4 studied in the years to come, and all of us here are lawyers, and if we

5 wish to be legalists, then we need to point out the flaws in the

6 procedure, whether it pertains to the Statute or the proceedings here

7 before the Tribunal.

8 The Rules of Procedure and Evidence were adopted in March of 1994,

9 and these Rules have been changed and amended some 20 times. Rule 6

10 provides for the methods of amendment of the Rules, and the Rules were

11 amended three times in the beginning of 2001, and this brought to a legal

12 uncertainty, both for the accused and all of other parties in the

13 proceedings, and it also brought a situation where there was serious

14 violations of the procedure.

15 "An amendment shall enter into force seven days after the date of

16 an official Tribunal document containing the amendment but shall not

17 operate to prejudice the rights of the accused or of a convicted or

18 acquitted person in any pending case."

19 I have just read to you Rule 6(D) of the Rules of Procedure and

20 Evidence.

21 This case was concluded on the 22nd of November, 2000, and at that

22 time the Rules of Procedure and Evidence that was in force was the one

23 dated 26th of June, 2000. So the Rules which were in force at that time

24 and which, at least the Defence believes, had to be applied when

25 deliberating the verdict and the sentence, based on Rules 6(D) and 101(C),

1 this Rule prescribes that the Trial Chamber has to state whether the

2 sentences will be consecutive or concurrent.

3 The Trial Chamber has a discretionary right to decide whether the

4 sentences will be consecutive or concurrent, but at that time the Trial

5 Chamber had an obligation to pronounce an individual sentence for each

6 crime for which the accused was found guilty. The Trial Chamber did not

7 follow this Rule. It applied the Rules of Procedure and Evidence which

8 entered into force on the 19th of January, 2001, and they did so by

9 applying the Rule 87(C). They also accepted some of the holdings from the

10 Rwanda Tribunal, in our view, that jeopardised the rights of the accused,

11 and it put them at a disadvantage when compared to other accused whose

12 sentences were pronounced in accordance with the Rules of Procedure and

13 Evidence which were in force on the 26th of June, 2000.

14 The Trial Chamber, in view of the Defence, made an error because

15 it needed to apply the Rules of Procedure and Evidence that were in force

16 when the trial was under way. It is unacceptable because the sentences

17 that were pronounced by the Trial Chamber could not have been pronounced

18 if the old Rules of Procedure and Evidence were in force.

19 We believe that another error took place. When counting the time

20 spent in detention, in accordance with the Rule 101(C), the Trial Chamber

21 decided that the sentences will start running from the day of the

22 judgement, which is 19th of February, 2001. The Trial Chamber, whether it

23 applies the Rule 101(C) or Rule 102, which in our view was inappropriate,

24 or whether it is applying the Rule 101(D) and 101(ii) [as interpreted]

25 from the previous version, so regardless of which Rule it applied, the

1 Trial Chamber had an obligation to take into account the time the accused

2 spent in detention waiting for the trial to begin, and during the trial.

3 It also had an obligation to determine when the accused were arrested,

4 which this Trial Chamber did in this case, but it should have taken all of

5 this into account and reduced the sentence by that time that they had

6 already spent in detention.

7 There was another provision from the Rules of Procedure and

8 Evidence that had a direct influence on the proceedings and did not allow

9 the Trial Chamber to establish the factual situation and also to determine

10 whether a fact has been proven beyond a reasonable doubt or not. All of

11 this led us to a situation where we could not claim that the accused were

12 granted their right to have a fair trial.

13 We are now talking about the Rule 96, which discusses the evidence

14 in cases of sexual assault. The Defence would like to point out that we

15 uphold the view that in order to respect the identity of the victims,

16 which suffered terrible pain, and this also includes the victims of sexual

17 offences, we also believe that these witnesses should be protected in a

18 special way. However, the Defence believes that order to be just - and

19 justice is something that should be viewed above everything else - that

20 establishment of truth should be above all other principles. It is

21 inhuman to subject the victim to the same pain and suffering before the

22 Tribunal, but it is also unjust not to establish the truth and convict

23 somebody if the truth has not been established absolutely and if it has

24 not been proven beyond a reasonable doubt that that person had in fact

25 committed the crime charged with.

1 The trial of Kunarac, Kovac, and Vukovic is the first trial of

2 this nature in modern history, and it is indisputable that this case will

3 be studied by legal historians and other experts. So the Defence has an

4 obligation to point out all of the flaws because of these reasons.

5 We saw, during the examination of the alleged victims of sexual

6 offences, a lot of errors were committed. The Defence was not allowed to

7 challenge or to probe a lot of factual matters, and when asked by the

8 Defence counsel, a lot of these witnesses answered with "I don't know" or

9 "I don't remember," avoiding specific answers. Their testimony was not

10 specific. It was contradictory as far as the important elements are

11 concerned, and the Defence was not allowed to try to establish the truth

12 because the Rule 96 was applied.

13 In order to illustrate this, the Defence counsel of Mr. Kovac, on

14 the 22nd of November, 2001, in his closing arguments, gave a detailed

15 account of the testimonies of victims who testified against Mr. Kovac, and

16 he pointed out to a number of contradictory statements which apparently

17 the Trial Chamber believed to be true and grounded their decision on it.

18 The conduct of the witnesses in this case, in view of the Defence, implies

19 that the decision-maker has to find a proper manner of applying the Rule

20 96. So in order to, on the one hand, adequately protect the victims but,

21 on the other hand, allow the trial to be carried out in a fair and just

22 manner, so that all parties can be satisfied in the end.

23 Your Honours, distinguished Judges, this brings me to the end of

24 my presentation.

25 JUDGE JORDA: [Interpretation] Thank you, Mr. Kolesar. Let me turn

1 to my colleagues and ask if they have any questions.

2 Judge Shahabuddeen.

3 JUDGE SHAHABUDDEEN: Mr. Kolesar, I was interested in what you had

4 to say on the subject of the competence of the Court, the Trial Chamber,

5 imposing global sentence. I believe it is the Prosecution case, as I have

6 gleaned it from their written answer, that the new Rule to which you

7 referred only codified a previously existing power to impose a global

8 sentence so that the passing of the new Rule could not give rise to any

9 question of prejudice being caused by it to any party. You will see that

10 in the Rule 87(C), to which I think you meant to refer, said towards the

11 end:

12 "Unless the Trial Chamber decides to exercise its power to impose

13 a single sentence reflecting the totality of the criminal conduct of the

14 accused."

15 That's presupposed that the Judges, in passing that Rule, were

16 reflecting their understanding that a power to impose a single sentence

17 always existed, so that no question of prejudice could arise. Look at it

18 this way: Article 15 does give a rule-making power, but I believe that

19 power has to be exercised consistently with the prescriptions of the

20 Statute. Now, would it be a tenable proposition that the Statute left the

21 matter open as to whether a Trial Chamber would have power to impose a

22 single sentence or multiple sentences only?

23 If the Statute conferred a power to impose both types of

24 sentences, what would you say about Rules made in exercise of the

25 rule-making power which perpetive, if they did, to remove the statutory

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1 power to impose a global sentence? Would you say a question of validity

2 would then arise if the Rules did that? On the other hand, would you say

3 that the Rules as they stood prior to this amendment were only concerned

4 with that limb of the Statute which conferred a power to pass multiple

5 sentences?

6 THE INTERPRETER: Microphone, please.

7 MR. KOLESAR: [Interpretation] Your Honour, I absolutely agree that

8 Article 15 of the Statute provides for the procedure of adopting the --

9 and amending the Rules. What the Defence wanted to point out is the

10 following: The Defence feels that it is not appropriate and proper in the

11 legal sense for a body, a Tribunal that is authorised to try under the

12 Rules, and this is the same body authorised to adopt the Rules. We feel

13 it should be another body, the body that adopted the Statute or some other

14 body that does this, and this is what I wish to point out to the Chamber.

15 As for the second part of your question, in the Rules that were

16 valid until June 2000, the Tribunal was authorised to pronounce either

17 consecutive or concurrent sentences, and at the time, the Chamber was

18 bound to pronounce individual, single sentences for each criminal act.

19 And this was a source of legal security, because all those who were being

20 tried or would be tried would be aware of the extent of the punishment for

21 each individual crime should they be brought before this Tribunal.

22 However, when the Rules were amended to provide for the

23 pronouncing of a single sentence, this is now no longer clear to the

24 accused. And this is important not only for the accused but also for the

25 jurisprudence of this Tribunal. There are numerous cases before this

1 Tribunal, and there has to be some sort of case law, of course bearing in

2 mind individual sentences, that sentences should be in line with

3 individual circumstances but that the sentences should be in line with

4 each other. And now we see that rape has been punished more severely than

5 multiple murders in a camp, and we feel this is a legal absurdity.

6 In my view and in the view of my colleagues, the fact that the

7 Rules applied were not the Rules that were in force while the trial was

8 under way has brought the accused into an unfavourable position.

9 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Kolesar.

10 JUDGE JORDA: [Interpretation] Thank you, Mr. Kolesar.

11 If there are no further questions, it is now 12.30, we are going

12 to adjourn until 1.30. Then we will begin in an hour.

13 --- Luncheon recess taken at 12.30 p.m.

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1 --- On resuming at 1.35 p.m.

2 JUDGE JORDA: [Interpretation] We will now resume the hearing.

3 Please be seated, and have the accused brought in, please. Please be

4 seated.

5 We will now resume. I hope everybody was able to rest a little

6 bit. If the interpreters are ready -- in fact, I'm sure they are.

7 There are four more points to be examined, and the next one, which

8 is questions relating to the identification of the accused. That's

9 Mr. Jovanovic. Am I correct? Yes.

10 Perhaps a question first. I suppose that each of the accused is

11 sitting behind his counsel; is that correct? Mr. Kunarac, then Mr. Kovac,

12 and then Mr. Vukovic; is that correct? Yes. Thank you.

13 Mr. Jovanovic.

14 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour.

15 As you stated, I will now present the views of the Defence and our

16 conclusions regarding the identification which took place in this trial.

17 The identification during the trial was a subject heavily

18 discussed during the proceedings, and as is the custom, the Defence and

19 the Prosecution had opposing views regarding this matter. It has been

20 claimed that the identification process which was conducted before this

21 Tribunal was not done in a way that would convince us that that was done

22 in such a manner that the identity of the individual would be established

23 without any doubt.

24 The identification in this case is very significant. We had no

25 material evidence presented here that would connect any of the accused

1 with the crimes they have been charged with. That means that only the

2 identification of the victims or by the victims of the accused is

3 something that remained. So we want to see whether there is an additional

4 element that could help us verify this identification which took place,

5 and the Defence believes that this is a process that should be treated

6 with a lot of attention.

7 The identification that took place here in the courtroom was the

8 one where the victims who identified the accused had to do that for the

9 first time here in the courtroom. Only in one case the identification was

10 done through the photospread before the beginning of the trial, and all

11 other identifications took place here in the courtroom.

12 The Defence believes that this identification which took place in

13 the courtroom is not something which is indisputable, and Defence is

14 further convinced of this by the statement listed in paragraph 560 in the

15 judgement, where it is said that no special evidentiary value was assigned

16 to this identification which took place in the courtroom. The same

17 position mentioned here in the judgement also illustrates that the Trial

18 Chamber gave special relevance to the description of the man which

19 allegedly raped the victims and witnesses. However, the Defence believes

20 that this procedure was flawed, and I will now explain why.

21 If we look at these descriptions which were given, if we look at

22 what the victim stated, then the description can be assessed as such, as

23 the following: FWS-75 described one of the accused as a short man with

24 blonde hair, or the witness FWS-186 described one of the accused as tall

25 and thin.

1 These characterisations can be used to perhaps limit the group

2 among which we can look for the perpetrator, but they cannot be used as a

3 basic characterisation in order to positively identify somebody, and for

4 this very reason, the test was established, or the possibility was given

5 to identify the accused in the courtroom. And in view of all of the

6 elements, the Trial Chamber did not assign any positive value to this

7 identification in the courtroom. Identification through these

8 descriptions that I have just stated -- [Technical problem]. I do not

9 deny that this took place; however, it is clear that the description of

10 the accused should have enough elements in order --

11 THE INTERPRETER: The interpreters are having technical problems.

12 MR. JOVANOVIC: [Interpretation] Your Honour, I believe there's an

13 interpretation problem.

14 THE INTERPRETER: Note from the interpreters: The English booth

15 was hearing French interpretation.

16 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, but I believe

17 that the Judge sitting next to you cannot hear me well.

18 JUDGE JORDA: [Interpretation] It's not because we're not looking

19 at them, that we're not working, of course, you understand. You can

20 continue now, I think. We are listening very carefully to what you say.

21 MR. JOVANOVIC: [Interpretation] Yes, Your Honour, but it seemed to

22 me that the Judge sitting to your left raised his hand, and I understood

23 it to mean that there was a technical problem.

24 JUDGE JORDA: [Interpretation] You see how delicate and fragile

25 testimony can be. All right. Please continue.

1 MR. JOVANOVIC: [Interpretation] Thank you, Your Honour. This

2 problem concerning the memory and the reproduction with respect to the

3 identification is a problem concerning which the Defence and the

4 Prosecution had opposing views. The Prosecution claimed that a traumatic

5 experience can improve the memory and lead to linking of certain details

6 that would help identify the accused during the proceedings. The Defence,

7 on the other hand, believed that such traumatic circumstances, in a short

8 or a long period of time, especially in a situation when the alleged

9 victims were subjected to torture, both physical and mental, would

10 logically lead to a situation where victims would not be able to

11 truthfully reproduce the events and the perpetrators, the alleged

12 perpetrators of crimes.

13 This is further confirmed by the Trial Chamber, who stated, in

14 paragraph 561 of the judgement, where the Trial Chamber concludes that:

15 "In view of the traumatising circumstances of the victims, the

16 Trial Chamber realised that an error was possible in making an

17 identification later of a person previously unknown to the witness."

18 Based on what I have just read, the Defence concluded that the

19 Trial Chamber believed that such traumas experienced by the victims would

20 greatly discredit their ability to subsequently identify the perpetrator.

21 We have to especially point out that from the moment the acts, the crimes,

22 were committed until the first identification, eight years have lapsed,

23 and that is quite a long period of time. In everyday life, where the

24 memory normally, regularly, goes through ups and downs, but everybody has

25 to admit that eight years is an extremely long period of time. What

1 concerns the Defence here is that when the judgement speaks about the

2 issue of identification, it does so only within the confines of the

3 judgement, and we can find this -- illustration of this position in

4 paragraph 789 of the judgement, and I will now quote the sentence that

5 further illustrates this.

6 As I have said, this is paragraph 789 of the judgement, where the

7 Trial Chamber held the following:

8 "The Trial Chamber attaches much weight to the identification of

9 Vukovic by FWS-75 because of the traumatic context during which the

10 witness was confronted with Vukovic in Buk Bijela as well as in Radomir

11 Kovac's apartment. The Trial Chamber is therefore satisfied that the

12 identification of Vukovic by FWS-75 was a reliable one".

13 So the Defence now would like to ask the following: How is it

14 possible that this mechanism, the alleged mechanism of improved memory due

15 to traumatic circumstances can only be applied to the witness FWS-75 and

16 none of the other witnesses, when previously in paragraph 561 the Trial

17 Chamber accepted that those traumatic circumstances led to the situation

18 where valid identification was not possible?

19 I would like to use just one more example to illustrate what I

20 have recently discussed, which is that the description of a person cannot

21 be used, and the only criteria to conclude whether the identification was

22 conducted properly or not in the case of the accused Kunarac. Witness 95

23 described Mr. Kunarac the way he did not appear in reality, as a person

24 with dark hair, long hair. And this description really does not coincide

25 with the physical appearance of Mr. Kunarac. And for these reasons,

1 Defence believes that the identification conducted during the trial was

2 not done in a valid manner and that the testimonies of witnesses cannot be

3 held as reliable in that part.

4 Those are the main views and arguments of the Defence regarding

5 the identification process during the trial.

6 JUDGE JORDA: [No translation]

7 [Interpretation] Thank you, Mr. Jovanovic. Let me turn to my

8 colleagues. I believe Judge Shahabuddeen would like to ask you a

9 question.

10 JUDGE SHAHABUDDEEN: Counsel, I see from pages 200 to 201, to

11 which I believe you referred us, that the Trial Chamber warned itself

12 about a number of matters. In paragraph 561, it said the question was not

13 whether testimony was honestly given but, rather, whether it is reliable.

14 Then later in that same paragraph, it said it was acutely aware of the

15 possibility of error in making an identification. Then it added: "The

16 Trial Chamber also recognises the possibility that men other than the

17 accused may falsely have used the name of the accused," and so on.

18 So the Trial Chamber warned itself about certain dangers. Then it

19 said it was giving no positive probative weight to in-court

20 identifications. That is in paragraph 562. In paragraph 563, it said it

21 was relying on other considerations, and it went into that a little.

22 So the Trial Chamber didn't really put any store by in-court

23 identification. It referred back to the incidents in question. Now, what

24 is your proposition?

25 I understand that as a Court of Appeal, the question before us is

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1 not whether if we sat as a Trial Chamber we would have come to a different

2 conclusion. That, I do not think, is our task. Our task is a different

3 one. It's to say whether on the evidence before the Trial Chamber no

4 reasonable Tribunal could have come to that conclusion.

5 Now, you have to convince us that your case reaches this

6 standard. Are you sure that you have sought to reach this standard of

7 proving to the Appeals Chamber that no reasonable Tribunal of fact could

8 have come to the conclusion on the evidence before it that the

9 identification of these men was established?

10 MR. JOVANOVIC: [Interpretation] Absolutely, Your Honour. That was

11 the intention of the Defence. We claim that the evidence presented to the

12 Trial Chamber, the quantity -- the quality of that evidence material were

13 not such as to reach the conclusion that proper identification of any

14 accused was done. We don't have sufficient elements in order to reach

15 such a conclusion.

16 As I have stated, the simple description of somebody as being

17 tall, short, being blonde or otherwise can perhaps limit the number of

18 people that fall within that description, but it will not help us to find

19 the perpetrator himself among that remaining half. So there must be

20 something else that would support those statements, the testimony, and

21 that other thing is missing. The other thing should have been

22 identification in the courtroom, which means that we have a prior

23 description and then on top of that we have an identification carried out

24 in front of all of us. Here that is missing. The Trial Chamber itself

25 was aware of that and did not attribute any probative value to the

1 identification in the courtroom.

2 Your Honour, the Defence, in its written brief, gave another

3 circumstance which in the Defence's position also made this process of

4 identification a flawed one. The Defence became aware of that problem

5 only halfway through the trial, when the witness with pseudonym FWS-95 was

6 testifying. Unfortunately, that was a technical flaw in view of the

7 Defence. At least this is how we see it. But it technical flaw led to a

8 situation where the witness was in the courtroom prior to the beginning of

9 the hearing, the Trial Chamber asked each of the accused whether they

10 could hear and follow the proceedings, and by doing so, the Trial Chamber

11 identified the accused. So any other identification was pointless when

12 the identification had already been done, which means that the elements

13 needed to reach such a conclusion are missing. That is the position of

14 the Defence.

15 JUDGE SHAHABUDDEEN: I will put a supplementary question to you.

16 I'm right, am I, in understanding you not, not to be submitting that the

17 Trial Chamber was never satisfied about identification?

18 In paragraph 792 of the judgement, for example, I'll read that:

19 "The Trial Chamber finds that there remains reasonable doubt as to the

20 identification of Zoran Vukovic." Is that an element you think which

21 might be taken into account by the - you're handicapped [Technical

22 difficulty] - paragraph 792 I'm referring to, to show that there was at

23 least one instance - it may have been more than one instance - in which a

24 Trial Chamber considered that it was not satisfied by the identification

25 evidence? Is that something which you think might be taken into account

1 by the Appeals Chamber in evaluating your submissions to the effect that

2 the Trial Chamber did not observe the proper principles in assessing the

3 evidence about identification?

4 MR. JOVANOVIC: [Interpretation] I believe, Your Honour, that you

5 pointed to the right argument. The Defence believes that standards that

6 were used in this particular case, and in all other cases, are completely

7 opposite. We cannot apply different positions on the same issues in one

8 trial. I did not say that the Trial Chamber was not under the impression

9 that this identification of Mr. Vukovic was done in such a way as to be

10 beyond any reasonable doubt, but the manner in which it was done

11 challenges all other identification, or questions all other

12 identifications. We cannot have totally opposing positions applied in one

13 case.

14 JUDGE SHAHABUDDEEN: I understand. Thank you.

15 JUDGE JORDA: [Interpretation] No further questions? Thank you,

16 Mr. Jovanovic. I don't know whether you were going to continue to speak.

17 Let me check. Yes, Mr. Jovanovic. Now we have the issue of evaluating

18 the expert testimony. Would you proceed, please.

19 MR. JOVANOVIC: [Interpretation] During the trial, several expert

20 reports were compiled and we had an opportunity to hear experts on various

21 fields who testified before the Trial Chamber. There were experts dealing

22 with military matters, legal matters, experts on the Criminal Code of the

23 former Yugoslavia and the practice of the courts there, and then there

24 were also medical experts who testified in the fields of psychology,

25 psychiatry, and forensic science. Let me say first of all why the Defence

1 asked for medical experts in this case, and this was partly granted. The

2 reason for this was to do with Mr. Kunarac and Mr. Kovac.

3 I do not hear anything.

4 JUDGE JORDA: [No interpretation]

5 MR. JOVANOVIC: [Interpretation] Yes, I do now.

6 In count 1.8 of the indictment, the Prosecution put forward the

7 following: Many - and this refers to the victims - many have permanent

8 gynaecological damage as a result, some cannot have children any more, and

9 all the women suffered psychological and emotional harm, and some remain

10 traumatised. We felt that these circumstances do not fall under Article

11 96, the circumstances dealing with the consequences, which is why we asked

12 for medical experts to check whether this is really the way it has been

13 represented by the Prosecution.

14 The second reason why we asked for this was the absolute lack of

15 medical documentation supporting these claims. If there is a rather large

16 number of people who, over a relatively long period of time, as stated in

17 the indictment, were subjected to such terrible mental and physical

18 torture, of course this would have to leave consequences, even after eight

19 years; of course, not in all the victims, but it would have to appear in

20 some victims.

21 We heard Dr. Dunjic here, a specialist on forensic medicine;

22 Professor Aleksandar Jovanovic, a psychiatrist; and Professor Draskovic, a

23 psychologist. They did their work as follows: The Chamber granted leave

24 to the Defence to introduce the medical experts, or rather, to show them

25 five witness statements, and they had to give their expert opinion based

1 on this.

2 We feel that this was not a proper approach, because for a doctor

3 to provide a true opinion, a well-grounded opinion, he would have to be in

4 contact with the patient. However, limited by the decision of the

5 Chamber, we did what we were able to do at the time. The experts wrote

6 their reports and testified before the Chamber, but the Defence is

7 surprised to find that in the judgement, with the exception of the last

8 part, which has a chronological overview, there is no mention of the work

9 of Dr. Jovanovic and Dr. Draskovic. We do understand that the Court has a

10 discretionary right to accept or reject certain evidence. However, if

11 these testimonies were given before the Chamber, we feel the Chamber was

12 bound to explain why it either accepted or rejected these testimonies. We

13 have not found anything about this in the judgement.

14 On the basis of these partially conducted expert examinations,

15 what did we find? I think the best way is to look at the transcripts

16 where Dr. Jovanovic and Dr. Draskovic were examined. In medical theory,

17 and according to all the rules of medical science, it is not possible that

18 a single one of the victims did not suffer some of the consequences listed

19 here, but there is no proof of this.

20 We do not wish to embarrass the victims or to diminish their

21 suffering, because they truly went through hell, but it is really

22 unimaginable that such a large number of women should be exposed to such

23 enormous sexual mistreatment over such a long period of time without any

24 of them becoming pregnant. This is something that is statistically

25 negligible as a possibility. Not a single one of them said that as a

1 result, nor was there any evidence adduced to show that as a result any of

2 them had permanent problems or that any of them were unable to have

3 children.

4 We cannot see what happened at the time because eight years have

5 gone by, but we can see what the consequences are and whether these things

6 really happened. The medical science tells us they didn't.

7 Unfortunately, ten years of war on the territory of the former

8 Yugoslavia have resulted in some professions acquiring new insights, and

9 at the moment, the best experts on post-traumatic stress syndrome and

10 other types of war trauma are found in the former Yugoslavia because of

11 the large numbers of people who suffered such things.

12 Research conducted in Croatia and Bosnia, and I am referring to a

13 book published in the year 2000 - and I'm sorry that we have only now

14 learned of its existence - that at least one-third to two-thirds of

15 victims of sexual mistreatment have permanent mental and physical

16 consequences. Here we have not seen a single physical consequence

17 resulting from this sexual mistreatment. And we heard psychological

18 consequences from two victims who said they suffered psychological

19 consequences, but they did not produce any valid documents to substantiate

20 that claim.

21 The Defence is still of the opinion that this does not fall under

22 Rule 96. We have to know whether the consequence is there or not and then

23 we shall be able to say with a certain amount of certainty whether the

24 event actually happened or not.

25 The next thing I wish to say in connection with the expert

1 opinions is that medical examination was conducted of Mr. Zoran Vukovic.

2 All these documents are in the record, and it is very easy to see that

3 this is the only expert examination that was carried out according to the

4 methods required by the medical profession. And in the end, we had two

5 opinions. The opinion of Dr. De Grave and the opinion of our expert.

6 The Chamber came to the conclusions that Mr. De Grave's

7 conclusions were valid at this point in time. With all due respect, the

8 Defence considers this is not so. I will not go into the details of the

9 examinations and the results. I ask the Chamber to read the documents to

10 see the results.

11 Dr. De Grave based his conclusions for the most part, as he

12 himself said, on things he had learnt through the Internet about this case

13 and on his personal conclusions as to whether this could have happened or

14 whether it didn't happen. Mr. De Grave went so far as to say that

15 Mr. Zoran Vukovic saw this and that because he saw this happening to

16 somebody else, he said it happened to him. This is a procedure, a way of

17 reaching conclusions which goes -- runs counter not only to medical

18 science but to logic. We cannot say that this did not happen.

19 Professor Dunjic, who was the Defence expert, relied on his

20 enormous experience and on international authorities in this field of

21 medicine. Finally, he says that he -- he asserts that this happened to

22 Mr. Vukovic. "I cannot say that this happened," he said, "but on the

23 basis of everything that has been done, there is a huge probability that

24 it did."

25 Of course it is up to the Chamber to accept or reject this expert

1 opinion, but if the Chamber rejects this expert opinion, it must provide

2 reasons for this. It is not to say he did or he didn't. Everything must

3 be put in its place in a case of this nature.

4 Your Honours, I wish to conclude the issues raised by the Defence

5 in connection with expert witnesses during the trial.

6 JUDGE JORDA: [Interpretation] Thank you. Judge Schomberg.

7 Judge Shahabuddeen.

8 JUDGE SHAHABUDDEEN: Mr. Jovanovic, are you inviting the Appeals

9 Chamber to take the position that these women did not in fact give birth

10 to any children or are you saying to the Appeals Chamber that that

11 question had not been explored one way or the other?

12 MR. JOVANOVIC: Your Honour, I'm not saying that they did not bear

13 children. Some of them have told us that they are married now and that

14 they do have children.

15 What the Defence is saying is that it is impossible to imagine a

16 situation or, rather, there is no evidence that this happened, no evidence

17 that any woman in this period became pregnant and had a child. The

18 witnesses who were victims were asked about this, and they always said

19 about themselves and others they knew that there was not a single case

20 where a person became pregnant. We have no evidence.

21 JUDGE SHAHABUDDEEN: You say there is evidence in the Trial Record

22 that the witnesses admitted before the Trial Chamber that they were

23 unaware of any woman victim who had a pregnancy consequent on these

24 allegations?

25 MR. JOVANOVIC: [Interpretation] Yes, Your Honour. Yes.

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1 JUDGE JORDA: [Interpretation] Judge Schomberg.

2 JUDGE SCHOMBERG: Thank you. I have a question, because I didn't

3 really understand your intention. You mentioned that you regard it as an

4 omission in the judgement that no mention was made as regards the expert

5 witnesses Jovanovic and Draskovic, and then you went on discussing the

6 issue that they gave an overview of physical consequences of the alleged

7 acts.

8 As far as I can see, I want to draw your attention to paragraph

9 852 of the judgement. There you can read that "Consideration of the

10 consequences of a crime upon the victim who is directly injured by it is,

11 however, always relevant to the sentencing of the offender." And then

12 going on, "Where such consequences are part and parcel of the definition

13 of the offence though care should be taken to avoid considering them

14 separately in imposing sentence."

15 If I understood you correctly, there was given some expert witness

16 statement on those consequences. Isn't it true that those consequences

17 couldn't be only regarded as aggravating circumstances, and could you

18 please tell the Appeals Chamber where in the judgement you find any of

19 these consequences regarded as aggravating factors with respect to the

20 accused? Because in my opinion, only this would infringe the rights of

21 the accused.

22 MR. JOVANOVIC: [Interpretation] Your Honour, I fear I was

23 insufficiently clear, so I will try to clarify now.

24 The possible consequences that might arise would certainly have an

25 impact on the severity of the sentence for purposes of sentencing. The

1 intention of the Defence was not to link these consequences to sentencing

2 and aggravating circumstances. What we are trying to say is that the lack

3 of these consequences casts doubt on the entire assertion that this large

4 number of women was raped over such a prolonged period of time by so many

5 men.

6 According to Rule 96, there is no need to corroborate the

7 testimony of victims of rape, but lack of consequences indicates that

8 probably these rapes never took place. That is what the Defence is trying

9 to say.

10 JUDGE JORDA: [Interpretation] I have a question. I do understand,

11 Mr. Jovanovic, the fact that in your opinion the Prosecution was

12 unsuccessful in demonstrating what was said in .18 [as interpreted] of the

13 indictment which would cast reasonable doubt on the guilt. Not

14 necessarily on the sentence but the guilt of the accused. Is that what

15 you're saying? Very well. Thank you for that clarification.

16 If there are no more questions, we still have a few minutes -- did

17 you want to add something?

18 MR. JOVANOVIC: [Interpretation] No, Your Honour.

19 JUDGE JORDA: [Interpretation] Very well. Thank you. We will now

20 take up the issue of the grounds based on the definition of offences

21 common and individual to the accused. Ordinarily in our organisation of

22 work here, we had thought that we would take a break around 2.45. So let

23 me take up the point.

24 I do not have any information about the identity of the people who

25 are going to speak. I think several of you want to take the floor.

1 Please rise and speak if you plan to do so. Do you have a plan for the

2 distribution of what you're going to say?

3 I think that Mr. Kolesar is going to rise now; is that correct?

4 Would you please tell us first so that we know exactly what we're doing?

5 Who is going to speak and to what issues are you going to speak, each of

6 you?

7 MR. KOLESAR: [Interpretation] Thank you, Your Honour. The

8 agreement reached by the Defence counsel was to have me say a few things

9 concerning the enslavement and outrages upon personal dignity regarding

10 all of the accused, so I will speak about this crime as such, and my

11 colleague Mr. Prodanovic will speak about the crime of rape and torture,

12 and this would conclude our presentation concerning the joint position for

13 all of the accused. This would cover the common grounds for all of the

14 accused. And then after that, each Defence counsel would speak on behalf

15 of each of the accused, and I think that we made aware the Chamber of this

16 plan of ours.

17 JUDGE JORDA: [Interpretation] Very well. Thank you. All right.

18 The floor is yours in respect of the offence of enslavement. We'll take a

19 break at a quarter of. Proceed.

20 MR. KOLESAR: [Interpretation] Thank you. A provision of Article

21 5(C) states that this Tribunal would be authorised to put somebody on

22 trial for the crime of enslavement. It also envisions that the

23 enslavement has to pertain to the civilian population in an armed

24 conflict, be it an internal or an external, international one. Naturally,

25 the elements of this crime are not detailed by the Statute, and we now

1 have to say that theoretical and practical issues can be raised concerning

2 the possibility of applying this provision to the case in question.

3 The Defence believes that there should be a clear distinction made

4 between the term "enslavement," as it was viewed by the international law

5 so far, starting from the 1815 and the Vienna Declaration, and on, and

6 also the detention or captivity as it was listed in the indictment. The

7 Defence believes that the enslavement should be interpreted within the

8 term "enslavement" and not within the term "captivity" or "deprivation of

9 freedom of movement."

10 According to a learned legalist and lawyer, Bassioni, enslavement

11 can exist in several modes. The enslavement is aimed against somebody who

12 depicts the ownership, the right of ownership over that person, and also

13 entails making that person work or subjecting that person to sexual

14 enslavement. The sexual enslavement also entails detention of a certain

15 person in order to have that person carry out certain sexual actions, be

16 it with a fee or without remuneration. At any case, in order to -- these

17 accused here before us can only be considered to have committed the crime

18 of sexual enslavement; however, in order for this crime of sexual

19 enslavement to be seen as a war crime within the terms of Article 5(C) of

20 the Statute, it needs to fulfil certain requirements.

21 First of all, we believe that there needs to be an intent, an

22 intent to detain a certain person in order to use that person for sexual

23 acts but in such a way so that this person is either transferred or

24 detained in one location for a prolonged period of time. So the Defence

25 of these accused believes that, as a first element of this crime, there

1 must be an intent when transferring an individual for sexual purposes,

2 this individual needs to be kept for a prolonged period of time in the

3 ownership of the person carrying out the sexual acts, or at least for a

4 certain length. This kind of an intent has not been proved with respect

5 to any of the accused.

6 The second element which needs to be proved in order to establish

7 this crime, as far as the Defence sees it, is that the transfer or

8 detention needs to be carried out for the purposes of carrying out sexual

9 acts without the consent of the person that is being detained. In our

10 case, it has not been proved that the detention of certain of the

11 witnesses were done without consent, or contrary to consent of these

12 witnesses. In order to prove that, the Prosecution should have proven the

13 lack of consent, which should have been clear and constant and would

14 therefore allay any doubts as to the unwillingness of the victim to remain

15 in that location.

16 It also needs to be proven that this lack of consent was real and

17 that it needed to exist during the entire time of the detention. None of

18 the witnesses testified here that they did not want to stay in the houses

19 where they were kept for a certain period of time, nor did the witnesses

20 confirm that they lacked the freedom to move about freely. To the

21 contrary. All of them testified that they had freedom of movement - this

22 was further corroborated by the evidence presented by the Defence - and

23 also that the witnesses were in a position to demonstrate resistance.

24 They could have escaped, they could have asked for assistance from the

25 neighbours in order to release themselves from this kind of captivity.

1 The third element that needs to be proven in order to establish

2 criminal liability for this crime is a time period which cannot be of a

3 short nature, of a short duration. It needs to be proven that the person

4 which enslaves somebody is doing it without a time limitation, because if

5 there is a time limitation, then we wonder whether there can be a crime of

6 enslavement at all.

7 The Defence believes that in order to establish enslavement, the

8 victim must be detained for a prolonged period of time, which in reality

9 must be reduced to a time period which would indicate a clear intention to

10 keep the victim in that situation for an indefinite period of time. Any

11 other shorter period of time could not support the crime of enslavement.

12 A fourth element is that the person which is guilty of enslavement

13 treats the person it enslaves as its own ownership. The Defence believes

14 that the Prosecution failed to prove that any of the accused charged with

15 this crime behaved in such a way to any of the victims. This needs to be

16 established based on the objective criteria and not based on the

17 subjective impressions of the victims.

18 The Defence claims that the Prosecution failed to prove all of the

19 elements of enslavement under Article 5(C) of the Statute with respect to

20 any of the accused: Kunarac, Kovac, or Vukovic. The Defence of all of the

21 accused believes that the Prosecution failed to prove beyond reasonable

22 doubt sexual enslavement, and with respect to that, we would like to point

23 out to a case Martiol and Marassol, in a case Takeuchi Hirioe, who was

24 sentenced to five years in prison for raping a woman who stayed with him

25 from November 1943 until October 1944, which means for 11 months, and this

1 person was not held guilty for enslavement, sexual enslavement, and the

2 Prosecution in that case asked for a sentence of ten years.

3 That would be all as far as the crime of enslavement is concerned,

4 and if there are any questions, perhaps we should deal with them now so

5 that after that I can turn to another crime, or would you prefer me to

6 continue with my presentation concerning the second crime?

7 JUDGE JORDA: [Interpretation] Since we're discussing this issue, I

8 see that Judge Guney would like to put a question to counsel.

9 JUDGE GUNEY: [Interpretation] Mr. Kolesar, in regard of the

10 constituent elements of the crime of enslavement, you said if it was a

11 period which was limited, then there is no enslavement. What do you mean

12 by "limited period"? Could you tell us that?

13 JUDGE JORDA: [Interpretation] Judge Guney, excuse me. The

14 interpreters are asking if you would please turn your microphone somewhat

15 so they could hear better. This is for the interpreters. I hear you very

16 well, of course, speaking in French. Thank you.

17 JUDGE GUNEY: Thank you, Mr. President. I'll repeat the

18 question.

19 Mr. Kolesar, when you listed the constituent elements of the crime

20 of enslavement, you mentioned the limited period of the enslavement, and

21 your conclusion was that if the period is limited, then there is no

22 enslavement. Would you please elaborate on that, please. What do you

23 mean by "limited period"? Could you give us illustrations with concrete

24 examples. Thank you very much.

25 MR. KOLESAR: [Interpretation] Your Honour, I was asked a similar

1 question after my closing speech. This question was asked by Judge Mumba

2 as to what time period was needed in order to fulfil the requirement for

3 enslavement, and on that occasion I replied by saying that it was very

4 difficult to put a time limit on that, because it wasn't only the time

5 itself that is used in order to establish an element of this crime, but

6 this needs to be viewed in a context of other elements stated by me as

7 well. Longer or shorter period of time is a relative notion.

8 I here cited the case from Japan, where the accused was held

9 guilty for rape despite the fact that he had held the victim for 11

10 months. So if we are to accept this position, then 11 months in this case

11 was not sufficient to establish enslavement. So I think that a longer or

12 shorter period of time is only one of the elements.

13 On top of this, we need to add the intent of the person who is

14 holding somebody in captivity. We need to establish whether that person

15 had an intent to detain this person for an indefinite period of time. So

16 it is hard for me to put a numerical value on a longer or shorter period

17 of time, but it needs to be a sufficiently long period of time, not less

18 than one year, if we are to uphold this Japanese decision, and of course

19 it needs to be viewed in the context of other elements in order to

20 establish whether we have what is necessary for the crime of enslavement.

21 I hope that my answer is sufficient.

22 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.

23 JUDGE SHAHABUDDEEN: Mr. Kolesar, I wonder if you can give us

24 again the exact references to the two cases on which you are relying,

25 namely, the 1943/44 case, and the case from Japan. Perhaps what you might

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1 do is to pass up a piece of paper to the Judges and to the Prosecution so

2 we could have the benefit of the exact references.

3 But may I ask you this question: Was there a charge for

4 enslavement in the first case to which you referred, that is the 1943/44

5 case? And in respect of the case from Japan, the same question arises,

6 and more particularly in this context: Were the legal provisions under

7 which the indictment was brought in Japan such as to enable the indictment

8 to include a count for enslavement?

9 MR. KOLESAR: [Interpretation] Your Honour, I made a mistake, and I

10 would like to apologise for it. We are not talking about two cases here.

11 We are talking about one case quoted by me, and that was the Japanese

12 case. So we are not talking about two cases here, just one. That's the

13 first thing.

14 And the second thing is, to be frank with you, I don't have

15 further information as to whether the indictment included the count of

16 enslavement. I know that this accused was sentenced to five years for the

17 crime of rape, and I also know that the Prosecutor asked for a ten-year

18 sentence. These are the facts that I have regarding this case.

19 JUDGE SHAHABUDDEEN: Thank you, Mr. Kolesar.

20 JUDGE JORDA: [Interpretation] Judge Schomberg.

21 JUDGE SCHOMBERG: Thank you. I want to come back to the element

22 of consent.

23 No doubt the burden of proof is with the Prosecutor, but do you or

24 would you agree that in any case of enslavement or deprivation of liberty

25 you have to a certain extent a presumption of non-consent of the person

1 deprived of his or her liberty?

2 And the second point: As far as an error on facts is under

3 discussion, I want to ask you, do you intend to contribute that there was

4 an error on facts to that and that all allegedly enslaved persons had been

5 there with their consent?

6 MR. KOLESAR: [Interpretation] Your Honour, to claim something of

7 that nature would be an illusion. It is one of the elements of the

8 existence of a crime. In order for a crime to exist, in addition to that

9 one element there need to be other elements, and only once all the

10 elements are there accumulatively then we can talk about the existence of

11 the crime of enslavement. This is at least the view of the Defence.

12 As far as the first issue is concerned, there is an objective and

13 a subjective factor on the part of the person holding somebody in

14 captivity. That person can have a subjective feeling regarding the

15 willingness of the person held in captivity. The captor can have a

16 subjective feeling that the person held in captivity has given consent if

17 that person is not demonstrating visibly lack of its consent. But this is

18 a very serious theoretical issue which really falls within the scope of

19 medical science.

20 JUDGE JORDA: [Interpretation] Judge Meron.

21 JUDGE MERON: I would like to go back to an element which you

22 mentioned a few minutes ago regarding the indefinite period, suggesting

23 that detentions which appear to have a definite period or shorter period

24 of duration would not be regarded as enslavement.

25 Now let us move just for a second away from sexual enslavement.

1 We are all aware of the instances during the Second World War when young

2 people, for example from France or other countries, were forced go to

3 Germany to perform, labour which they did not choose to perform.

4 They were, in fact, forced to go to Germany, say, for a period of one or

5 two years. Assume -- the Nazi

6 authorities did not intend to keep them forever. Would you regard this as

7 enslavement or not? Thank you.

8 MR. KOLESAR: [Interpretation] Your Honour, let me be completely

9 frank with you. I cannot establish a link between these two cases and

10 draw a parallel between this event here with which we are dealing and the

11 events which took place in the Second World War, the acts perpetrated by

12 the Nazi Germans. I can only make an assumption that the Nazis collected

13 all those people, not only from France but from other places, in order to

14 keep them in captivity forever. However, I was not old enough to observe

15 this personally at the time, and albeit I have a number of years, I don't

16 have any personal knowledge concerning this, and I have not studied this

17 in depth, and I'm afraid that I cannot really compare these two cases.

18 JUDGE MERON: Thank you. I really wanted to focus on the problem

19 that I faced with your presentation regarding an indefinite period. There

20 were cases of enslavement -- which were treated as such and

21 which were not meant to last forever. But I do realise that the cases are

22 not all entirely similar to each other. Thank you very much.

23 JUDGE JORDA: [Interpretation] I have a clarification I'd like to

24 ask for. In the first part, you talk about -- you talk about enslavement

25 for sexual purposes. Therefore, you include the sexual connotation. Does

1 this in, in your opinion, belong to enslavement as was interpreted by the

2 Vienna Conventions or even our specific case in respect of the Statute

3 which provides for rape and enslavement?

4 You said that the first element was the intention to keep somebody

5 for sexual purposes, or did I misunderstand what you said?

6 MR. KOLESAR: [Interpretation] Your Honour, I did say that in view

7 of the Prosecution's position, the Defence, when talking about

8 enslavement, interpreted this to mean sexual enslavement. Sexual

9 enslavement, to be precise.

10 JUDGE JORDA: [Interpretation] Thank you, Mr. Kolesar.

11 If there are no further questions, we're going to take a break.

12 We will take a break for 20 minutes. We will start again about five after

13 three.

14 --- Recess taken at 2.46 p.m.

15 --- On resuming at 3.13 p.m.

16 JUDGE JORDA: [Interpretation] We will now resume the proceedings.

17 Have the accused brought in, please. Please be seated. Is everybody at

18 his or her position?

19 Mr. Prodanovic, as regards the definition of the offences, that

20 is, torture and rape. Is that correct?

21 MR. KOLESAR: [Interpretation] Your Honours, I still owe you a few

22 sentences regarding the crime of outrages upon personal dignity. May I

23 begin?

24 JUDGE JORDA: [Interpretation] Excuse me. Yes, I had noted that.

25 Yes, please proceed.

1 MR. KOLESAR: [Interpretation] Thank you, Your Honour. The amended

2 indictment against Kunarac and Kovac, in its paragraph 20.1, regarding

3 Kunarac, and 20.5, regarding Kovac, charge them with outrages against

4 personal dignity, which is --

5 JUDGE JORDA: [Interpretation] Just a moment. A technical

6 problem. There is no interpretation on channel 4, because I have it on

7 5. All right. It's all right now. Mr. Kolesar, you may proceed.

8 MR. KOLESAR: [Interpretation] From the point of view of the

9 Prosecution, outrages upon personal dignity is a violation of the laws and

10 customs of war, and this is something that can encompass everything that

11 was not specifically listed as a crime in the Tribunal's Statute. The

12 Defence, then as now, has voiced its disagreement with this view, and we

13 will take this opportunity to state again that when talking about the

14 violations of the customs and laws of war, in the sense of Article 3(1),

15 this does not pertain to the infringement upon the rights of physical

16 persons. The provisions of this Article are not protecting individual

17 values, because those are protected by Article 2, Article 4, and Article 5

18 of the Statute. And since the individuality, the individual itself, is

19 not protected by these provisions, then this means that this crime, which

20 can be carried out only against a person, a physical person, and thus does

21 not fall under Article 3 of the Statute. The Defence cannot comprehend

22 the efforts of the Prosecution and the Trial Chamber to qualify this

23 crime, at any cost, as an act which violates customs or laws of war when

24 Article 5(E) gives general formulations of other inhumane acts, and we

25 believe that this Article 5 is more appropriate to the values protected in

1 this crime, outrages upon personal dignity, because this can certainly be

2 viewed as an inhumane act.

3 In view of the above, the Defence believes that the Tribunal

4 should not consider this act as an act punishable under Article 3 of the

5 Statute. The Defence believes that the outrage upon personal dignity is

6 not incriminated as a separate crime under international law and that, as

7 such, it is not incriminated in the national legal systems either, which

8 means that it is not normally found in the common law, customary law.

9 The Defence believes that personal dignity is guaranteed by the

10 international agreements on human rights; however, that the modes of

11 violating personal dignity are not considered to be an individual crime.

12 The violation of personal dignity can be conducted through other crimes,

13 and by perpetrating these other crimes, the personal dignity is violated.

14 For example, the crime of rape, at any case, is something that

15 violates personal dignity because it entails acts which break down the

16 will of the victim and force her to engage in sexual intercourse.

17 A female which becomes a victim whose will is broken down and who

18 is forced to engage in an act for which she did not consent is something

19 which violated the personal dignity of the victim. However, we are asking

20 whether by doing such acts a perpetrator can in fact commit two crimes,

21 which is a crime of rape and a crime of outrage upon personal dignity.

22 The Defence believes that two crimes cannot be committed by these

23 described acts, and we believe that the Trial Chamber in the Furundzija

24 case was of the same view, and that was the case IT-95-17/1-A when

25 Furundzija was found guilty of outrages upon personal dignity, including

1 the rape.

2 Contrary to the view of the Trial Chamber in this case, the

3 Defence believes that if the rape is established, then that means that

4 there is no crime of outrages upon personal dignity because this crime is

5 subsumed by the rape. The rape is the act that is prescribed in this

6 case. The rape, in fact, violates the personal dignity of the person

7 raped, and this is in fact a consequence, and a consequence cannot

8 constitute a crime itself. The rape is seen by the victim as an insult,

9 as a humiliation, and in addition to this humiliation, there are also more

10 serious mental traumas. But these are all consequences of a crime and not

11 a crime itself.

12 So in view of the above, the Defence believes that humiliation as

13 a result of sexual mistreatment in its aggravated mode can exist when the

14 victim is forced to engage in oral sex. But here again we see that the

15 forcing to engage in oral sex and the penetration, oral penetration of the

16 victim is something that in itself will violate the personal dignity. In

17 addition to this there can also be physical traumas, and this can be

18 viewed only as a factor to determine whether this was an offence of a

19 greater degree or an offence of a lesser degree. And this in turn can

20 only be analysed in the context of sentencing and not in the context of

21 establishing the conviction.

22 So the Defence believes that the outrages upon personal dignity is

23 something that should be subsumed by another crime, either a crime of rape

24 or a crime of torture or another crime which, as a consequence,

25 encompasses violation of personal dignity as seen by the victim.

1 If this was not the case, if we were to take that the outrage upon

2 personal dignity can be seen as an individual crime, that would bring us

3 to an unacceptable situation where we would take the element of this

4 particular crimes, which are the same as elements of rape or torture or

5 another offence aimed against the dignity and physical well-being of a

6 physical person.

7 Your Honours, this concludes my presentation concerning this

8 particular crime and also the general grounds which pertain to all of the

9 accused.

10 JUDGE JORDA: [Interpretation] Thank you. Thank you, Mr. Kolesar.

11 No specific questions?

12 Mr. Prodanovic.

13 MR. PRODANOVIC: [Interpretation] Your Honours, I had planned to

14 discuss rape as a crime, and since I also am the Defence counsel for

15 Kunarac, then perhaps I should also talk about the individual counts --

16 individual elements of torture as it pertains to my client so that this

17 would -- this would round up my presentation. So I would add to the

18 general elements the individual elements which pertain to the accused

19 Kunarac.

20 JUDGE JORDA: [Interpretation] I assume you've agreed with that

21 with your colleagues. You've decided to speak that way, to follow that

22 order. All right. Please proceed.

23 MR. PRODANOVIC: [Interpretation] Yes. We have informed the

24 Chamber in our motion of this allocation of tasks.

25 As far as accused Kunarac is concerned and the convictions of rape

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1 based on Article 5 of the Statute, and since these charges were described

2 in one paragraph of the indictment, we deny the fact that these

3 allegations were proven beyond a reasonable doubt. The witnesses FWS-186

4 and 191 were allegedly held in a deserted house in Trnovo for some six

5 months, starting on the 2nd of August, 1992. It is also alleged that

6 during their detention, the accused Kunarac constantly raped FWS-191,

7 whereas DP6 was constantly -- was constantly raping the witness FWS-186.

8 Kunarac reserved the witness FWS-191 to himself.

9 In the paragraph 10.3, it is stated that the girls were treated as

10 a personal property of Kunarac and DP6 and that they were forced to

11 perform household chores and also all other requirements of their

12 captors.

13 The Defence believes that the accused Kunarac cannot be held

14 responsible for this crime under Article 5(c) of the Statute because his

15 acts do not constitute the elements of this crime.

16 As far as the general elements of the crime of enslavement are

17 concerned, I do not wish to elaborate on this, because I entirely agree

18 with what my colleague Kolesar had stated, and I do not wish to repeat

19 them. I will now focus only on the individual acts of the accused

20 Kunarac, which were not evaluated properly by the Trial Chamber.

21 Otherwise, his acts could not have been considered to fall under this

22 crime and this Article.

23 The Defence believes that the Trial Chamber should have viewed the

24 entire context, as well as the connection between the accused Kunarac and

25 the events described in the indictment. I will now only discuss the

1 undisputed facts which were established during the trial, which will show

2 that the acts of Kunarac cannot be seen as the acts which fall under the

3 crime of enslavement, and this will further show that the Trial Chamber

4 made a mistake when it found him guilty of this crime.

5 The witnesses FWS-191 and 186 claim that Kunarac and DP6 brought

6 them to the house in Trnovace on the 2nd of August, 1992. In his

7 testimony, Kunarac stated that he went for the first time to the house in

8 Trnovace on the 9th of August, 1992. When they were brought to Trnovace,

9 on the door of the house the name of DP6 was written. DP6 mostly lived in

10 this house when he was not on the front line. This can be gleaned on the

11 page 3180 of the transcript. DP6 mostly protected the witnesses FWS-191

12 and 186. On one occasion they even asked him if they could remain in the

13 house. He replied to them that it would be best for them to remain with

14 them, because if they were to leave the house, they would be raped by

15 others, and this can be seen on the page 3181 of the transcript.

16 Witness 191, in her testimony, claimed that Zaga Kunarac never

17 beat them, never slapped them or yelled at them. They could not leave

18 Trnovace, despite the fact that they had a key, and they would frequently

19 be left alone for days because they had nowhere else to go. This can be

20 found on page 3184 of the transcript.

21 Kunarac and DP6 took, on two occasions, the letter from the

22 Witness 186 and 191 to Kalinovik, to their mothers, and then brought back

23 the replies of the mothers to the witnesses. They also brought clothes

24 that their mothers had sent from Kalinovik. This is found on page 3189 of

25 the transcript.

1 At the end of September 1992, Kunarac obtained passes issued in

2 their names which enabled them to leave Trnovace and go to Montenegro.

3 Witness 191, he offered to her to go and stay with his family in Tivat,

4 which is where the family of Kunarac had resided. However, Witness 191

5 refused this because Witness 186 did not agree with it. This can be found

6 on pages 3218 and 3219 of the transcript.

7 The accused Kunarac gave to the mother of the Witness 191 his

8 phone number of his family house in Tivat, where his wife and children

9 resided, so that she could, at any time, verify where her daughter was.

10 These allegations were confirmed by the mother of Witness 191, Witness

11 192, when cross-examined.

12 JUDGE JORDA: [Interpretation] I'm sorry for interrupting you,

13 Mr. Prodanovic. I would like to understand the exercise that you are

14 asking us to. I thought I had understood. Perhaps I was wrong. With

15 respect to the definition of the crime of rape that you are criticising as

16 having been that which the Chamber gave, perhaps you are trying to show

17 that the Chamber committed an error of fact in law. I somewhat have the

18 impression that you are rearguing elements of fact. I really want to

19 understand your method, if you will explain that to us, please. Do you

20 understand my question?

21 MR. PRODANOVIC: [No interpretation]

22 [Technical difficulty]

23 JUDGE JORDA: [Interpretation] Judge Meron -- is the interpretation

24 coming through from the English? Judge Shahabuddeen, do you hear? Judge

25 Meron, do you hear? You're not hearing.

1 JUDGE MERON: Perhaps the counsel could start again and we will

2 see whether it's coming through.

3 JUDGE JORDA: [Interpretation] Perhaps you might resume and give

4 the answer again that you started with. I heard the interpretation, but

5 let's see if it's going through the English channel. Did you understand

6 my question?

7 MR. PRODANOVIC: [Interpretation] [Previous translation continues]

8 ... Your Honour. My colleague Mr. Kolesar spoke in general about the

9 crime of enslavement, and there is no need for me to repeat what he said.

10 My client, however, was found guilty of enslavement, and I only wish to

11 say whether factually his conduct can be described as the crime of

12 enslavement. Then I would like to pass on to rape and torture, so as not

13 to have to go back to enslavement.

14 JUDGE JORDA: [Interpretation] Yes. All right. But remain -- what

15 you say must always remain related to what your colleague said.

16 MR. PRODANOVIC: [Interpretation] These allegations were confirmed

17 by the mother of Witness 191, and this is Defence Exhibit D58.

18 THE INTERPRETER: 56. The interpreter apologises.

19 MR. PRODANOVIC: [Interpretation] Witness 186 was asked by the

20 Prosecutor why DP6 asked her to remain in the house in Trnovace, and the

21 witness said because they were afraid for their future. She said, "We

22 wanted to live." Transcript page 2951. To the question "While you were

23 in the house were you afraid?" the witness said, "Yes." To the further

24 question "What were you afraid of?" the witness replied, "When DP6 and

25 Dragoljub Kunarac were absent, soldiers often came and stood under the

1 window." Transcript page 2951.

2 When asked further whether they ever considered fleeing, escaping

3 from the house and running away, the witness responded, "We did consider

4 it, but we had no where to go." To the question of my learned friends

5 from the Prosecution how DP6 and Kunarac treated them, whether they

6 behaved in a friendly way, whether they were nice, the witness replied, "I

7 don't know how to answer this question, but they did not maltreat us

8 physically or psychologically." Transcript page 2953.

9 This witness also said that Kunarac and DP6 were frequently absent

10 for days at a time and that they remained alone in the house and that they

11 had the key to the house.

12 To the Prosecutor's question whether they remembered an occasion

13 when a drunken soldier began to fire shots at the house, the witness

14 replied that she remembered that Dragoljub Kunarac was inside.

15 Witness 191 was there and so was she. DP6 was not there. She thought

16 that the soldier gave money to Dragoljub Kunarac. She thought he wanted

17 to be with her. She thought that she was protected by Zaga. He took him

18 outside and then he began shooting all around the house and throwing hand

19 grenades. Transcript page 2972.

20 It is surprising that this action by the accused Kunarac should be

21 seen by the Chamber as contact carried out because he claimed rights over

22 Witness 191, while she says that Kunarac protected her from another

23 soldier who wanted to rape her.

24 Your Honours, in paragraph 542 of the judgement, the last sentence

25 reads as follows: "Detaining or keeping someone in captivity without more

1 would, depending on the circumstances of a case, usually not constitute

2 enslavement."

3 I have set out the facts established during the trial, and none of

4 them falls outside the framework of this conclusion reached by the

5 Chamber. To what extent the conclusions of the Trial Chamber are

6 contradictory and unclear can be illustrated by the following example: In

7 paragraph 741 of the judgement. I will start reading from the third

8 sentence.

9 "The Trial Chamber is satisfied that Kunarac was aware of the

10 fact that DP6 constantly and continuously raped FWS-186 during this

11 period, as he himself did to FWS-191. It has not been established,

12 however, that Kunarac provided DP6 with any form of assistance,

13 encouragement, or moral support which had a substantial effect on the

14 perpetration of the individual rapes. Kunarac continued to come to the

15 house for about two months, but it has not been established, apart from

16 the incident charged and described in paragraph 10.1, that he was present

17 while DP6 raped FWS-186. It has not been shown either how Kunarac's

18 presence or actions could have assisted DP6 in his raping FWS-186; so

19 loose is the connection between the events at the house and his sporadic

20 presence there, it would stretch the concept of aiding and abetting beyond

21 its limits with respect to the actual rapes by DP6."

22 This is what it says in paragraph 741 of the judgement.

23 On the following page, summarising its findings, the Trial Chamber

24 concludes the following: "It has been partly proved beyond reasonable

25 doubt that on 2nd of August, Dragoljub Kunarac personally raped FWS-191

1 and aided and abetted the rape of FWS-186 by DP6."

2 So one page before, the Trial Chamber concludes this has not been

3 proved beyond reasonable doubt, only to conclude later on that Dragoljub

4 Kunarac aided and abetted the rape of 186 by DP6.

5 So on the basis all this, the Defence considers that Dragoljub

6 Kunarac cannot be held responsible for the crime of enslavement and that

7 he should be found not guilty on this count.

8 So this concludes what I have to say about enslavement. As for

9 the facts --

10 JUDGE JORDA: [Interpretation] Yes, please continue.

11 MR. PRODANOVIC: [Interpretation] Your Honours, I will now say

12 something in general about the crime of rape, and then I shall proceed to

13 talk about the facts on the basis of which the Chamber concluded that the

14 content -- conduct of my defendant represents the crime of rape and,

15 therefore, found him guilty.

16 The Trial Chamber found the accused Dragoljub Kunarac guilty of

17 the crime of rape under counts 2, 4, 9, 12, 19, and 20 of the indictment,

18 finding that this was proved beyond reasonable doubt or, in paragraph 578

19 and count 10 of the indictment, they were partly proved. The Trial

20 Chamber found the accused Dragoljub Kunarac guilty of rape under

21 Article 5(g) of the Statute in counts 4, 10, 12, and 20.

22 Before the Defence sets out its standpoint on the elements of this

23 crime, we wish to point out that it is -- it cannot be upheld that the

24 accused should be punished twice for the same conduct. It is not that

25 elements of several crimes were seen in the same conduct but with

1 different characteristics. What happened here was that the same conduct

2 was pronounced to be two criminal acts which runs counter to legal theory

3 which says that no one can be found guilty twice for the same conduct.

4 I will not go on to talk about the grounds on which he was found

5 guilty because we have already discussed this today.

6 The crime of rape as a war crime cannot be seen outside the

7 framework in which it is found in all legislations, more or less. We have

8 to start from the basic elements of this crime (A) sexual penetration,

9 whether complete or incomplete of the vagina or anus with the penis of the

10 perpetrator or any other object used by the perpetrator, the mouth of the

11 victim with a penis, or the use of coercion or force against a victim or

12 again a third person.

13 It seems that the law understands rape also to be all kinds of

14 sexual contact which is forced upon the victim, although the national

15 legislation of the former Yugoslavia only understood vaginal penetration

16 as rape while other forms of sexual mistreatment were characterised as

17 unnatural acts.

18 The question arises as to what extent the victim agreed to the

19 acts, and we hold that verbal resistance is not sufficient. Resistance

20 has to be real and constant against the person who is demanding the

21 commission of a certain act. The resistance must be made clear to the

22 perpetrator throughout the sexual act. In the view of the Defence, force

23 and threats must be real and must be evident, either against the victim or

24 a third person, leaving the victim with no choice and no other way to

25 protect herself or a person close to her except by complying and entering

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1 into a sexual relationship.

2 We have to evaluate the possible behaviour of a victim when the

3 victim belongs to an entity which is in conflict with the entity to which

4 the perpetrator belongs. Is it sufficient for the victim, in case of an

5 armed conflict, to be afraid that something could happen to her, whether

6 that she might be killed or injured, or if she did not agree to have sex

7 and agrees only because of that fear, and otherwise she would not consent,

8 whether one can hold that rape occurred.

9 The Defence considers that this issue should be approached with

10 much greater caution than was done by the Trial Chamber, because it seems

11 that the Trial Chamber took the view that it is sufficient to start from

12 the fact that there was an armed conflict at the time and that this fact

13 alone is sufficient to show that the victim was unable to resist the

14 demands for sex, and we shall discuss this further when I go on to speak

15 of facts connected to a particular event.

16 The Defence wishes to point out that the Trial Chamber has not

17 established beyond reasonable doubt that on the territory of the

18 municipality of Foca, there was a widespread and systematic attack on

19 Muslim women as a part of a policy of ethnic cleansing. The Defence will

20 show - and this was established during the trial - that the number of

21 victims of rape, which was established during the trial, on the

22 municipality of Foca cannot confirm the fact that there was a widespread

23 and systematic assault involving rape.

24 The Trial Chamber also failed to establish beyond reasonable doubt

25 that there was any kind of plan to commit rape as an instrument of ethnic

1 cleansing. Of 42 villages, including the town of Foca and the villages

2 Ustikolina, Miljevina, Josanica, provided by the Prosecution in a table to

3 show the ethnic composition of the population in the municipality of Foca,

4 Exhibit number 19, only inhabited places with over 200 inhabitants were

5 shown. The alleged rapes were committed only against women from the

6 village of Mjesaja, which, according to the Prosecution, consisted of 50

7 per cent Muslims and 50 per cent Serbs, and according to the Defence

8 table, in 1991, in the village there were 161 Muslims and 166 Serbs. This

9 absolute number, in relation to 161 Muslims, when viewed against 20.888

10 Muslims of the territory of Foca, and when this is compared to the total

11 number of Muslims, bearing in mind that some of these were men who had

12 already left their villages, this cannot be a basis upon which to conclude

13 that there was a widespread and systematic rape.

14 If one were to accept as proven that rapes were committed, these

15 alleged rapes were committed in several occasions against more or less the

16 same victims, who numbered 15, and in no case can this then be seen as

17 proof of a systematic and widespread attack. The number of victims

18 mentioned comprised three from the village of Gacko and one from

19 Kalinovik, and this does not support the conclusion reached by the Trial

20 Chamber that on those territories there was systematic and widespread rape

21 as part of a plan. It is evident that this was not widespread in the

22 municipality of Foca or the neighbouring municipalities.

23 Furthermore, the Defence wishes to point out that in the town of

24 Foca, during the armed conflict, there were no rapes, and that only one

25 witness who was allegedly a victim of rape was raped after the end of the

1 conflict in Foca. If one were to accept as true that this witness was

2 raped, this was an individual case which was not connected to the military

3 conflict, and therefore it could not be seen as part of a systematic and

4 widespread attack, as the Trial Chamber concluded.

5 On the entire territory of the municipality of Foca, there were

6 20.888 Muslim inhabitants and 18.335 Serbs. Therefore, throughout the

7 territory of the municipality of Foca, there were 2.559 more Muslims than

8 Serbs. In the town of Foca itself, however, there were 5.554 Muslims and

9 7.957 Serbs, which shows that in relation to the number of Muslims in the

10 town, there were 2.403 more Serbs than Muslims.

11 The Prosecution adduced Exhibit 19, showing 42 settlements in the

12 municipality of Foca with over 200 inhabitants. The Defence wishes to

13 point out that on the basis of the same exhibit, it was established that

14 there were 120 villages, and as is evident from these details, the victims

15 were all from a single village, Mjesaja. Therefore, the fact that the

16 alleged victims of rape were all from the same village, Mjesaja, leads us

17 to the conclusion that we cannot speak of a systematic and widespread

18 rape. The Defence does not challenge that there were individual cases in

19 which some older or younger women had, as they themselves said, sexual

20 relations which they were not willing to engage in with soldiers, but this

21 cannot in any way be connected to the armed conflict.

22 The Trial Chamber in its judgement does not give convincing

23 reasons to show that any act of rape, even if it was proved to have taken

24 place, was committed in a way that could connect it to the armed conflict,

25 and therefore Defence holds that the Trial Chamber failed to establish the

1 second important element, which is the nexus between the rape and the

2 armed conflict, which is necessary for the rape to be considered a war

3 crime. The Defence, therefore, maintains that these were individual cases

4 of rape, that there were few of them, and that they had no connection with

5 the armed conflict, and therefore they cannot be viewed as war crimes.

6 I have concluded the general part, and now, with your leave, I

7 would like to speak of the counts on which the accused was found guilty,

8 about the facts, that is.

9 The Trial Chamber established beyond reasonable doubt that

10 Witnesses FWS-75 and DB were raped in house number 16 in Osman Djikica

11 Street in the following manner: The accused Dragoljub Kunarac and a

12 soldier named Gaga took the Witnesses FWS-5 and DB to the above-mentioned

13 house, as mentioned in paragraph 5 on the indictment, and on this occasion

14 Dragoljub Kunarac raped DB, while FWS-75 was gang-raped by at least 15

15 soldiers, and that this took place on the 16th of July, 1992, or around

16 that date.

17 The Defence would like to point out that the date, the 16th of

18 July, 1992, or around that date, is vague. We don't know what "around

19 that date" means. "Around that date" is so unlimited that it cannot be

20 used to show the credibility of witnesses testifying to this event. The

21 Defence maintains that this event took place on the 3rd of August, 1992,

22 as the accused Kunarac testified. By his own admission, Kunarac did have

23 sex with DB, which means that there was penetration of the vagina with his

24 penis. The first element which has to be established as an element of

25 rape is not contested.

1 The second element, the use of physical force or of a threat, in

2 the view of the Defence, is non-existent. Witness DB admitted that she

3 herself took the initiative in this sexual act. Witness DB furthermore

4 said that during the sexual act, Kunarac did not use any force or threat

5 against her or against a person close to her.

6 As Witness DB explained, the sexual act happened on the basis of

7 her initiative, so it is quite clear that the accused Kunarac in no way,

8 and especially not by using force or a threat against DB or a person close

9 to her, that he did not break down her resistance in any way, because it

10 was Witness DB who initiated the sexual act, and she was active

11 throughout.

12 Witness DB in her testimony also said that she behaved in this way

13 because she had been threatened by a soldier nicknamed Gaga, who said he

14 would kill her if she failed to satisfy his commander. To the question

15 put by the Prosecutor where Zaga was when Gaga threatened her, Witness DB

16 stated that Zaga was entering the room and that she did not know whether

17 Zaga had heard Gaga's threat.

18 In his testimony, Kunarac said he did not hear the threat made by

19 Gaga to the witness, and it was only 15 days later that Gaga admitted to

20 him that he had threatened the witness and forced her to have sex with

21 him. As the accused Kunarac did not know that the soldier Gaga had

22 threatened Witness DB, he could not have known that Witness DB was

23 supposed to have sex with him.

24 The accused Kunarac had not been told by anybody that DB was not a

25 willing partner in a sexual act with him, and therefore he was unable to

1 conclude this from her behaviour. The Defence concludes that the second

2 element, the use of physical force or of a threat in order to break down

3 resistance to a sex act is in no way present, so in the absence of this

4 element, there can be no crime of rape. Therefore, the Defence considers

5 that the accused Kunarac should be acquitted of this act.

6 The rape of Witnesses FWS-87, 85, and 50. The Trial Chamber

7 established that the accused Kunarac, on the 2nd of August, 1992, took

8 from a school in Kalinovik several women who were transferred to the house

9 in Osman Djikica Street 16 and that then Kunarac went to Partizan and took

10 out Witness FWS-50, 75, 87, and DB and took them to the house in Osman

11 Djikica Street 16, where the women from Kalinovik were already, and that

12 he knew that the women would be raped in that house throughout the night.

13 Witnesses 75 and 50 were constantly raped by other soldiers.

14 The Trial Chamber established that on that evening, Kunarac raped

15 Witness 87 and that she was also raped by other soldiers. Furthermore,

16 the Trial Chamber established that the rapes led to serious harm and pain

17 to the victims, both physical and psychological, that they were taken to

18 the house in Osman Djikica Street 16 by the accused Kunarac in order to be

19 raped, and that this had been done only because they were Muslims. The

20 rape, therefore, was committed on a discriminatory basis, and from this

21 there follows the criminal responsibility of Kunarac under Articles 3 and

22 5 of the Statute.

23 The Defence wishes to point out that the Trial Chamber had no

24 grounds for this conclusion because, according to the testimony of Witness

25 87, this was not corroborated by any of the other witnesses. Witness 75,

1 DB, 191, 186 were all examined on this point, and none of these

2 corroborated what was said by Witness 87, although they were Prosecution

3 witnesses, and Witness DB is a sister of Witness 87.

4 This event, which happened on the 2nd of August, 1992, is subject

5 to three versions. One follows from the testimony of Witnesses 87, 75,

6 DB, and another witness, and all four witnesses confirmed that on the 2nd

7 of August, 1992, Kunarac took them out of the Partizan Sports Hall in the

8 evening and took them to the Osman Djikica Street number 16 house.

9 Witness 75 says that they were brought to this house and that the

10 accused Kunarac left and did not come back during the night, transcript

11 page 1431. The same was said by Witness DB.

12 Witness 50 said that she was raped by Kunarac on the 2nd of

13 August, 1992, that night. This witness made two statements to the

14 investigators of the Tribunal, on the 30th of August, 1995, and on the 5th

15 of September, 1995, and in neither of these statements does she mention

16 the accused Kunarac. At the trial, however, she said that he raped her

17 that night, not Witness 87.

18 As for the 2nd of August, 1992, all the witnesses say that this

19 event took place on the 2nd of August, 1992, because that was the night

20 when a loud explosion was heard when a mosque which was in the vicinity of

21 the house was blown up.

22 According to the second version, which was put forward by

23 Witnesses 191, 190, and 186, on the 2nd of August, these witnesses were

24 brought from the Kalinovik primary school to the house in Foca in Osman

25 Djikica Street. The witnesses say that they were girls in that house, and

1 Witness 191 said that she did not know any girls who were sexually

2 mistreated in that house. When asked directly by my learned colleagues

3 whether Zaga was there, Witness 191 replied that she did not remember Zaga

4 being there. Zaga had gone off somewhere. Transcript page 3153.

5 To the same questions, Witness 186 replied that she did not

6 remember Kunarac being in the house. Transcript page 2936.

7 To the question of my learned friends from the Prosecution,

8 Witness 75, when asked whether they had seen Zaga that night after he took

9 them there, the witness replied, "No." Transcript page 1431.

10 It should be said that the conclusion of the Trial Chamber that

11 Kunarac raped Witness 87 on the 2nd of August, 1992 is contradictory. The

12 Chamber believes the testimonies of the witnesses, and all of them except

13 for the victim herself, Witness 87, confirmed that Kunarac was there only

14 for a moment, only when he brought them there, and that after that he

15 left. There is no other evidence.

16 Your Honours, there is also a third version, and that is the

17 testimony of the accused Kunarac, who put forward an alibi saying that he

18 was at the Rogoj Pass that night, where there was fighting between the

19 Serbian forces and the army of Bosnia and Herzegovina. In 615, paragraph

20 615 of the judgement, the Trial Chamber found it was possible that Kunarac

21 took part in the fighting at the Rogoj Pass and that the fighting finished

22 in the early afternoon. In his testimony, the accused Kunarac said - and

23 this was corroborated by other testimony - that on the 2nd of August,

24 1992, the Rogoj Pass, which was to be taken - because the Muslim forces

25 had taken it the night before in a well-planned offensive - the fighting

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1 lasted all day, until the late afternoon, when, between 1700 and 1800

2 hours, the Muslim forces withdrew.

3 At around 1900 hours, the accused Kunarac arrived in Dobro Polje.

4 This was confirmed by DE --

5 JUDGE JORDA: [Interpretation] Mr. Prodanovic, excuse me for

6 interrupting you. I have the impression that everything that you are

7 arguing was already presented in your brief, all of these factual

8 elements.

9 MR. PRODANOVIC: [Interpretation] Your Honour, not in such detail,

10 because --

11 JUDGE JORDA: [Interpretation] Well, I do agree with you when you

12 say that that's true, not with so much detail. I'm thinking about your

13 colleagues. And as I told you, tomorrow there will be two hours and

14 fifteen minutes for the Defence. I'm telling you that I will stop you and

15 give the floor to the Prosecutor. Therefore, I'm asking you to keep that

16 in mind. Please finish with the issue of rape. Then there will be

17 torture. But come to an agreement with your colleagues. You'll have that

18 amount of time, and that has to include the time for the Judges'

19 questions. They will put some specific questions to counsel.

20 That is the work of the Appeals Chamber. You've got to choose.

21 You cannot develop everything from your brief. We've read your briefs.

22 We're working on them.

23 Please finish your discussion on rape. Tomorrow you'll speak

24 about torture, but agree with your colleagues about what you're going to

25 do. Please conclude with rape. We've already gone ten minutes beyond the

1 end of our proceedings. Think about the interpreters, who haven't had a

2 break. Please proceed.

3 MR. PRODANOVIC: [Interpretation] Your Honour, I have only half a

4 page to go, and we have agreed, and we will stick to the two and a half

5 hours.

6 JUDGE JORDA: [Interpretation] Only half a page. Well, if it's

7 only half a page. But there will still be only two hours and fifteen

8 minutes. So finish the half a page. But the exercise of the appeal is

9 not the same as in the Trial Chamber. You have filed briefs. You must

10 develop the major points in your arguments. Otherwise, we would have a

11 15-day hearing, and that is not the exercise that is conducted at the

12 Appeals Chamber. All right. Finish your half page.

13 MR. PRODANOVIC: [Interpretation] The Trial Chamber did not believe

14 the statement made by this witness. I'm saying that the Trial Chamber

15 believed Witness 87 only in part. This is the witness that was allegedly

16 raped by Kunarac. Between the 13th of June and the 1st of August, Kunarac

17 allegedly took her to the house in Osman Djikica on two occasions, and

18 both times she was raped by two Montenegrin soldiers. This is described

19 in count 5.2 of the indictment.

20 If the Trial Chamber believes that the incidents in count 5.2 have

21 not been proved beyond a reasonable doubt, then it had all the more reason

22 to consider that count 5.4 was not proved beyond reasonable doubt either,

23 because Witnesses 75, 87, 50, and DB did not confirm this. So the Defence

24 feels that Kunarac should be found not guilty of count 5.4 of the

25 indictment.

1 JUDGE JORDA: [Interpretation] Very well. I'll ask my colleagues

2 tomorrow that, once you've dealt with torture, whether they have any

3 questions. But for right now we are going to adjourn, and we'll resume

4 tomorrow morning at 9.30. The Court stands adjourned.

5 --- Whereupon the hearing adjourned at 4.13 p.m.,

6 to be reconvened on Wednesday, the 5th day of

7 December, 2001, at 9.30 a.m.

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