Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12641

1 Thursday, 19 July 2001

2 [Prcac Defence Closing Statement]

3 [Open session]

4 --- Upon commencing at 9.23 a.m.

5 [The accused entered court]

6 JUDGE RODRIGUES: [Interpretation] Good morning, please be seated.

7 Good morning ladies and gentlemen. Good morning to the technical booth,

8 the interpreters, the registry staff, the counsel for the Prosecution and

9 the counsel for the Defence.

10 We shall continue our hearing today with the closing arguments for

11 the accused Mr. Prcac, and so I give the floor to Mr. Jovan Simic.

12 MR. J. SIMIC: [Interpretation] Thank you and good morning, Your

13 Honours.

14 Your Honours, the Defence for the accused Dragoljub Prcac would

15 first of all like to express its gratitude to this Honorable Trial Chamber

16 for their understanding and permission for this case and the closing

17 arguments to be presented last though, according to the indictment, we

18 should have come immediately after the Kvocka case. The reasons for this

19 are well-known: we joined the case and the proceedings later and I thank

20 Your Honours for this decision.

21 The Defence would have liked to thank the Prosecution for fair,

22 correct cooperation and good faith. However, unfortunately, having read

23 the final brief and the closing arguments of Ms. Somers, we feel that that

24 would be hypocritical. This Defence counsel acted in sincerity and good

25 faith, and we feel there is no reason to express gratitude when we feel

Page 12642

1 that that would not be opportune nor proper.

2 The Defence considers this Tribunal and this Trial Chamber as the

3 highest level institution in the system of criminal justice. As has been

4 pointed out a number of times in these proceedings, we thought that all of

5 us were struggling for the truth, that we aspired for the truth, and that

6 that was the common goal of all of us. We thought that in this highest

7 and loftiest court, criminal court on this planet, we had to act in good

8 faith and we had no right to use untruths or half-truths. Many

9 legislations allow for the possibility for the accused not to speak the

10 truth in court or not to testify. In many systems, it is allowed for the

11 witness to give his interpretation of an event or to refuse to testify

12 about an event. However, there is not a single jurisdiction that

13 envisages the possibility for the parties in the proceedings, that is, the

14 Prosecution and the Defence, to use half-truths and untruths.

15 If the testimony of a witness is taken out of context then, Your

16 Honours, we arrive at a half-truth and a half-truth is worse than an

17 untruth. There was never any way of establishing the truth through

18 untruth. So this Defence claims that as far as its final brief is

19 concerned, at least, and the evidence we have presented, that we did not

20 draw testimony out of context, that our quotations are accurate, that the

21 facts we mention are accurate, and the conclusions we make and the

22 inferences we draw are subject to the judgement of the Trial Chamber.

23 In the first part of my closing argument, I will focus on the

24 half-truth and untruth which the Prosecution has presented in its final

25 brief and closing arguments. In the Prosecution in its final brief and

Page 12643

1 closing argument in point 435 said that the accused was a retired crime

2 technician, that he was mobilised as a reserve policeman, and assigned to

3 the Omarska police station.

4 In her oral arguments, the Prosecutor claimed that the accused

5 Dragoljub Prcac at the time of the outbreak of the war in Prijedor

6 municipality voluntarily joined and was beyond the age for mobilisation.

7 The Prosecutor claims that Dragoljub Prcac was not subject to mobilisation

8 and that he willingly joined the reserve police force for motives that are

9 later explained by the Prosecution.

10 In this way, the Prosecutor is attempting to give the impression

11 that the accused was fully conscious of the common purpose and that he

12 voluntarily, willingly joined in the persecution of non-Serbs in Prijedor

13 municipality. Such an allegation, Your Honours, is untrue. At the time

14 the war broke out, the accused was 52 years old and was a military

15 conscript.

16 The Defence has presented evidence including a photocopy of the

17 military booklet which shows clearly that at the end of the war in

18 Bosnia-Herzegovina in 1995, he was still treated a military conscript.

19 This allegation is corroborated by Exhibits D5/18A and B, D5/20 A and B,

20 D5/29A and B. This was also stated by the accused in his interview with

21 the Office of the Prosecutor, and this was stated by his son who testified

22 here, that is, Ljubisa Prcac.

23 The Defence submits that the real truth is that the accused, like

24 many others in those parts, was mobilised by force of law and that he

25 carried out his civil duty, and that failure to respond to the

Page 12644

1 mobilisation call would have constituted a criminal offence, which, as we

2 all well know here, in the situation that prevailed where the war was

3 ongoing, was drastically sanctioned. The Kvocka Defence has provided

4 exhibits to support this submission.

5 In point 434 of the closing brief, the Prosecution claims, and

6 allow me to quote, "Prcac himself admitted that Meakic told him that he

7 would replace Kvocka." This is another untruth. The accused never made

8 any such statement. Your Honour, this is not even a misinterpretation.

9 This is simply incorrect, an ill-intentioned presentation of a statement

10 given by the accused to the Prosecution on the 28th of April, 2000.

11 I should like to underline that the accused agreed to be

12 interviewed three days prior to the beginning of trial and 40 days after

13 his arrest. The accused tried, in every possible way, to be cooperative

14 and to provide information and he did provide information. We have no

15 right to completely distort a statement that is in the record.

16 What did the accused actually say? In answer to a question of the

17 investigator, Tariq Malik, whether he knew whether he replaced anyone, the

18 accused Prcac said, "Yes, I heard." "What did you hear?" "I heard that I

19 had come instead of Kvocka." "Who did you hear that from?" Answer: "From

20 Meakic." And Mr. Taliq Malik stops there.

21 We wanted to clarify this fact and to establish exactly when this

22 conversation was conducted - and our information is that it was conducted

23 long after the closing of the Omarska Investigations Centre - but we were

24 unable, because you know the condition of Mr. Prcac, and his health

25 prevented us from clarifying this point.

Page 12645

1 There is no evidence that the accused Prcac, from a conversation

2 with Meakic, came to learn that he had -- or, in fact, that he had been

3 informed in advance that he would replace Meakic. The whole sentence is

4 placed in the future, and from that it emerges that he knew that he would

5 replace Kvocka.

6 This kind of interpretation by the Prosecution has not

7 been made by chance, at least in the opinion of the Defence. The

8 Prosecution does not have any evidence at all to prove that Mr. Prcac

9 replaced Miroslav Kvocka. Statements by the accused of this kind would,

10 in the opinion of the Defence, solve the Prosecution's problem.

11 In the pre-trial brief and during the proceedings, the Defence

12 claimed that the accused came to the investigations centre; that he didn't

13 replace Miroslav Kvocka at a position, a position described by the

14 Prosecution as deputy camp commander; and that he came in as a

15 reinforcement. In the same paragraph, 434, of the closing brief of the

16 Prosecution, the Prosecutor alleges that sufficient evidence has been

17 provided to establish the earlier arrival of the accused Dragoljub Prcac

18 to the Omarska Investigations Centre.

19 As you know, the Defence has claimed from the beginning that

20 Mr. Prcac came to the Omarska Centre on the 15th of July - that is what

21 the Defence has claimed, and we hope that we have proven it beyond any

22 reasonable doubt - but this date does not suit the Prosecution.

23 Also, the Prosecution refers us to certain witness statements.

24 Zlata Cikota is apparently one of the witnesses on the basis of which one

25 can establish that the accused reached the investigations centre early.

Page 12646

1 Zlata Cikota, in the submission of the Prosecution or as alleged by the

2 Prosecution, said that Dragoljub Prcac was present in the Omarska

3 Investigations Centre on the 25th of June, 1992. Unfortunately, this

4 witness, Zlata Cikota, never said this, she never mentioned this date.

5 She never even gave us the possibility to infer such a conclusion. This

6 date does not exist in the transcript. That is the wish and the

7 assumption of the Prosecution which is not founded on any fact.

8 The accused did say in his interview with the Prosecution that, on

9 a number of occasions, he had carried food, medicines and clothing to

10 people he knew and others he did not know; to his friends, to his

11 neighbour Zuhra Mehmedagic; at first to Sead Cikota as well, whom he

12 didn't even know.

13 The Defence submits that Dragoljub Prcac cannot be liable for the

14 events in the Omarska Investigations Centre on the grounds of having

15 visited there, carrying necessities and assisting detainees, when he had

16 no position nor was he assigned to work in the investigations centre.

17 Another witness that the Prosecution relies on is Azedin

18 Oklopcic. The Prosecution, in their final brief, allege that the witness

19 Azedin Oklopcic stated that Prcac replaced Kvocka around the 30th of June,

20 1992. Such a statement by witness Azedin Oklopcic, Your Honour, cannot be

21 found in the transcript.

22 On page 1758 of the transcript, the prosecutor Keegan asked the

23 witness Oklopcic the following: "Do you remember how long he was in the

24 camp," referring to Kvocka, and the witness replies, "About a month. I'm

25 not sure." Then the Prosecutor goes on to ask, "Do you know Dragoljub

Page 12647

1 Prcac?" and the witness answers, "Not personally. Only by sight." The

2 third question of the Prosecutor: "During your stay in the camp, did you

3 see Dragoljub Prcac?" The witness answers, "Yes. He took over Kvocka's

4 role."

5 From this testimony, the Prosecution drew the conclusion that if

6 Kvocka had been there for a month and Prcac came instead of Kvocka,

7 everything happened on the same day, he simply replaced him; that the

8 accused Dragoljub Prcac replaced Kvocka on the 30th of June.

9 Witness Emir Beganovic, as claimed by the Prosecution, stated that

10 he saw Kvocka at the beginning of July, that he would see him until

11 mid-July, until Prcac replaced him. This statement by Witness Emir

12 Beganovic is also not to be found in the transcript.

13 In fact, Emir Beganovic testified here - and he was the first

14 witness of the Prosecution - and he stated, and the Defence refers to this

15 statement repeatedly in their final brief, that he has no direct knowledge

16 about the accused Dragoljub Prcac. He did not make any statements as to

17 when he came. He said he had heard from others that he was deputy camp

18 commander.

19 In answer to a question from the Defence, how many times he had

20 seen him, he said, "Only twice." He never mentioned a single date. Not

21 in a single statement of this witness can we find that the accused

22 Dragoljub Prcac came at the beginning of July to the Omarska

23 Investigations Centre to work there. All this can be found on transcript

24 page 1435.

25 The last witness called by the Prosecution and referred to support

Page 12648

1 its allegation that Dragoljub Prcac came to the Omarska Investigation

2 Centre before the 15th of July is Nusret Sivac. The Prosecution relies on

3 a statement of Nusret Sivac who testified that he had noticed, on a number

4 of occasions, he had noticed the accused in the glass semi-circular area

5 of the administration building during the incident which the detainees

6 described as "black Friday" when, according to witnesses of the

7 Prosecution, there was large-scale widespread beating of the detainees.

8 In chapter C.3.4 in paragraphs from 160 to 166 and in chapter

9 C.3.8, an analysis is made of the statement and credibility of witness

10 Nusret Sivac. This Defence claims that the witness does not have the

11 necessary degree of credibility, nor can this Trial Chamber trust his

12 testimony. Witness Nusret Sivac, Your Honours, stated many untruths

13 before this Trial Chamber.

14 Allow me to remind you of only some of them. The witness claimed

15 and stated here that he had seen the accused Mr. Prcac in July, in the

16 month of July, together with reporter, Slavisa Djukanovic and his camera

17 was walking around the investigation centre to film details, bodies, and

18 other propaganda material. Slavisa Djukanovic also appeared in this

19 courtroom. He said that he did not know Mr. Prcac. He stated here under

20 oath that he was in the Omarska Investigation Centre twice, and that on

21 both occasions, he went thereupon orders from his superiors as he was a

22 member of the military press centre. That both of those occasions were at

23 the beginning of the functioning of the Omarska Centre. That on both

24 occasions, he went to Room B1, and allow me to remind you that was the

25 room where Jesic, Mijic, and Vitorovic, the investigators were working and

Page 12649

1 that he filmed some documentation there which the interrogators had

2 collected in the course of their investigations.

3 Witness Nusret Sivac claimed in his testimony that he knew

4 Mr. Dragoljub Prcac and that he knows that he had a passenger vehicle.

5 The Defence, I hope, has proven beyond any reasonable doubt that Mr. Prcac

6 never had a car of his own and we have provided material evidence to

7 corroborate this as well as witness testimony. Witness Nusret Sivac

8 stated here in this courtroom that Mr. Prcac was present when the guards

9 beat to death the detainee Rizah Hadzalic, and they describe this incident

10 incorrectly.

11 The killing of Rizah Hadzalic occurred on the 12th of July, Your

12 Honours, and the Defence alleges that there is no evidence to show that

13 Mr. Dragoljub Prcac was present on that occasion and from the statement of

14 witness Nusret Sivac in reference to this event, and when asked who was

15 present when Rizah Hadzalic was beaten to death, from that answer, it is

16 possible to conclude that there wasn't a single person in the

17 investigation centre who was not present at that event.

18 Witness Nusret Sivac claimed that apart from all the guards,

19 Zeljko Meakic was present, and Dragoljub Prcac, and the women typists, and

20 all the interrogators -- let me not mention them all by name. The wish of

21 Nusret Sivac is to involve in the incident everyone he knew and all the

22 people who were present in the centre at the time. He goes further than

23 that. He tries to involve all the people he knew and the people he thinks

24 are guilty in that event.

25 Nusret Sivac, Your Honours, claimed that he was moved from the

Page 12650

1 garage to the pista to be closer to the water tank, or rather that he

2 moved there. In the cross-examination, he continued to claim that there

3 was a water tank on the pista. There is no such tank or reservoir, and

4 not a single witness of the Prosecution or the Defence testified that

5 there ever was such a water reservoir at the pista.

6 In any event, it is up to this Honorable Trial Chamber to judge

7 the testimony and credibility of this witness, but on the basis of the

8 testimony of these four witnesses, the Prosecution infers that Dragoljub

9 Prcac came to the Omarska Investigation Centre before the 15th of July.

10 But the Prosecution doesn't stop there. The Prosecution fixes a date and

11 says that the accused came to the investigation centre on the 11th of

12 July. How the Prosecution managed to establish this date, probably they,

13 alone, know, but the Defence understands full well why they chose this

14 date. In the first place, though the date has not been established of the

15 death of Rizah Hadzalic, it is thought to be on the 11th of July so, then,

16 it is convenient to place the accused in the investigation centre on that

17 date.

18 Then the next day is the 12th of July. The Serbian religious

19 holiday St. Peter's day when, allegedly, detainees were thrown on to a

20 fire. From the 12th of July onwards, we will later chronologically review

21 those events, but it was necessary for Mr. Prcac, in the absence of any

22 evidence that any crimes were committed during his time there, to be

23 involved in events he did not attend, he was not present in, and to move

24 his arrival two or three days forward. The Prosecution needed to fix

25 Mr. Prcac's arrival on the 11th of July when Rizah Hadzalic died, though

Page 12651

1 the Defence claims that this happened on the 12th of July, so as to have

2 one undisputed event at which Mr. Prcac would have been present.

3 In point 435 of the closing written brief, the Prosecution says

4 that the accused admitted that he frequently carried food to the Omarska

5 camp and then immediately goes on to say that he gave orders to the guards

6 in the Omarska Investigation Centre at the time to distribute that food to

7 the prisoners. For such an allegation, there is no evidence, Your

8 Honours. No one testified to this, and this is another fabrication on the

9 part of the Prosecution.

10 The Prosecution considers to have the right to make up a situation

11 and to describe it in the public when it is being broadcast by the media.

12 The accused did make a statement for the Prosecution, and he described

13 these events to the Prosecution. He said that at the beginning, very

14 briefly, upon Meakic's orders, he would carry parcels which were brought

15 by relatives of the detainees which were marked with the names and

16 surnames of those detainees, and that he handed over those parcels to the

17 guards at the entrance.

18 He also said that on a number of occasions, he had, himself,

19 carried parcels to his own friends or that he had carried parcels which

20 his wife had prepared for Zlata and Sead Cikota. There is no question of

21 him giving orders to the guards.

22 Your Honours, the distribution of parcels lasted for a very brief

23 time. This was stated by the accused in his interview and this was

24 confirmed by witnesses. Witness Mirko Jesic confirmed here that orders

25 had come from Simo Drljaca prohibiting the distribution of parcels and

Page 12652

1 prohibiting the release of prisoners from the Omarska Investigation

2 Centre.

3 The accused carried parcels four or five times whereas the

4 Prosecution would want us to believe that he carried parcels constantly,

5 and even this was not sufficient for them. They are claiming that he also

6 gave orders. This also is not by chance.

7 The Prosecution wishes to give us the impression that the accused

8 went to the Omarska Investigation Centre on a regular basis as a result

9 that he was fully familiar with the situation and developments in the

10 Omarska Investigation Centre. That from the police station department in

11 Omarska, he had the authority and could give orders to the guards and, as

12 they said quite clearly and unequivocally, that he worked in the Omarska

13 Investigation Centre and the police station department, from the police

14 station department. All this is incorrect and for which there is

15 absolutely no evidence.

16 The Prosecution goes on to allege that he's a cold-blooded

17 operator, and in support of this, reference is made to a witness

18 testimony. The accused, himself, was questioned by the Prosecution and

19 he, himself, said that the conditions were very poor. But the Prosecution

20 draws everything out of context. He said that only the working conditions

21 bothered him and no mention is made of the cross-examination when Witness

22 DD/10 said in response to a question from the Defence that he disagreed

23 with the beating and mistreatment. That he was a nice, dignified

24 honorable man. This is forgotten. This is something that should not be

25 known.

Page 12653

1 The Prosecution also makes no mention of the interview of the

2 accused. The accused said that he disapproved of everything. That he

3 appealed to Meakic to give him chlorine, that he appealed for more water,

4 that he tried in every way to assist the detainees as far as he was able.

5 The Prosecution goes on to allege that Prcac went to the Omarska

6 Investigation Centre in order to make material gains or to make a certain

7 profit. In this connection, let me first say that the Prosecution has

8 also quite incorrectly stated that witness Zlata Cikota stated in her

9 testimony that all the assistance given to her and her husband in the

10 investigation centre by the accused Prcac was due to his wish to make

11 financial gains. There is no such statement in the transcript, Your

12 Honours.

13 Witness Zlata Cikota testified before this Trial Chamber and said

14 that without the assistance from the accused Prcac, neither she nor her

15 husband would have survived the Omarska Investigation Centre. She

16 testified that even her children, who stayed at home, would have suffered

17 consequences had it not been for the assistance given by the Prcac

18 family.

19 I should like to remind Your Honours that almost all witnesses who

20 testified here about their departure from Prijedor municipality confirmed

21 that they first had to sign certain statements transferring their property

22 in its entirety to the Republika Srpska or a Serb as a gift.

23 Perhaps the only example of someone not having done that was Zlata

24 Cikota or, rather, the accused Dragoljub Prcac, who did not wish ownership

25 to be transferred to him but a contract, on the basis of which the accused

Page 12654

1 was given her weekend home, a garage, and passenger vehicle. That car was

2 immediately restored to the owner when requested, and Zlata Cikota left

3 Prijedor in her own vehicle.

4 The Prosecutor also claims that the accused Dragoljub Prcac made

5 it possible for the visitors from outside of the camp to enter the camp

6 premises to mistreat and kill detainees in the Investigations Centre in

7 Omarska. As an example, Mr. Keegan, in his opening statement, mentioned

8 Mr. Zigic. Ms. Somers, in her oral, final submissions, mentioned Slavisa

9 Djukanovic. There is not a single shred of evidence, Your Honours, nor

10 did any witness testify to that effect, that is, that an individual,

11 during the time when Dragoljub Prcac was there, an individual who did not

12 work in the camp would have entered the camp and mistreated detainees. We

13 do not find such a piece of information anywhere in the transcript.

14 The Prosecutor goes further to claim that the accused decided on

15 his own to remain in the Investigations Centre in Omarska. I must say

16 that this is, unfortunately, a pure fabrication. We do not find any

17 evidence, any witness who would have testified to that effect or any

18 exhibit that would have been tendered to that effect, to support this

19 claim.

20 The Prosecutor bases her allegation on the fact that Witness DD/10

21 stated that he had left the camp at the very end of its existence;

22 however, that portion is not quoted in its entirety. Witness DD/10 said

23 that he had left the investigations centre, and upon a question by

24 Mr. Saxon, who conducted the cross-examination, he asked him, "How come

25 nothing happened to you?" and the witness stated that the officials were

Page 12655

1 behind him as it all happened and that that was probably the reason why he

2 was not harmed in any way on that occasion.

3 Mr. Prcac did not benefit from such protection. He was not in the

4 position to make any decisions as to whether or not he would work in the

5 Omarska Investigations Centre. The Prosecutor, however, did admit that

6 Mr. Prcac was in a very bad financial situation. We called evidence to

7 that effect, and we heard witnesses who claim that Mr. Prcac had, indeed,

8 been in a very difficult financial situation from the very beginning of

9 his life to the moment he was arrested. Throughout his life, he struggled

10 to feed his family. He had to struggle against poverty, and that was

11 admitted by the Prosecutor. However, that fact does not suit the

12 Prosecution case, and therefore they alleged, without any evidence, that

13 his bad financial situation was actually the reason why he went to the

14 Omarska Investigations Centre in the first place, so that he would

15 blackmail prisoners and extort money from them.

16 Their allegation is based, in its entirety, on the testimony of

17 Witness Kugic. As you remember, Your Honours, Witness Kugic was called

18 here during the rebuttal case of the Prosecution. Witness Kugic, apart

19 from his personal information, did not tell any truth before this Court.

20 Witness Kugic claimed, and he stated here, that he had never been

21 criminally prosecuted. He lied to the Chamber when he said that. The

22 Defence tendered Exhibit D5/45 to challenge that claim of his. Witness

23 Kugic then did admit, "Well, yes, it did happen but I was very young."

24 Then Judge Riad asked him whether he had often engaged in such conduct,

25 and then he said, "No, it only happened once. We were very young. We

Page 12656

1 would often pick fights. And I even had a fight with one of the Defence

2 counsel."

3 Witness Kugic stated before the Chamber, and he confirmed this in

4 the statement given in Zagreb, that Abdulah Brkic, a witness who testified

5 before this Chamber and who barely survived the investigation of the

6 investigator, and that he was saved by a person from Banja Luka because

7 the investigator wanted to kill him, and he claimed that it was a very

8 rare occasion for someone to leave the investigations room alive.

9 Abdulah Brkic, about whom Kugic testified, stated, "Yes, I had

10 been interrogated. I was interrogated by an inspector from Banja Luka.

11 He gave me cigarettes; he gave me some water. He told the guard to take

12 me to have something to eat, and then he sent me back to the pista."

13 Witness Kugic testified before this Chamber that the detainees in

14 the hangar were made to eat live pigeons, to drink motor oil, but then he

15 stated that he had never been in the hangar and that it was actually

16 something that he had heard from others. Witness Kugic, furthermore,

17 stated that it was customary for the detainees to be taken into the

18 restaurant and then ordered to lie down, and whoever didn't lie down would

19 have been killed. And he even identified a particular guard who was the

20 ring leader, the guard Milutin Pavic.

21 We have heard a number of testimonies about this incident.

22 Mehmedalija Nasic was killed in this incident. But not a single witness

23 who testified later on confirmed the story as it was told by Witness

24 Kugic. Furthermore, Witness Kugic claimed before this Chamber that the

25 accused Prcac wanted to extort money from him. It is the Defence's

Page 12657

1 submission that Witness Kugic fabricated this event.

2 But then we are faced with the problem of motive. Why would

3 Witness Kugic lie that the accused Prcac had asked him for money in order

4 for him to be released from the investigations centre? The motive was

5 stated by Witness Kugic himself. He said that he had heard from some

6 people that his release from an earlier -- an early release from the

7 Omarska Investigations Centre, that is, from the 6th of August, had been

8 prevented by Mr. Prcac, and that was the motive why he testified against

9 him in this case. Everything else that he stated in this courtroom is a

10 pure lie. He came with the intention to revenge and he came with the

11 intention of presenting the situation in the camp in much worse terms than

12 it really was. It is for the Trial Chamber, of course, to assess the

13 credibility of the witnesses.

14 But he was not the only one to have made such fabrications. The

15 testimony of Witness Kugic should be placed in the context and the light

16 of the statement of Zlata Cikota and the testimony of Zlata Cikota. It is

17 not logical, Your Honours, for a person who wishes to enrich himself by

18 seizure and plunder to -- not to accept offers to sign -- offers to be

19 given property by signing a special contract to that effect. It simply is

20 not logical for such a thing to have happened, because Zlata Cikota stated

21 that if she wanted to come back, she was assured to be -- that her

22 property would immediately be returned to her.

23 Let me remind this Trial Chamber that Witness Ljubisa Prcac stated

24 that neither him nor his father nor anyone else from their family had ever

25 entered the premises, the garage or the weekend house of Zlata Cikota at

Page 12658

1 all.

2 By using such half-truths, the Prosecutor also describes the event

3 involving his work colleague Travancic. That event has also been

4 described erroneously. The Prosecutor has presented only a portion of the

5 interview here and has completely forgotten the second part of the

6 interview, as it has wanted to.

7 They said that the witness saw, when Reuf Travancic was -- that

8 the accused saw when Reuf Travancic was beaten in front of the "white

9 house," but that he was afraid of Meakic and couldn't do anything. He

10 already said that he knew Reuf Travancic, that he was his work colleague,

11 and if he had been able to choose, that he would have helped Reuf

12 Travancic in the first place. That is why he asked Meakic to try and

13 transfer Reuf Travancic to the "glass house," that is, the area near the

14 restaurant. Reuf Travancic was, indeed, transferred to the "glass

15 house".

16 The accused maybe did not react immediately; however, he did help

17 his former work colleague in a way. But the Prosecutor does not wish to

18 present it in such a way. They only want to present the accused as a

19 cold-blooded operator, and that he was observing his former work colleague

20 being beaten in cold blood. They're trying to describe him as someone

21 who -- how is that logical? How can a person refuse to help his former

22 colleague and still try to prevent a shooting?

23 I'm referring to the incident involving Karagic. He drew a gun

24 and he challenged the guards in order to protect the son of his former

25 friend. Witness Karagic was here and he testified that the accused had

Page 12659

1 not drawn a pistol and that he had said to the guards, "That's enough.

2 You will have enough time for that." And that is correct, that has been

3 correctly conveyed by the Prosecutor. However, they failed to mention one

4 other significant portion of the cross-examination.

5 Mr. Karagic admitted here that, at the Public Security Station in

6 Prijedor, he had been told that he would not leave Omarska alive, and he

7 confirmed here that he was afraid for his life and that that was the state

8 of mind he was in when he was in Omarska. He confirmed that he had been

9 ferociously beaten by a number of guards; that he had been forced to stand

10 against a wall with his legs spread apart and that he was made to face the

11 wall. He admitted this here, and we do not challenge that he did not see

12 what was happening at that time.

13 It is the submission of the Defence that we cannot base this

14 conclusion on the statement of a witness who said that he did not know

15 what was happening. He said that he had heard it. But, however, we still

16 do not know what it was that he had heard and from whom he had heard it.

17 He doesn't know whether Meakic was present there; however, Mr. Prcac, in

18 his interview, claimed that Meakic was indeed present there.

19 But what we find interesting here is the progress of conclusions,

20 because the incident involving Karagic is based on the incident and

21 half-truths involving Travancic. And by using such half-truths and

22 untruths, an attempt is here being made to ascertain the truth.

23 The Prosecutor has stated here publicly that the accused is also

24 guilty of the transfer of some women to Trnopolje - a very good

25 construction, indeed. The Prosecutor claimed that the accused was

Page 12660

1 responsible for the death of three women: Hajra Hodzic --

2 THE INTERPRETER: I'm sorry. I didn't hear two other names.

3 MR. J. SIMIC: [Interpretation] As regards -- but we do not know

4 anything about the fate of these three women, and Dragoljub Prcac is also

5 held accountable for that murder. Mugbila Besirevic, Hajra Hodzic. So

6 according to the Prosecution, Dragoljub Prcac was guilty because these

7 five women had remained, and that because we do not know what happened

8 with three out of those five women.

9 In their final brief, the Prosecution stated that the accused

10 Dragoljub Prcac had known that conditions were, indeed, very bad in

11 Trnopolje and that he made a conscience decision when he sent women to

12 where they would be exposed to worse conditions instead of leaving them in

13 the investigation centre which would have been contrary to the

14 instructions he had received. So if you send them to a centre from where

15 they would be released that was bad because of the conditions there. If

16 you leave them in a centre which they could not leave, they would be

17 exposed to -- they would disappear.

18 We made investigations to that effect, because the Prosecution

19 charge Dragoljub Prcac with responsibility for having made lists according

20 to which transfers and executions were made. Witness Mesic came here and

21 he testified as a fact witness, and he claimed that he had divided

22 detainees into three groups. He explained that with the need for better

23 operational aspect of the work. He testified that he had made a list of

24 women to be sent to Trnopolje in accordance with an order of Simo

25 Drljaca. He said that he had given the list to Dragoljub Prcac so that he

Page 12661

1 would read out from that list because he was present there and he was

2 standing close to them, and not because he would have had any particular

3 function or duty to that effect.

4 Witness Mirko Jesic, I must admit, is one of very rare witnesses

5 who came here and said that he had done something personally and which we

6 thought would have been incriminating. Witness Jesic explained how the

7 investigation service functioned, whether it was independent. According

8 to him it was, and it is also the submission of the Defence that it was

9 indeed independent. And he also said to whom investigators were

10 subordinated.

11 Let me remind the Chamber that proposals for arrests were

12 submitted by two investigators, Ranko Mijic and Mirko Jesic, and that was

13 approved by Simo Drljaca. There is not a single piece of evidence except

14 for some witnesses who claimed that the accused Dragoljub Prcac was

15 present at the Omarska Investigation Centre and carried some papers

16 around. Apart from that, there is not a single piece of evidence that he

17 was involved in any way in the drafting of those lists, nor that he was in

18 charge of those lists in any way.

19 Your Honours, it was not possible for him to know what would

20 happen with the people who had been called out, nor did we hear any

21 evidence about that. We cannot claim -- we do not have the right to claim

22 that if someone simply reads out from a list of detainees to be exchanged,

23 that that person would have had the mens rea and would have participated

24 in a common purpose doctrine if something happened to those people later

25 on. Dragoljub Prcac can only be held responsible for the events that were

Page 12662

1 taking place at the Omarska Investigation Centre.

2 The Prosecution also claims in their final brief that Dragoljub

3 Prcac had been seen on the 7th of August walking around the Omarska

4 Investigation Centre calling out names of detainees. Your Honours, not a

5 single witness supported that allegation. We didn't hear any witness who

6 was there after the 6th of August at the Omarska Investigation Centre, and

7 this is simply one more fabrication on the part of the Prosecution because

8 they wanted to prolong the stay of Dragoljub Prcac at the Omarska

9 Investigation Centre in this manner.

10 In order to support the claim that Dragoljub Prcac stayed at the

11 Omarska Investigation Centre longer, the Prosecutor claimed that Witness

12 AT on the 23th of August climbed up to the room where Dragoljub Prcac was

13 sitting at the time, that he addressed him as commander, "What will happen

14 with us," and that Dragoljub Prcac responded, "I don't know."

15 Witness AT testified before the Chamber and he stated that the

16 women had left for Trnopolje on the 3rd of August, and she was one of the

17 five women who stayed. Witness AT said that she had asked Dragoljub Prcac

18 at the pista what would happen with them and that he simply shrugged his

19 shoulders. Upon a question asked by the Defence if she could place the

20 event in any period of -- specific period of time, whether that was during

21 the first half of the month or the latter half of the month, the witness

22 responded, "No, I don't know." But the Prosecutor knows that it was on

23 the 23rd of August.

24 And finally, in their final oral submissions, they claim that

25 Dragoljub Prcac was guilty of all criminal offences he was charged with

Page 12663

1 under Article 3(5) of the Statute in the period from the 11th of July

2 until the 23rd of August, 1992.

3 The Prosecution also quoted an expert witness, Mr. Lakcevic, and

4 this Defence claims that expert Lakcevic never said anything of the kind,

5 perhaps somebody else did. In order to exert pressure, in order to make

6 an impression on the public, public opinion, the Prosecutor, in his

7 closing statement, claims and numerates a large number of persons who

8 disappeared or were killed in the Omarska Investigation Centre and places

9 the direct blame for this on Mr. Dragoljub Prcac.

10 The Defence will, later on, deal and enter into analysis of who

11 was killed when, but we should like to state at this point that there is

12 still not a scrap of evidence to show that somebody was killed during the

13 time that Dragoljub Prcac was present at the investigation centre of

14 Omarska.

15 The Defence would, at all events, like to draw the attention of

16 this Honorable Trial Chamber to some truthful facts. We are sure that

17 this Honorable Trial Chamber will not base its judgement on semi-truths

18 and untruths but we should like, nonetheless, to point out some facts

19 which we consider are indisputable or ones that are very important or

20 which are subject to analysis.

21 First and foremost, the Defence would like to remind the Trial

22 Chamber and this Court of the decision of the Trial Chamber itself with

23 regard to the respect of the Defence to bring in a motion for acquittal,

24 and the Trial Chamber ruled and said that in view of the complete absence

25 of evidence of the involvement of the accused Dragoljub Prcac before

Page 12664

1 arriving in the camp, he cannot and will not be responsible for the

2 possible crimes that took place in the Investigating Centre of Omarska

3 before his arrival regardless of what date that was.

4 In light of this decision, it is of crucial importance for us to

5 determine the date at which Dragoljub Prcac actually arrived in the

6 Omarska Investigation Centre and the date he left it. And to look at the

7 individual cases which represent crimes, that we should ascertain the

8 dates, the exact dates on which they took place.

9 Dragoljub Prcac, in the opinion of this Defence team, cannot be

10 guilty for a murder that took place in the month of July. He can,

11 perhaps, be responsible for a killing which took place between the 15th of

12 July and 6th of August but not, certainly, in the month of July. It was

13 the omission of the Prosecution to ascertain the date of death.

14 Therefore, the consequences of that omission cannot be borne by Dragoljub

15 Prcac.

16 The Defence in its final brief in section B, paragraph 27 to 46

17 analysed both Prosecution and Defence witnesses who testified to when the

18 accused arrived at work in the Investigation Centre of Omarska. All the

19 Prosecution witnesses stated that the accused came to work at the Omarska

20 Investigation Centre in the second half of July or towards the end -- the

21 last days of the camp before it was closed. Just one witness said, and it

22 was Witness AJ who said this, that Dragoljub Prcac came about 20 days

23 after his arrest which would make it some time around the 20th of June.

24 Not a single witness of the Prosecution testified to when

25 Dragoljub Prcac ceased to work in the Omarska Investigation Centre. Only

Page 12665

1 Witness AT testified, and I'm not going to repeat what that witness said,

2 but it is quite clear that he was not able to pinpoint an exact date. All

3 the Defence witnesses, however, confirmed that the accused Dragoljub Prcac

4 came to the investigation centre of Omarska in mid-July. Of course the

5 witnesses could not state an exact date. However, the Defence considers

6 that it has presented sufficient evidence and proof for a date, an exact

7 date to be ascertained. The exact date, the 15th of July, was also

8 confirmed by the accused and by the accused's son and there may be certain

9 doubts.

10 Witness Momcilo Stojakovic testified before this Court and he said

11 he did not see the accused Dragoljub Prcac around. That his mother died

12 on the 9th of July, and that because of that, he was given leave of

13 absence of 7 days. He was a guard at the entrance gate in the

14 investigation centre of Omarska. And that on the 16th of July when he

15 came to work the first day after his mother's death, he noticed Dragoljub

16 Prcac coming to work at the Investigation Centre of Omarska, and he asked

17 his colleague at work Popovic, Obrad Popovic, and he told him that

18 Dragoljub Prcac had started to work the day before.

19 Your Honours, the Defence considers that it is beyond all

20 reasonable doubt, that it was proved beyond reasonable doubt that

21 Dragoljub Prcac started work at the Omarska Investigation Centre on the

22 15th of July. All the Defence witnesses claimed and testified under oath

23 here that the accused left the Omarska Investigation Centre on the 6th of

24 August.

25 The Defence claims, furthermore, that the period which Dragoljub

Page 12666

1 Prcac spent in the Omarska Investigation Centre was the period from the

2 15th of July, 1992, up until the 6th of August, 1992, that is to say, 20

3 days. Twenty days working in shifts, or approximately 10 or 11 times.

4 The accused went into the investigation centre of Omarska 10 or 11 times.

5 Another question arises here and that is: When did the accused

6 Miroslav Kvocka leave the investigation centre? The Defence considers

7 that this is another vital fact. Many witnesses testified to these

8 circumstances and this fact. They were witnesses AJ, Azedin Oklopcic,

9 Witness AK, Witness AI, Witness B, Witness A, Witness Edin Ganic, and so

10 on and so forth. All of them claimed that Miroslav Kvocka left the

11 Omarska Investigation Centre at the end of June and, of course, they can't

12 say the exact date.

13 From the evidence provided we are able ascertain that accused

14 Miroslav Kvocka, on the 1st of July, was already at another duty post.

15 The Defence claims, the Defence of Miroslav Kvocka claims that he left the

16 Omarska Investigation Centre on the 23rd. We are satisfied with that. We

17 satisfied that it has been proved beyond any reasonable doubt that

18 Miroslav Kvocka did, in fact, leave the Omarska Investigation Centre at

19 the end of the month June.

20 So it is beyond any reasonable doubt, Your Honours, that from the

21 time Miroslav Kvocka departed and the arrival of the accused Prcac in the

22 Omarska Investigation Centre, we have a discontinuity of time, a time

23 lapse of at least 20 days and perhaps maybe more. Twenty days, for 20

24 days, the Investigation Centre of Omarska, as one of the main vehicles and

25 levers in the persecution of non-Serbs from the Prijedor municipality was

Page 12667

1 functioning without a deputy. There was no deputy.

2 Your Honours raised the question here many times as to how it was

3 possible that if Meakic was not present in the investigation centre,

4 somebody else did not take over his duties. The Defence wishes to ask:

5 How is it possible that during a set period of time, the Omarska

6 Investigation Centre was able to function at all without a deputy if he

7 existed at all? For 35 days, the investigation centre functioned without

8 a deputy commander or without the accused, that is to say, almost a third

9 of the time it was in existence it functioned without a deputy commander.

10 Let me remind you, and draw the Chamber's attention to one more

11 fact, and that is the Keraterm camp or investigation centre or collection

12 centre or whatever we like it call it. It was a very similar institution

13 both with respect to the number of detainees and the conditions that

14 prevailed in it, and also the time span that it last the for.

15 The Keraterm camp had no deputy komandir. In the Keraterm case,

16 nobody was accused by virtue of his position of being deputy commander,

17 and what is even more interesting is that the security of Keraterm was

18 provided by the Urije Prijedor 2 police station which was a police

19 station, by virtue of its structure before the war and, according to its

20 chain of command, it had a deputy commander, but the station department

21 did not.

22 If you draw a parallel between the two camps which are 20

23 kilometres apart in the same region, established by the same authorities,

24 during the same period of time -- which were in existence for the same

25 period of time, where the conditions were the same or similar, and for

Page 12668

1 which the Prosecution says had the same purpose, why did one of these

2 camps have a deputy and the other did not? And if that is such an

3 important function, how is it possible then that in the midst of the

4 existence of this Omarska Investigation Centre, there was no deputy

5 commander for more -- for a longer -- for a period of 20 days or more.

6 Now, the question arises here as to whether Mr. Zeljko Meakic was

7 the commander of the camp at all. The Defence claimed in its opening

8 statement as well, and presented sufficient evidence in the course of the

9 trial and I hope proved and showed beyond any reasonable doubt that the

10 Prosecution quite certainly did not prove that Zeljko Meakic was indeed

11 the camp commander.

12 Witness Mirko Jesic explained the competencies of the

13 investigators and to whom they gave their report and to whom they reported

14 for duty every morning. This was not Zeljko Meakic. The person they

15 reported to was Simo Drljaca. Perhaps my colleague considers, and she

16 said that this is a legal absurdity. Perhaps it is. But let us look at

17 the facts.

18 The sole witness who testified before this Trial Chamber in this

19 courtroom, a Prosecution witness who was released from the Omarska

20 Investigations Centre, was Fadil Avdagic. Fadil Avdagic was released from

21 the investigations centre because he left by bus with the investigators to

22 Prijedor and there received a chit, a certificate, from Simo Drljaca.

23 Nobody else was released. Simo Drljaca had de facto power to order that a

24 detainee be released from the Omarska Investigations Centre. We have no

25 proof of Zeljko Meakic doing this.

Page 12669












12 Blank page inserted to ensure pagination corresponds between the French

13 and the English transcripts.


















Page 12670

1 The investigators, as a service, functioned completely

2 independently and autonomously, and this was borne out by all the

3 witnesses. The investigators or a portion of them had those

4 competencies. They were able to determine which rooms they would send the

5 detainees to. The investigators were the people who implemented the

6 investigation and ascertained the facts. They ascertained whether a

7 person had been armed or not armed. But the Investigation Service was

8 independent. Neither Zeljko Meakic or anybody from the security force had

9 any competencies and authority over the investigators.

10 As to the Banja Luka Special Unit, we have heard testimony from my

11 colleagues. My colleagues spoke about that special unit and I don't want

12 to dwell on that. But the unit and their commander Strazivuk were

13 independent. This unit was an independent unit working autonomously

14 within the frameworks of the Omarska Investigations Centre.

15 The army was present round the clock, nonstop, both in the complex

16 and outside the compound. These are facts which the Prosecution did not

17 show, but luckily we did have witnesses who testified to these facts,

18 although the Prosecution chose not to show them.

19 Witness T was here and testified, and he was characterised as an

20 extremist Mujahedin. [redacted]

21 [redacted]

22 [redacted]

23 [redacted]

24 know what his function was exactly, but we do know that he not have any

25 functions within the Omarska Investigations Centre. He was a military

Page 12671

1 man. And he said to the guard, Rade Ritan, whose affidavit this Defence

2 tendered, "Why have you brought me this one? He's not from Brdo. Take

3 him back." We have no evidence in these proceedings to show that anybody

4 from the security personnel could order the army anything.

5 Sifeta Susic testified that she was afraid of raped, of being

6 raped, and that she asked Meakic to help her. According to her testimony,

7 he said, "I can help you except if Cigo Radanovic turns up," once again

8 the army. The army was autonomous, independent, and acted accordingly.

9 At all events there were some other groups or services present

10 there. The Technical Service, the Territorial Defence, and they were

11 autonomous, likewise. We listened to the testimonies of two guards, Obrad

12 Popovic and Momcilo Stojakovic. We also examined Cedo Vuleta and many

13 others, who claimed that their directors were outside the Omarska

14 Investigations Centre and that they were civilian directors with a work

15 assignment, a work duty to perform.

16 What the Defence would like to say now and claims is that Zeljko

17 Meakic was not the camp commander. And if a deputy existed, the Defence

18 moves that he was not superior to everybody in the camp. He could only

19 have been a superior to the guards. The Defence feels that if a killing

20 did take place, we must ascertain who did the killing, who was responsible

21 for it.

22 The Prosecution has accused Dragoljub Prcac of being the deputy

23 camp commander, who came in June to replace Miroslav Kvocka on that post.

24 This claim the Prosecution bases on the fact that one man left and the

25 other man turned up. But there are no official documents to bear this

Page 12672

1 out. In the absence of any official and formal evidence and proof, the

2 only thing we can do is to compare the duties and function and behaviour

3 and hours of service, working times, of the accused Miroslav Kvocka and

4 Dragoljub Prcac.

5 In section C.3.1 of the final brief, the Defence analyses this

6 point, and we consider that there are no points in common, no common

7 denominators which could demonstrate that Dragoljub Prcac and Miroslav

8 Kvocka did, indeed, perform the same tasks or held the same post and

9 function. There is nothing in common, Your Honours, absolutely nothing to

10 note.

11 First of all, there were no common points noted by the Prosecution

12 witnesses. We analysed their testimonies. They described how they

13 remembered Dragoljub Prcac and Miroslav Kvocka, and they described them in

14 a completely different way, both their behaviour and conduct, the way in

15 which they performed their duties, the times they were present, their

16 working hours, and everything else.

17 The question now arises: Upon what basis does the Prosecution

18 make its conclusions and accuse Mr. Dragoljub Prcac of being deputy

19 commander at all? Only on the basis of witness statements and testimony.

20 Prosecution witnesses testified here; they presented certain arguments

21 during their testimonies.

22 Now, what is it that indicates that Dragoljub Prcac was the deputy

23 commander? Let us take a look at that.

24 Before this Trial Chamber, we heard the testimony of 45 witnesses;

25 eight witnesses did not testify about the Omarska Investigations Centre;

Page 12673

1 37 witnesses did testify about the Omarska Investigations Centre. Of

2 those 37 witnesses, 23 witnesses make no mention of Dragoljub Prcac in the

3 context of him having a function of any kind or not. They simply don't

4 testify about that.

5 It is the position of this Defence that the Prosecution was

6 duty-bound, and this was stated also yesterday by my colleague

7 Mr. O'Sullivan, it was their duty to ascertain that fact. We consider

8 that if nobody testified to certain facts and circumstances, that they

9 know nothing about those facts and circumstances.

10 Fourteen witnesses, furthermore, testified as to the function that

11 Mr. Prcac did hold; four of those 14 witnesses say they had no direct or

12 immediate knowledge. All of them say, "We have heard," "we heard," et

13 cetera. This leaves us with ten witnesses. The Defence did not wish to

14 give the impression to think whether anybody would take this -- and Azedin

15 Oklopcic also testified to the function of Dragoljub Prcac. In his

16 testimony, Azedin Oklopcic says that "If somebody mentioned a name to me,

17 I would put him on the list."

18 So ten witnesses testified to the function performed by

19 Mr. Dragoljub Prcac. Some of them said he was a deputy; others said he

20 was the commander; others, yet again, said he was the warden or manager;

21 and others said that he was an administrative worker. There is no common

22 position as to his function.

23 If we analyse which of these ten witnesses said something in

24 concrete terms, said Dragoljub Prcac did this or ordered somebody that or

25 took the initiative to do this, or things of that kind, then we come to

Page 12674

1 number 2; that is to say, only two witnesses spoke in concrete terms as to

2 what Mr. Dragoljub Prcac actually did, and on the basis of this, they

3 might have gained the impression that he was the deputy commander. These

4 two were Nusret Sivac and Witness K.

5 We've already talked about Nusret Sivac and his credibility. I

6 don't want to tire the Trial Chamber by going into that again. He said

7 that at some point in mid-July he asked a guard to transfer a man from the

8 "white house" to Mujo's house because they had heard that he had been

9 beaten up, and that he had said that this had to be okayed by Dragoljub

10 Prcac.

11 [redacted]

12 [redacted]

13 [redacted]

14 Those are the sole two actions, if they are correct at all and not

15 fabricated, which indicate, point to something that perhaps Dragoljub

16 Prcac did do, or which could indicate that he had a function to perform in

17 the camp, and that he wasn't an ordinary administrative worker or duty

18 officer or guard.

19 Witness A --

20 THE INTERPRETER: Or K, I'm not sure.

21 MR. J. SIMIC: [Interpretation] -- we talked about him at length

22 here. Mr. Fila provided sufficient evidence about this witness'

23 credibility, and we consider that this Defence team has provided

24 sufficient evidence as to the credibility of Nusret Sivac or ...

25 Nonetheless, I would like to look at these two actions once again

Page 12675

1 and to ask this Honourable Trial Chamber whether actions of this kind are

2 sufficient grounds for somebody to claim that Dragoljub Prcac, even if he

3 did perform these actions, was indeed a deputy camp commander.

4 Let me remind you that Esad Sadikovic, the doctor who helped the

5 detainees in the Omarska Investigations Centre, on many occasions and in

6 many places was seen helping people, giving medical treatment, assisting

7 people. Nobody ever said that he needed somebody's permission to do

8 this.

9 Not to waste time, let me just stress that Nusret Sivac himself,

10 in his testimony here, said that "I moved from the garage to the pista for

11 me to be nearer to the water tank or reservoir."

12 There is no evidence, without reasonable doubt, to show that the

13 Prosecution has shown that it was necessary to have special permission by

14 a superior, a deputy commander or commander for somebody to move from one

15 place to another, or for somebody to see Esad Sadikovic and to get help

16 from him.

17 So the conclusion is made on the basis of the assumptions and

18 personal experiences of some Prosecution witnesses, but there is not a

19 scrap of concrete evidence or proof, nor is there a common opinion of the

20 function that the accused had in the Omarska Centre. Some say he was

21 commander, deputy commander, warden, administrative worker, manager, or

22 perhaps none of those things.

23 The Defence considers that faced with a situation of this kind,

24 one must apply the principle of in dubio pro reo.

25 Your Honours, I have 15 to 20 more minutes, but I thought that

Page 12676

1 this might be an opportune moment for us to take a break.

2 JUDGE RODRIGUES: [Interpretation] Yes, you're quite right,

3 Mr. Jovan Simic, this is an opportune moment, and we're going to adjourn

4 for half an hour.

5 --- Recess taken at 10.50 a.m.

6 --- On resuming at 11.28 a.m.

7 JUDGE RODRIGUES: [Interpretation] Please be seated.

8 Mr. Jovan Simic, you may continue, please.

9 MR. J. SIMIC: [Interpretation] Thank you, Your Honours.

10 The Defence would like to once again repeat that we submit that it

11 has been proven beyond any reasonable doubt that Simo Drljaca was the main

12 and de facto commander of the Omarska camp. Allow me to refer, once

13 again, to Prosecution Exhibit. That is the feature film by Peggy Marshall

14 who, at the end of July, beginning of August, 1992, after talking to

15 Mrs. Nada Balaban stated that she was interviewing the camp commander, and

16 then she released this interview with Simo Drljaca.

17 At that point in time, he was in his office, unarmed, in a large

18 room full of documents, and he really behaved like a commander. We have

19 already referred to Witness Fadil Avdagic who testified here that he was

20 released from the Omarska Investigation Centre in mid-June upon approval

21 of Simo Drljaca himself.

22 Let me mention another detail, and that is the document that was

23 disclosed to us as exculpatory material for the accused Mladjo Radic from

24 the Tadic case where the Defence counsel Wladimiroff also testified in

25 this Tribunal and presented the conversation he had with Simo Drljaca. I

Page 12677

1 think it was in 1995.

2 He said that he went to see Simo Drljaca at that time. That he

3 asked for his assistance to be able to defend Mr. Tadic and that, at the

4 time, Simo Drljaca told him, "No one will testify from these parts. If

5 somebody does testify, he will get a bullet in his head." This is a

6 similar sentence to the one Simo Drljaca addressed to the accused

7 Dragoljub Prcac when he ordered him to transfer to the Omarska

8 Investigation Centre.

9 Therefore, in the submission of this Defence, Simo Drljaca is the

10 de facto camp commander. Zeljko Meakic may only be a komandir or

11 commander of the security of the investigation centre. The camp or the

12 investigation centre functioned on two occasions without a person who

13 would allegedly be the deputy commander from the end of June to the 15th

14 of July, and from the 6th of August until the 23rd of August.

15 By analysing witness testimony of witnesses of both the

16 Prosecution and the Defence, we can allege that it has been proven beyond

17 reasonable doubt that the accused Miroslav Kvocka performed the duties of

18 a uniformed officer as part of the security, and that the accused

19 Dragoljub Prcac performed a mixture of duties of an administrative officer

20 and a person who, in the police, is called the duty officer. They had

21 nothing else in common except for being in the Omarska Investigation

22 Centre, nothing in common between Kvocka and Prcac. Nor can we draw any

23 conclusions from witness testimony that they had identical duties which

24 they would have had to have if they held the same positions as alleged by

25 the Prosecution.

Page 12678

1 The Defence wishes to underline that the Prosecution has not

2 proven beyond reasonable doubt that Prcac was a deputy commander of the

3 investigation centre Omarska and, as a result, this Trial Chamber should

4 acquit him regarding the provisions under Article 7(3). As for the

5 charges against Dragoljub Prcac pursuant to 7(1) of the Statute, the

6 Defence says that there is no evidence to show that he was a deputy, nor

7 that he had any command responsibility.

8 Also on the basis of analysis of the statements of both

9 Prosecution and Defence witnesses and the exhibits tendered, there is no

10 question that the accused ever committed any criminal offence under

11 Articles 3 and 5 of the Statute. So he did not execute, plan, instigate,

12 issue orders, or aid and abet, or in any other way participate in the

13 planning, preparation, or commission of the crimes of which he is

14 charged.

15 The Prosecution, under Article 5, listed the names of prisoners

16 whom they consider to be missing, to have been killed, or tortured, held

17 under inhumane conditions, or humiliated, for which the accused Dragoljub

18 Prcac is held liable. Thus the Prosecution says that Dragoljub Prcac is

19 guilty for the death of Omer Ecimovic. Omer Ecimovic was in the

20 investigation centre but the date of his death is unknown but there are

21 witnesses who, from whose testimony one can roughly estimate when this

22 happened. Zlata Cikota testified that Adil Ecimovic and was taken and

23 that after, she never saw him again. That he was taken away on the 7th of

24 July, 1992, and after that Omer Ecimovic was taken out and left.

25 The Prosecution also alleges, that the accused Dragoljub Prcac is

Page 12679

1 responsible for the disappearance of Ago Sadikovic. Ago Sadikovic,

2 according to the testimony of Zlata Cikota, was taken to the hangar and

3 was killed there with two shots. Sifeta Susic said that Ago Sadikovic was

4 taken towards the "red house" and that she never saw him again, and the

5 body was not seen, nor is there any evidence that this occurred in the

6 Omarska Investigation Centre.

7 For a certain number of detainees, the Prosecution claims that

8 accused Dragoljub Prcac is directly responsible for them. There is no not

9 a single piece of evidence that any one of these persons was killed in the

10 Omarska Investigation Centre. Many witnesses have testified here, and

11 they have all confirmed that it was customary if someone was killed to be

12 placed next to the "white house." That is how the prisoners were able to

13 establish who was killed and when.

14 In the case of Buho Kapetanovic, Ziko Crnalic and his son, Caruga,

15 Mujo, by whom the room was named Mujo's room, a certain number of

16 intellectuals, Dr. Pesic, Begic, and others, the Prosecution says that

17 Mr. Drago Prcac is responsible for them. They disappeared at a time when

18 Mr. Drago Prcac was in the Omarska Investigation Centre. They say

19 consciously or unconsciously, in good faith or not, the Prosecution seems

20 to forget that in that period, there were exchanges of prisoners on a

21 number of occasions, and the Defence claims now that Dragoljub Prcac

22 cannot be held responsible if criminal offences were committed outside the

23 Omarska camp.

24 There is no evidence that he knew, in any way, or could have known

25 that the persons who were being sent for exchange could be executed or

Page 12680

1 were allegedly executed. The Prosecution also tells us that Mr. Dragoljub

2 Prcac is responsible for the torture of Sifeta Susic, Munevera Mesic,

3 Mugbila Besirevic, and Mirsad Kugic.

4 Sifeta Susic was threatened with rape. This Defence has already

5 mentioned that. If we look carefully at the transcript, this threat and

6 her conversation with Zeljko Meakic took place in the first 7 to 10 days

7 of her detention and she was arrested around the 24th of June, 1992,

8 possibly as alleged by the Prosecution on the 30th of June which the

9 Defence claims is not correct.

10 Munevera Mesic and Mugbila Besirevic were subjected to torture by

11 an unknown guard or a person from outside the camp. Let me remind the

12 Trial Chamber a cross was cut into one of them as claimed by Zlata Cikota

13 and some other witnesses. The other was threatened to have her breasts

14 cut off, but the date of that incident does not figure in the transcript.

15 Now, why should we claim and what right do we have to claim that that

16 incident occurred precisely while Dragoljub Prcac was working at the

17 Omarska Centre? This Defence was already referred at length to Mirsad

18 Kugic, and there's no need to go back to that again.

19 Mr. Prcac is also being charged for detention under inhumane

20 condition. The Prosecution claims that he had effective control over the

21 transfer of detainees and they referred to Mesan Omer who claims that on

22 the 6th of August, when calling out prisoners, 50 of them who appeared to

23 be a surplus, that he simply transferred them to the garage. The

24 Prosecution forgets that Omer Mesan who testified here did not identify

25 Dragoljub Prcac. How, then, can we be sure that it was, in fact,

Page 12681

1 Dragoljub Prcac?

2 Many witnesses of the Prosecution have confirmed here that the

3 reading out of the lists on the 6th of August was carried out by a number

4 of guards. This was also confirmed by Defence witnesses. It was no

5 privilege for a person to have come out and read a list at a certain point

6 in time. Other proof that the Prosecution relies on is the reading of a

7 list of the names of women who were then transferred to Trnopolje. We

8 have heard a lot about that in this courtroom.

9 Witness Mirko Jesic came and said, "I wrote that list upon orders

10 from Simo Drljaca." Even that is not important whether it was upon Simo

11 Drljaca's orders. What is important is that it was not compiled by

12 Dragoljub Prcac, nor was that any part of his duties.

13 The Prosecution also alleges that the accused Dragoljub Prcac was

14 authorised to determine the daily conditions in which the prisoners were

15 held, but they do not tell us on what grounds they claim that. There is

16 no evidence to prove that Dragoljub Prcac had any such authority.

17 The Prosecution claims that Drago Prcac was present when Rizah

18 Hadzalic was beaten to death. The Defence claims that at that time, on

19 the basis of everything we have said so far and for which we have provided

20 evidence, that Dragoljub Prcac, before the 15th of July, 1992, had no

21 duties in the Omarska Investigations Centre, nor was he working there.

22 The Prosecution claims that Dragoljub Prcac was seen all over the

23 place in the camp and that he passed by corpses and was able to see them.

24 The Defence claims that there is no such evidence to be found in the

25 transcript. Nobody said that they saw Dragoljub Prcac in the "white

Page 12682

1 house," in the hangar, in the "red house," or walking around the camp.

2 The witnesses who testified about the movement of Dragoljub Prcac

3 claimed that they saw him in Room B5 on the first floor, at the entrance

4 of the administration building, or passing by the restaurant. The accused

5 himself stated in the interview he gave to the Prosecution that he was in

6 the "white house" once and that he saw it, and that on the first day that

7 he arrived, on the 15th of July, together with Zeljko Meakic, that he saw

8 two corpses next to the "white house"; and that he asked Meakic then, "Why

9 aren't these removed?" and that Meakic said, "They have to be left there

10 because that is what Simo Drljaca ordered." The Prosecution goes so far

11 as to say that he was seen everywhere around the camp and that he saw

12 bodies, but there is no evidence to be found of that.

13 The Prosecution also claimed that Prcac was frequently seen in the

14 restaurant immediately after the beating of detainees started in the area

15 behind the administration building. To corroborate this, they refer to

16 Sifeta Susic's testimony who claimed that one day she saw Reuf Travancic

17 being brought in, who was beaten, and that at that point in time, the

18 accused Dragoljub Prcac headed in that direction. In answer to a question

19 from the Defence whether she saw where he went, witness Sifeta Susic said

20 no, but there were only two doors; the entrance door, the main door to the

21 administration building, and the door leading to a part of the

22 investigations centre where Reuf Travancic was beaten.

23 The Defence asked witness Sifeta Susic whether there were any

24 other doors out of the restaurant and she emphatically said no, that the

25 accused going in a particular direction could necessarily see what was

Page 12683

1 happening. That door exists and that can be seen in the photographs that

2 the Defence has tendered into evidence. It can be seen from the testimony

3 [redacted]

4 [redacted]

5 door, they could see the gates of the investigations centre.

6 The Prosecution claims that Mr. Dragoljub Prcac was present at the

7 time of the incident named Black Friday. The Prosecution did not even try

8 to establish the date of that incident. But if you look at the

9 transcript, [redacted]

10 [redacted]

11 Another witness confirmed that this was roughly at that time. He

12 said that this occurred roughly around the 4th of July, because the Black

13 Friday was the 4th of July. So certainly not during the period when

14 Dragoljub Prcac was working at the Omarska Centre. That witness is Kerim

15 Mesanovic.

16 Witness J claims that the accused Dragoljub Prcac was frequently

17 present at beatings and that he read out lists, after which people were

18 tortured and disappeared, and that he ordered the guards -- gave orders to

19 the guards to carry out those orders. When asked by this Defence, "Who

20 disappeared when he was read out from the list," the witness couldn't give

21 an answer. Asked, "What did he order," she didn't know, she hadn't heard

22 it. The same applies to Witness K.

23 The Prosecution charges Mr. Dragoljub Prcac with the incident on

24 Petrovdan, St. Peter's Day. St. Peter's Day is a Serbian religious

25 holiday. It is observed on the eve of St. Peter's Day, that is, between

Page 12684

1 the 11th and the 12th of July. At that time, Dragoljub Prcac had no

2 position, nor was he working in the Omarska Investigations Centre.

3 The Prosecution also claims that Dragoljub Prcac is responsible

4 for Sefik Sivac. He was brought to Omarska on the 8th or the 9th of

5 July. He testified about this killing and the date was not mentioned, and

6 it has not been established. The Prosecution, nevertheless, fixes that

7 date as the date when Mr. Dragoljub Prcac came to work at the Omarska

8 Centre.

9 But there is another piece of evidence, and that is evidence of a

10 person proclaimed dead, issued in Sanski Most, and which the Prosecution

11 has tendered into evidence. Witnesses Enver Henic, Dervis Zeric, and

12 Sefik Gutic claim that Sefik Sivac was killed and that he died in the

13 Omarska Investigations Centre on the 11th of July.

14 Dragoljub Prcac is also charged with the death of Islam Bahonjic,

15 which Sebit Murcehajic, who testified here, said that this occurred in

16 mid-July, but the first or second weekend of July. Fadil Avdagic says and

17 testified about this incident, but as mentioned by the Defence, he was

18 released from the Omarska Investigations Centre a day or two after being

19 interrogated, and that was on the 16th of June. So certainly not in the

20 second half of July, as arbitrarily claimed by the Prosecution.

21 Husein Crnkic died in the Omarska Investigations Centre, according

22 to the Prosecution, during the period when Dragoljub Prcac was working

23 there. But there's no date of death in the transcript. And so on and so

24 forth. There are many such points, Your Honours, and I am quite confident

25 that you will review all these facts and establish them.

Page 12685

1 The Defence has produced quite a lot of evidence to show what kind

2 of person Dragoljub Prcac is. Dragoljub Prcac comes from a poor family,

3 and because of that poverty, he only completed five grades of primary

4 school. He went to do his military service, after which he worked as a

5 manual worker. Then he did some additional training, and at age 31, he

6 managed to complete his secondary education, something that was customary

7 in those Yugoslavia in those days, to be completed by the age of 18.

8 He devoted his entire life to his family; that is all he had. He

9 had no other material goods or satisfactions in his life. He had his work

10 and his family. He also had the misfortune of his second child being born

11 with a damaged right hand, so he had to work even harder to engage in

12 farming to feed his family and to invest his small pension into the

13 treatment of his child.

14 This was testified to by all witnesses. No one stated here that

15 the accused was prone to going to coffee bars, to having fun with his

16 friends, to attending football matches, or any other such occupations.

17 Everybody said he was a quiet, a silent, honest man who engaged in

18 farming, or, as my learned friend said, he raised geese and chicken. That

19 is all he did.

20 He never engaged in politics. The Defence has provided evidence

21 that he was not a member of the SDS or any other nationalist parties in

22 those days. He was a member of the League of Communists of Yugoslavia, as

23 everyone was who worked in the police, because that was a precondition.

24 And Dragoljub Prcac had no chances of advancing in his career except by

25 working in the police.

Page 12686

1 So such a man, who fought his whole life to make ends meet for

2 himself and his family, in the position of the Prosecution, had a common

3 purpose to take his revenge on non-Serbs and persecute the non-Serbs in

4 the municipality; such a man knew and wanted to expel his neighbours and

5 friends he socialised with and whom he assisted from that area, and the

6 motive is to enrich himself.

7 We heard here Witness Obrad Popovic who explained to us what kind

8 of house Dragoljub Prcac lives in. It's not a stone-built house. It is

9 made of mud, lined with boards. There is no parquet, there's no toilet,

10 there's no TV set in that house. It's a small hut and a small piece of

11 land from which the Prcac family made a living.

12 Such a man came to the conclusion that it would be a good idea to

13 expel the Muslims from Prijedor municipality, and such a person had the

14 intent and mens rea to commit crimes against humanity. A man who had no

15 influence even in his own village of Omarska, nor was his opinion asked

16 about anything; a man who brought up his children in such a way that his

17 oldest son's, Ljubisa's best friend was the son of Sead and Zlata Cikota;

18 a man who hated Muslims so much, they would have us believe, that he

19 carried parcels to unknown Muslims in the Omarska Investigations Centre.

20 This is a man whose large family, many of whose members are married to

21 members of other ethnic communities, and all this can be found in writing

22 and has been repeated in this courtroom many times.

23 The Defence would certainly like to underline that charges on the

24 basis of common criminal purpose or plan surely should be contained in the

25 original indictment, as was the case in the Talic and Brdjanin

Page 12687

1 indictment. It is not fair and it is not just not to publish this in the

2 indictment for the Defence to know what their client has been charged

3 with.

4 In any event, the Defence has another question to put, and that is

5 the standard for defining an investigations centre or a camp. Is it

6 possible for one camp in the area to be a concentration camp, as Omarska

7 is described, whereas in the Celebici case, such an attribute is not

8 used? Is it possible if we have two camps or two investigations centres

9 or two collection centres, whatever we like to call them, in the same area

10 at the same time, they can have a different character and substance?

11 In any event, an essential precondition for guilt is intent, and

12 that means the awareness of the criminal offence and a clear decision to

13 participate by planning, instigation, or aiding and abetting, or

14 participation in any other way in that criminal offence.

15 The accused, Your Honours, had no awareness of a joint

16 participation in a criminal enterprise. He joined the Omarska Centre

17 under threat, frightening threat, and under coercion. Witnesses have told

18 us that. Such a person who spent his whole life struggling for himself

19 and his family had no choice. He could either have worked in the

20 investigation centre or could have got a bullet in his head, as has been

21 said.

22 So what possibility did such a small man have to defend himself

23 from a power broker such as Simo Drljaca? One may discuss whether that

24 was morally in order or not, but between two evils, he chose the lesser

25 one or the greater one, it depends on the point of view. He opted in

Page 12688

1 favour for his family, and I don't think that is strange. I think all of

2 us here would have done that, would have opted for our family. The only

3 thing that he could have done is disassociate himself or to assist as much

4 as he was able to, and that is what he did.

5 All the witnesses who testified to Mr. Prcac's conduct said that

6 he had very little contact with the guards. He stood apart. He acted in

7 a formal manner. He spent most of his time inside in the room. On the

8 other hand, others testified that he assisted, he brought parcels, he

9 never said or did anything bad to anyone. So the Defence claims that the

10 accused was not consciously and willingly a participant in the system of

11 repression that existed in the Omarska camp.

12 Finally, Your Honours, this Defence would like to comment on the

13 sentence proposed. The Prosecution tells us that there are no mitigating

14 circumstances. That is their position. We claim that there are.

15 First of all, there is the age of the accused Dragoljub Prcac. He

16 was arrested and the trial started 45 days after his arrest. This Defence

17 had 42 days to prepare the Defence since it was on the 28th of April, 2000

18 that we started with the interview with the Prosecution.

19 If we were to analyse the interview given by the accused Dragoljub

20 Prcac to the Office of the Prosecutor and the evidence presented here in

21 court, all which this Honorable Trial Chamber will establish is being the

22 truth, I allege that they will find no differences from the very beginning

23 Dragoljub Prcac has been telling the same story in this Tribunal.

24 Due to circumstance, Mr. Dragoljub Prcac's health has been

25 impaired here. We have all witnessed that. We never took advantage of

Page 12689

1 that, neither the Defence, nor the accused, to prolong or delay the

2 proceedings in any way, and every day was more than precious for us to

3 prepare our Defence.

4 I should like to remind this Trial Chamber and also express my

5 gratitude because I had a lot of problem together with my colleague Masic

6 to mail our final brief. Obviously the communication lines are not

7 functioning properly in Yugoslavia. You know that we would always comply

8 with our obligations on time, but we never took advantage of the

9 misfortune that has befallen the accused and his health to gain some extra

10 time. Every time when he fell ill, Mr. Prcac waived his right to be

11 present at the proceedings.

12 Another point of interest for the Defence is whether the position

13 of deputy commander automatically implies requesting a 35 year sentence.

14 Is there an individualisation of a sentence? Is there a difference

15 between Miroslav Kvocka and Dragoljub Prcac regardless in whose favour, or

16 is it sufficient to establish that somebody was deputy commander for him

17 to be sentenced to 35 years?

18 And finally, what is the difference between 35 years requested by

19 the Prosecution for Dragoljub Prcac and life imprisonment requested for

20 Mr. Zigic and Mladjo Radic. The Prosecution probably believes that

21 Mr. Prcac will, on his 100th jubilee anniversary leave the prison and go

22 to Prijedor to see if anything has changed there. Obviously the

23 Prosecution is not interested how old Mr. Prcac is, nor to what extent he

24 truly is individually responsible for what happened in the Omarska

25 Centre.

Page 12690

1 Finally let me tell this Trial Chamber, in Yugoslavia, there used

2 to be a judge called Cicvaric. He mostly tried political offenders and on

3 one occasion, he sentenced a man of 70, because he said something against

4 Tito, to 20 years of imprisonment. And cynically he asked him and

5 sadistically, "Do you have anything to say, and what is your opinion of

6 the sentence? And he said, "Comrade judge, I am not guilty and I really

7 don't see how I will be able to survive for 20 years when I am 70 years

8 old." And Judge Cicvaric said to him, "Well never mind, serve for as long

9 as you can."

10 If you accept the request of the Prosecution and sentence

11 Dragoljub Prcac to 35 years then you may use those same words. Thank

12 you.

13 JUDGE RODRIGUES: [Interpretation] Thank you very much, Mr. Jovan

14 Simic.

15 This brings us to the end of the closing arguments of the Defence

16 in this case and I think that we can now move on to the questions of the

17 Judges and let me give the floor to Judge Riad.

18 [Questions from the Trial Chamber]

19 JUDGE RIAD: Thank you very much, Mr. President.

20 I have only one question, perhaps, to Mr. Jovan Simic. You

21 mentioned that if Mr. Prcac moved the detainees from one place to another,

22 this was an act which did not require any permission of a superior. Do

23 you, by that, affirm that any guard had authority to move the detainees

24 from one place to another. Was that in harmony with the discipline of the

25 camp?

Page 12691

1 MR. J. SIMIC: [Interpretation] Your Honour, Judge Riad, I do not

2 claim that individual guards did that. I claim that everybody did that,

3 and evidence to that effect can be found in the transcript.

4 There is information and also there is testimony that certain

5 guards said that they were not able to do that without their commander

6 Meakic, and later, they claimed that they were not able to do that without

7 investigators. What we know for sure, and what has been proved here that

8 from the very beginning, the security of the Investigation Centre in

9 Omarska distributed detainees, sent them to individual premises.

10 There is information to the effect that investigators, once the

11 interrogation was completed, would send detainees to various places,

12 various rooms within the centre. That must have been decided upon the

13 type of categorisation of the detainees at that time. But if we have a

14 look at the testimony of Prosecution witnesses, we can see that very

15 often, very frequently, they changed the place where they where.

16 Sometimes it was on their own initiative, and sometimes with somebody

17 else's assistance. But in any case, for someone to be transferred from

18 one room to another, in our submission, Your Honour, it was possible for

19 that to be done by an individual guard. And in certain cases, it was also

20 possible to be done by the detainee himself, and the similar situation

21 probably existed in the Keraterm camp as well.

22 Many witnesses, even the ones who testified here in this case: V,

23 Y, said that, forever example, "I was in Room 1 and then I moved to Room

24 3." Nobody said that they needed specific permission to that effect, let

25 alone the permission of such a highly-placed individual within the

Page 12692

1 hierarchy. If this satisfies your question, Your Honour.

2 JUDGE RIAD: The fact that I gathered from what we heard that

3 really, the matter was in the hands of the investigators and people in the

4 camp, whether they were deputies, or commanders, or guards, were not

5 really decision makers. It was the investigators who decided what would

6 happen to any detainee and where he would be put.

7 So in that case, this would be in violation of the investigator's

8 orders, if I understood rightly, because everybody was supposed to go

9 somewhere according to the investigator's decision. That was what I

10 understood. So I'd just like to reconcile this with what you said.

11 My second question also relates to this one, in fact. Mr. Prcac

12 did commit -- did act charitably and humanely. We heard that many times.

13 He would give medicine, and he would act charitably.

14 Now, also this -- do you think or would you affirm that anybody,

15 normal guard, could do that in the camp with impunity and would this be in

16 harmony, in accordance with the system of the camp, or would he be taking

17 the matter in his own hands in acting separately from the camp with

18 some -- with some risk.

19 MR. J. SIMIC: [Interpretation] Your Honour, Judge Riad, I think

20 that many people from the security personnel assisted the detainees. We

21 have heard here that they did so secretly in most of the cases. But we

22 should have a look at the situation in a broader contest text. At the

23 very beginning, obviously, nobody knew how long the camp would exist nor

24 what would happen there. And if you would allow me, let me try to explain

25 this in greater detail.

Page 12693

1 The Investigation Centre in Omarska was established on the 31st of

2 May. People were being brought to -- people had been brought to the

3 Omarska Investigation Centre even before that, but it was empty so they

4 were returned to the Keraterm camp. At the beginning, help was allowed,

5 and people did help. Later on, pursuant to an order of Simo Drljaca, and

6 in view of the circumstances, the situation changed and it was forbidden

7 to help detainees so people did it secretly.

8 If you remember Husein Ganic who testified here, a Prosecution

9 witness, he claimed that at the very beginning, it was risky for you to do

10 that. That if anyone should discover that you are helping Muslims, that

11 your house could be burned down and you could be killed. So I think that

12 any help, if it was indeed provided, it had to be provided secretly or

13 through some private channels, but certainly not publicly.

14 JUDGE RIAD: So you are, in fact, maintaining that he ran a risk

15 by -- with this charitable actions and it was not just -- because first

16 you said it not need permission of a superior, it was allowed. But I

17 gather now that he really ran a risk.

18 MR. J. SIMIC: [Interpretation] At the beginning it was allowed,

19 but later on it was done with a risk.

20 JUDGE RIAD: Which one did he do? When it was allowed or when it

21 was risky?

22 MR. J. SIMIC: [Interpretation] Your Honour, he did it both ways.

23 At the very beginning, he took parcels to the Omarska Investigation Centre

24 when it was allowed. Then an order came, and Zlata Cikota testified that

25 he carried parcels even after that. The detained women claimed that he

Page 12694

1 had -- took clothing to Zumo Mehmedic. We cannot call evidence to all of

2 such instances, whether he would bring food now and then, a piece of bread

3 or a sandwich, but he also did it afterwards.

4 JUDGE RIAD: Thank you very much.

5 MR. J. SIMIC: [Interpretation] Thank you, Your Honour.

6 JUDGE RODRIGUES: [Interpretation] Thank you very much, Judge

7 Riad. Madam Judge Wald has the floor.

8 JUDGE WALD: I have several questions for the Prosecutor first,

9 and then some for the Defence.

10 My first question is whether or not it's your theory that other

11 defendants besides defendant Radic can be held responsible for the rapes

12 or sexual assaults. Is it part of your theory that, assuming that they

13 took place, that they were well enough known so that they were comparable

14 to the bad food, or the bodies lying near the "white house," or the people

15 forced to spend time on the pista or the beatings? I'm not entirely clear

16 whether part of the case is could be find to defendant Radic.

17 MS. SOMERS: Thank you, Your Honour. Under the concentration camp

18 theory, the category 2 of common purpose, we have alleged these crimes as

19 to other co-perpetrators.

20 JUDGE WALD: Yeah, but if you're going to do that, my reading of

21 those cases, you have to be willing to also allege that when people

22 entered this enterprise, which is the camp, that they were aware, in fact,

23 a lot of the camp cases were death camp cases in the Nuremberg situation,

24 and that they knew what the ultimate objective is.

25 Now, my question to you is: What evidence we've had of the rapes

Page 12695

1 suggests, you know, they took place at a time or with regard to the

2 smaller contingent of women, and I just wondered whether or not you really

3 are suggesting that anybody that joined the camp should have known that

4 rapes would be going on the same way -- your theory is they should have

5 known that beatings were going on and bad food, and that kind of thing.

6 MS. SOMERS: The evidence has shown, Your Honour, and prior to

7 when the allegations were predicated on notoriety. I mean it was a day

8 and night event. It wasn't an isolated incident. There were events

9 happening during the daytime, during the night-time. And again --

10 JUDGE WALD: We have evidence -- you have provided some evidence

11 of some, but in terms of the notoriety or the knowledge, you -- I'm just

12 trying to clarify your position. You really do think that you can say

13 that they were part of what everybody knew was happening in the camp.

14 MS. SOMERS: Certainly as to the superiors, as to Kvocka and

15 anybody on -- anybody above Radic who were on the same floor who would

16 have had the same type of access to conversation, or knowing the physical

17 layout or the proximity of the women to their office. That would be one

18 factor going to notoriety. But given the persons with whom we have

19 divided this responsibility as a co-perpetrator, yes, I think it's a

20 very -- I think it is our position.

21 JUDGE WALD: Okay. I've got your answer.

22 MS. SOMERS: May I comment further?


24 MS. SOMERS: Thank you. That witness Safeta Susic was told by

25 Meakic that people in town were discussing it. Notoriety of rape was

Page 12696












12 Blank page inserted to ensure pagination corresponds between the French

13 and the English transcripts.


















Page 12697

1 clearly there.

2 JUDGE WALD: The second question is -- this is a general question

3 but I want to clarify it. Are you using or basing your claim of

4 persecutions on basically the same, the same incidents that you are basing

5 your claims of murder, torture, and rape on?

6 MS. SOMERS: The same operative facts.

7 JUDGE WALD: The same operative facts. You've got different

8 theories, I understand, but it's the same basic set, core of facts.

9 MS. SOMERS: It is, Your Honour.

10 JUDGE WALD: Okay. Now, my third question is: Assume for the

11 moment, though you would not like to, but assume for the moment that the

12 Defence theory that, in fact, there were no superiors or that everybody in

13 this courtroom were only guards, were only ordinary guards, would you have

14 any theory of responsibility or would you consider the whole case to have

15 collapsed? What I'm getting at, obviously, is: Is all your theories

16 based upon a basic showing that these people had some superior authority

17 in the camp? If they were, in fact, only guards over there, would you

18 have any theory that you think could survive?

19 MS. SOMERS: There would still be the committing common purpose

20 theory which we feel certainly is applicable and has been argued

21 consistently.

22 JUDGE WALD: Well, actually, the common purpose theory on guards

23 if you go back to what little precedent we have in the Nuremberg cases, it

24 goes two ways, as I'm sure you are aware. There are some that say that if

25 anybody who enters a death camp and knows it's a death camp is going to be

Page 12698

1 responsible. On the other hand, there are also precedents that say that

2 if you are higher up, you are responsible for things that go down but if

3 you are a cook or a guard, then you have to have done something bad

4 yourself.

5 MS. SOMERS: There are -- certainly within this case there are

6 direct participation --

7 JUDGE WALD: Yes, I agree. I'm leaving out the counts against

8 defendants Radic and Zigic, of course, different category vis-a-vis

9 authority. But leaving those out and looking to the ones --

10 MS. SOMERS: I'm sorry.

11 JUDGE WALD: Go ahead.

12 MS. SOMERS: Taking the interpretation, we have based our case

13 heavily on what we think is very strong proof on superior authority.

14 JUDGE WALD: I understand that. I'm asking the ultimate

15 question --

16 MS. SOMERS: Having said that, having said that, we believe and we

17 have relied also on precedents so that we feel we could rely on the common

18 purpose theory even as to these individuals. I know there are two

19 different camps of -- excuse me, two different lines of precedent, and we

20 feel we are safe to rely and let the Chamber look at the entire set of

21 facts, and I believe it is extremely important to look at the entire

22 context of this camp to decide.

23 JUDGE WALD: How would you then distinguish the Celebici

24 appeals -- I think it's a ruling, in fact, that an ordinary guard has no

25 responsibility if he's just a plain guard, even if the people inside the

Page 12699

1 camp that he is guarding are, in fact, illegally detained? It's not his

2 responsibility to ...

3 MS. SOMERS: Even if there are ordinary guard status titles or

4 functions, as to these individuals, again, if one doesn't want to call

5 them shift leaders with the ability to give orders, they are hardly

6 ordinary guards, in that the other functions, the trust that was placed in

7 them by those who were in command positions, Meakic, it would suggest that

8 they are not ordinary guards, that they at no time were.

9 JUDGE WALD: Well, you are, in effect -- let me push you. You

10 are, in effect, conceding that if we were to adopt the Defence -- common

11 Defence strategy that they're ordinary guards, there wouldn't really be

12 anything left in the case.

13 MS. SOMERS: Well, no.

14 JUDGE WALD: You're not?

15 MS. SOMERS: No. I also wanted to point out so that the Chamber

16 does not perceive that we're going down the line of unlawful confinement

17 which --

18 JUDGE WALD: No, I know the difference. You're going to say that

19 that was just dealt with, unlawful confinement, and you're dealing with

20 confinement and inhumane and terrible conditions.

21 MS. SOMERS: That's right.

22 JUDGE WALD: But I'm simply asking you that. All right. I have

23 one other question on your theory of superior responsibility insofar as

24 7(3) is involved. Are you arguing that people like Kos and Radic, under

25 7(3), should have known of any abuses that were being created by members

Page 12700

1 of their shift? If you are assuming that they were shift leaders and had

2 some responsibility and command over their shift, are you saying that's

3 the limits of their authority? In other words, could Radic be held

4 responsible for crimes committed by people outside his shift, could Kos be

5 held responsible for crimes committed by people outside his shift, or does

6 the 7(3) responsibility end with those over whom they -- not Kvocka or

7 people you're claiming were deputy commanders, but the shift leaders.

8 MS. SOMERS: No. With 7(3) only, just the shift.

9 JUDGE WALD: So it's only where there is a direct line of

10 responsibility.

11 MS. SOMERS: That's right. Right. And of course we --

12 JUDGE WALD: All right. My last question to you is: Can you

13 elaborate a little bit more, because I was not sure I got a clear line,

14 between what you would be alleging were the crimes that came under a

15 common purpose theory and what crimes might come under an aiding and

16 abetting persecution theory, if there is, indeed, any difference?

17 MS. SOMERS: There were some. I think it may have been in

18 relation to --

19 JUDGE WALD: You said something at the end, but it went by so fast

20 I wasn't sure I understood it.

21 MS. SOMERS: It was in relation, I believe, to Kos about standing

22 by. Any person in a superior position who stood by and did nothing while

23 a crime was being committed would be viewed in the aiding and abetting

24 capacity. And, of course, one could also make it part of common purpose.

25 I think you can -- of the --

Page 12701

1 JUDGE WALD: So you're talking about, in your view, these are

2 overlapping theories.

3 MS. SOMERS: I think they can be.

4 JUDGE WALD: Common purpose being the bigger or --

5 MS. SOMERS: Common purpose is, yes, the bigger one, but I believe

6 that they are not necessarily exclusive of each other by any means.

7 JUDGE WALD: Okay. Thank you.

8 MS. SOMERS: Thank you. Your Honour, may I take this opportunity

9 just to make one point which I have, in the interest of not interrupting

10 the past two days. I just wanted to express a concern about much of the

11 argument of Mr. Stojanovic and Mr. Simic was to our brief which was filed

12 confidentially to protect witnesses, and I just needed to make sure that

13 that was known. There was much reference in detail to a confidential

14 filing. Thank you, Your Honour.

15 JUDGE WALD: Okay. I do have just a couple of questions and they

16 are questions for the Defence, just two I think, and they are questions

17 that actually relate to the theory that was raised by several defendants.

18 So what I'm going to do is simply ask the first question of Mr. Kvocka's

19 counsel, Mr. Simic, just on that theory, because he comes first in line,

20 and then maybe the second one for Mr. Kos's counsel.

21 Mr. Simic, I wonder, in line with Ms. Somers' response to my last

22 question, what you see from the Defence point of view as being the

23 difference between a common purpose theory and an aiding and abetting

24 persecution theory. And to be more specific, if the theory is that the

25 whole camp was a kind of persecution enterprise and that people who worked

Page 12702

1 knowingly in it - I say the theory, the Prosecution theory being that -

2 were aiding and abetting it, and the common purpose theory would be

3 anybody who joined it became responsible for whatever was happening there

4 that they knew about, what's the difference, in your view? Why would one

5 be worse than the other?

6 MR. K. SIMIC: [Interpretation] Your Honour, the Defence has

7 addressed the issue in its final brief from paragraph 55 onwards, and I

8 also want to point out that we had done that prior to the issuance of the

9 Talic decision. Our position is almost the same, generally speaking, as

10 the position indicated in that decision.

11 What we pointed out in our final brief and what I'm going to

12 repeat now is as follows: The common purpose theory was viewed by the

13 Defence as a certain form of complicity, where there is a great

14 resemblance to the aiding and abetting theory. We were faced with a big

15 problem of distinction between the aiding and abetting theory and the

16 common purpose theory.

17 While analysing a number of relevant decisions, we reached the

18 same conclusion, that the gradation in the Tadic decision has applied the

19 same principle, and that what we are dealing with is aiding and abetting

20 or a certain form of encouragement. It all goes to the issue of intent

21 and premeditation and the intent within the common purpose theory.

22 Let me also add that we do support the term which was suggested by

23 the Chamber in the Tadic case, that it should be referred to as common --

24 that it also -- that it belongs to the area of intent; where the accused,

25 the defendants, must have absolute knowledge about the existence of such a

Page 12703

1 plan, about the elements of such a plan, and there has to be a required

2 mental element, common mental element to perpetrate it.

3 Let me go back to the case which was mentioned by my learned

4 colleague here, the incident involving Mehmedalija Nasic. You have seen,

5 everybody said that Mr. Nasic went crazy, and the guard Dragan Popovic

6 opened fire. But from the evidence, it was obvious that Kvocka was not

7 present there. Do we have the existence of common mental element between

8 Mr. Kvocka and the perpetrator, Dragan Popovic? We believe that we are

9 dealing with responsibility under Article 7(1) here, which is a similar

10 type of responsibility.

11 But it all goes to the issue of intent, and that for this type of

12 responsibility to exist, a higher standard of intent must be met. We

13 cannot have the eventual intent here, for this possible intent dolus

14 eventualis here for this theory to stand. This issue was addressed in our

15 final brief.

16 JUDGE WALD: Yes, but --

17 MR. K. SIMIC: [Interpretation] If you will allow me, Your Honour,

18 one further thing I would like to add in response to your question. In

19 our final brief, we submitted that this should have been pleaded in the

20 indictment --

21 JUDGE WALD: I understand.

22 MR. K. SIMIC: [Interpretation] -- for the reasons indicated

23 therein. Thank you.

24 JUDGE WALD: Thank you. Thank you, Mr. Simic. Let me ask

25 Mr. O'Sullivan the second question.

Page 12704

1 Would it be fair, Mr. O'Sullivan, to say that the theory of

2 liability that you and I think some of your colleagues espouse would, in

3 this case, in a camp case of this type, would be limited to what a

4 particular individual either actually participated in personally or, under

5 7(3) have a sufficient knowledge to meet a 7(3) standard to know that

6 something was going on that that person -- there was a crime that that

7 person could either prevent or subsequently punish, that that's the

8 limitations? Or do you recognise any responsibility beyond personal

9 participation or 7(3) kind of knowledge and ability participation?

10 MR. O'SULLIVAN: Our position is limited to the way you've just

11 described it, and that's in keeping with the order of the previous Trial

12 Chamber on the bill of particulars that was attached to the indictment,

13 which there did specify which alleged acts under 7(1) Mr. Kos is alleged

14 to have committed. So we do limit the indictment to 7(3), as you've said,

15 and 7(1), as you have described it.

16 JUDGE WALD: One very short follow-up question on that. Assume

17 for a minute that somebody does have some degree of superior authority - I

18 mean some degree; leave it indeterminate at the moment - but it's unclear

19 whether or not that authority is sufficient so that that person could

20 order someone else to stop doing something or not to do something, do you

21 think that there is any duty commensurate with liability based on that

22 duty when somebody with that kind of somewhat ambiguous authority sees

23 mistreatment or is in the presence of mistreatment or knows mistreatment

24 of detainees is going on but is unclear whether they have the ability to

25 order the stoppage? Do you think that that person has any responsibility

Page 12705

1 to try, is what I'm saying, to do anything; to report the mistreatment, to

2 complain about it even in it's not crystal clear that that person could

3 issue a command order to stop it?

4 MR. O'SULLIVAN: Well, one area of law of the Tribunal which

5 appears to be settled and clear is 7(3), and you're either a superior or

6 you're not.

7 JUDGE WALD: What being a superior?

8 MR. O'SULLIVAN: A superior with material ability to order and

9 punish, to be in effective control, which can be de facto or de jure. But

10 that relationship to the perpetrator must be proven beyond reasonable

11 doubt for liability or responsibility to incur.

12 JUDGE WALD: So just let me give you a specific example and then

13 I'll let you sit down, and that is that suppose somebody who is a shift

14 commander -- now suppose there is such a thing as a shift commander and

15 the shift commander has some responsibility, some authority over, and that

16 shift commander is going by -- maybe his shift is over or something and

17 he's going by and he sees a guard in a different building or on a

18 different shift, not his shift, committing a misdeed or clearly a

19 mistreatment of the prisoner, it's not his responsibility, in your view,

20 his criminal responsibility, to try to do anything to stop that since it's

21 not clear that this is somebody under his command?

22 MR. O'SULLIVAN: That's correct, not under Article 7(3).

23 JUDGE WALD: Or under anything else that you would accept as

24 governing liability in a case like this; is that right?

25 MR. O'SULLIVAN: Well, it would -- if anything, it has to be

Page 12706

1 proven under an aiding and abetting theory that that person who did

2 nothing --

3 JUDGE WALD: Right.

4 MR. O'SULLIVAN: -- had a substantial effect upon the commission

5 of the other offence. But that must be proven beyond reasonable doubt.

6 JUDGE WALD: Okay. Thank you.

7 JUDGE RODRIGUES: [Interpretation] Thank you very much, Madam Judge

8 Wald.

9 I also have a few questions, some for the counsel for the

10 Prosecution and some for the Defence counsel.

11 Ms. Somers, we were speaking about the common purpose theory here,

12 and if I understand you correctly, you are basing your theory on the

13 principle, on the allegation that Zeljko Meakic was the camp commander,

14 and Kvocka and Prcac were deputy commanders or assistants to the

15 commander. There were also guards in the camp who had appropriate duties,

16 such as shift leaders, for example.

17 If we admit that the Defence theory that Meakic was not really the

18 commander but that Simo Drljaca was the de facto commander, if we accept

19 that, and if you also accept that it was under the command of Simo

20 Drljaca, there were several independent sectors, state security sector,

21 security personnel of the centre itself, that there were also the military

22 there and an independent administrative sector, and so on and so forth.

23 This type of organisation of the camp, how does it change, how does it

24 affect your position as regards the common purpose theory? That is, how

25 do you link your common purpose theory in respect of guards, that is,

Page 12707

1 Meakic and the guards, the link between Meakic and the guards, and other

2 independent sectors within the camp which existed at that time? How do

3 you establish, how do you make that link, in view of the common purpose

4 theory?

5 MS. SOMERS: Your Honour, I'd like to make sure I understand. If

6 Your Honour is suggesting that the only commander would have been Drljaca,

7 is Your Honour suggesting that everyone else was basically just another

8 equally-levelled person? First, I need to respond because the record --

9 the transcript, page 11753 of Mirko Jesic, who is named by Drljaca as one

10 of the coordinators, specifically refers to, "I immediately went to see a

11 leader or commander, Zeljko Meakic." So the record is in support, and he

12 was probably the highest-ranking Defence witness to have given testimony,

13 I think we certainly are sure the Chamber would give great weight to that

14 confirmation of what we have been asserting through the whole case.

15 The entire camp, the entire camp is a common system of repression

16 under common purpose theory. Those who participate knowing that, and

17 again we say for the sake of argument, if -- and we do not agree with it,

18 but if Meakic, Kvocka, Radic, everyone were equals, Prcac, still you would

19 have the common purpose doctrine affecting the common -- the system of

20 repression. So you would still have your ability to look at it. But I

21 think in the case of Omarska, there is so much evidence of direct

22 participation, even if they were not, for the sake of argument, if they

23 were not, for the sake of argument, 7(3) responsibility cases.

24 So 7(1) is covered on a number of levels for all persons in this

25 camp. We think the evidence is proven beyond a reasonable doubt that you

Page 12708

1 have the 7(3). But certainly you have ample 7(1) under both direct and

2 common purpose.

3 JUDGE RODRIGUES: [Interpretation] Very well. While we're still on

4 this issue, Ms. Somers, one more question: I think that in order to have

5 the common purpose theory, what is necessary is that several participants

6 have a will to accept the results or consequences which are produced by

7 each member of the group. I can, for example, not be present there, I can

8 be unaware of what is going on, but there is a common purpose and there is

9 a common plan. It means that I want the results produced by another

10 member of the group as well. There must be a certain intent which is

11 shared by everybody else or a will to share the consequences produced by

12 others.

13 What is the evidence that can support that? What is the evidence

14 for the allegation that each individual participant wanted the results

15 which were products of the conduct of other members of the group?

16 MS. SOMERS: There are some concrete examples that come right to

17 mind with Kos and Radic leading beatings, with beatings being some of the

18 manifestations of the inhumane treatment that was part of this system of

19 repression. The willingness -- in terms of willingness to

20 enthusiastically come to work. I think if I'm not wrong, Radic, I think,

21 missed only one shift, if I recall, for a birthday. I mean, in an

22 atmosphere where we have heard evidence that people come and go, if they

23 want to show, the degree of conscientiousness seems to be up to the

24 individual. The wilful, energetic participation, the regular

25 participation, is one indicium.

Page 12709

1 There are a number of statements that were issued -- not

2 statements, excuse me, a number of comments issued at the time, for

3 example, when Kos was watching beatings, saying, "Hit that one. Hit that

4 one," and they are very specific instances.

5 If the Chamber would like, I can go on. But the record will

6 support well that there was knowledge, encouragement, and even sometimes

7 when there was witnessing and failure to act, I mean, it's also that it's

8 okay, so what you're doing is okay, the scheme is fine.

9 JUDGE RODRIGUES: [Interpretation] Very well. Another question,

10 Ms. Susan Somers. As you know, Article 24 of the Statute or Article 87

11 and 101 of the Rules of Procedure establishes criteria and conditions for

12 sentencing and, as you know, the two essential criteria is the seriousness

13 of the crimes and the personal circumstances, those are the two essential

14 points in addition to the others that you are well aware of, the other

15 penalties and the sentencing in ex-Yugoslavia.

16 Now, bearing in mind these two basic criteria, you have proposed a

17 sentence of 35 years for Mr. Prcac and life sentence for some of others.

18 How do you see the utilisation of these two criteria to arrive at that

19 conclusion because the practice of it is a problem; 35 years for

20 Mr. Prcac, it is more than a life sentence, perhaps. So how did you use

21 those two basic criteria to come up with your sentencing requests?

22 MS. SOMERS: We start from the position, Your Honours, that these

23 individuals are in superior authority in that camp; however, that is

24 not -- but that is just a jumping point. That is a tremendously

25 aggravating factor. They are police officers, police officers, one a --

Page 12710

1 he is a police officer, not Zigic -- I'm sorry, just if we're talking

2 about Prcac now, if we're going on the 35, professional police personnel,

3 crime technician, whether or not it's a straight officer may be subject to

4 debate, but part of the police services and, as such, held to high

5 standards of conduct.

6 Looking at the individual acts, one must look to the times at

7 which Prcac was present, what was happening in Omarska. Enormous

8 disappearances, beatings, very serious instances of uncontrolled,

9 uncontained assaults within the camp. And, again, if we look at it from

10 7(3) nothing was done. The protestations that, "I couldn't do anything.

11 I was willing to help Karagic for money but I couldn't help Travancic," it

12 indicates that if there was any type of predilection towards assistance,

13 it was where there was gain for the individual. Reprehensible.

14 Reprehensible.

15 The absolute abuse of authority has to be factored into this

16 sentencing. 35 years, if one looks across the board at some of the

17 sentencing of the Tribunal is, I think, it's a modest request. This is a

18 person under whose or on whose watch people disappeared, were sent off to

19 their deaths. People -- there was no regard whatsoever for the welfare of

20 anyone under his care.

21 The -- we also factor in and we must concede that we do not have

22 evidence of direct beating by the individual. That's not there. And that

23 factored in too. Had we had that, assure this Chamber we would have

24 sought a lot more than this also goes for Kvocka. Kvocka, perhaps because

25 of age and perhaps because of some other circumstances and background

Page 12711

1 really lent an energetic participation in -- and an energetic or a wilful

2 blindness towards things that he would have been charged with acted upon.

3 Again, there was no direct evidence of beatings by him or other

4 types of abuse and had we had that, we would have sought sentences

5 commensurate with some of the other sentences in this Tribunal which did

6 not actually apply to people in the superior authority positions.

7 Is the Chamber also asking me about the life sentences or are we

8 just sticking with the 35 years?

9 JUDGE RODRIGUES: [Interpretation] Thank you, Ms. Susan Somers.

10 That answers my question.

11 Let me now turn to the Defence for Mr. Zigic; Mr. Stojanovic, in

12 fact.

13 If I understood correctly, there was a point in your closing

14 argument in which you mentioned the armed conflict and you even said that

15 not only was an armed conflict needed, but a war. I don't know if I

16 understood you properly but if I did, my question would be as follows: As

17 you know, the Chamber had a judicial notice, there was a judicial notice

18 where we took the decision to say that there was, indeed, an armed

19 conflict, that an armed conflict did exist, that it was organised and

20 systematic. So when you developed your ideas in your closing argument,

21 this question of conflict, armed conflict and possibly a war, did you take

22 into consideration the Chamber's decision and the judicial notice or not?

23 MR. STOJANOVIC: [Interpretation] Thank you for your question, Your

24 Honour. This will give me a chance to clarify my thesis, and I dealt with

25 the thesis in my first brief. I think it was a motion for judgement of

Page 12712

1 acquittal, actually, where I did this.

2 Of course I did. I respect and recognise the decision, the

3 ruling, so this is an ascertained fact that an armed conflict did, in

4 fact, exist. However, my standpoint was that for the application of

5 Article 3, we need something more than that. That is to say that we need

6 to prove that it was a specific form of armed conflict which is of a more

7 marked character, and that is war. And this interpretation of mine stems

8 from the interpretation of Article 3 of the Statute wherein in the title

9 itself it says "War, Customs of War," as opposed to all the other articles

10 where all these elements are precisely defined from Article 3, war is

11 interpreted as an armed conflict.

12 Something was said about this in the judgement made in the Tadic

13 case, the appeal there, and that it was a terminological difference and

14 that it was a more modern concept the fact that an armed conflict -- that

15 it is sufficient to say armed conflict and that you needn't say war, use

16 the word "war." But in that first motion of ours, we said that Article 3

17 in fact gives us -- gains it's inspiration from the 1907 Hague Convention

18 where wartime activities are treated, and our other arguments went along

19 the lines of the linguistic and grammatical interpretation of that Article

20 and the interpretation of the contents as they are expressed in Article 3

21 itself. I apologise for speaking too quickly. I will try and slow down.

22 So on the basis of the interpretation of the contents of Article 3

23 as it stands in the text of the Statute itself which indicates that we are

24 dealing with a conflict of greater proportions and there is a difference

25 between war and armed conflict. War necessarily implies that an armed

Page 12713

1 conflict is taking place. However, Judge Wald knows full well, we dealt

2 with questions of this kind with respect to the intervention in Yugoslavia

3 on the part of the United States, that there is a vital difference between

4 an armed conflict and war, and a state of war. The state of war was a

5 condition which would not have given the authority for the continuation of

6 those actions and operations.

7 Therefore, we did, of course, have in mind your decision and

8 ruling and we respect it, but we feel that there should be a closer

9 definition of a conflict, whether in fact it was a war or not. We did

10 not, in fact, state that it was not perhaps a war. What we said was that

11 in the course of the proceedings during the trial, we did not present

12 evidence in that direction, that is to say, evidence which went to prove

13 that it was -- that this state of armed conflict represented an all out

14 war proper as well. Thank you.

15 JUDGE RODRIGUES: [Interpretation] Thank you very much. Yes,

16 Ms. Susan Somers.

17 MS. SOMERS: Thank you very much, Your Honour.

18 If the Chamber would allow me at some point if the Chamber -- if

19 you have finished with my colleague, there were two points I wanted to

20 make sure on the sentencing that I did emphasise, and perhaps they may

21 have gotten lost in a comment about direct participation. So whenever

22 it's convenient, I think it's important that I just re-emphasise those two

23 points for the Chamber.

24 JUDGE RODRIGUES: [Interpretation] Yes. Just a moment, please,

25 we'll deal with that later on.

Page 12714

1 Let me now turn to Mr. Jovan Simic, and I have two questions for

2 him.

3 You mentioned, Mr. Jovan Simic, Keraterm and Omarska in order to

4 show that there were similar forms of organisations in the two places.

5 Later on, you also mentioned Celebici in order to say that in the texts,

6 the word "camp," "concentration camp," if I understood you correctly, that

7 the word concentration camp was never used.

8 Now, can you tell us from your point of view, from the point of

9 view of the Defence and the transcript, what are the similarities and

10 dissimilarities between the organisation of the three camps, or was it the

11 same thing? Because I think that you mentioned these differences in your

12 written submissions between Keraterm and Omarska, for example and, as you

13 know, it is assumed, you can answer or not, but it is assumed, that at

14 Keraterm, there was a warden, a civilian manager of the prison, the

15 warden.

16 So how do we look at these three localities at the same time,

17 these three camps?

18 MR. J. SIMIC: [Interpretation] Your Honours, essentially there

19 should be no difference. All three camps or investigate centres, whatever

20 you like to call them, basically had the same purpose. The difference

21 that I wished to make was in the organisational sense, that distinction.

22 So two camps which were set up on the Prijedor municipality area which had

23 a similar number of detainees were organised in quite different ways. So

24 that was the parallel I drew.

25 Celebici, when I mentioned Celebici, I mentioned them in the

Page 12715

1 context of the fact that they were termed camps, as we call them here,

2 that is to say, the Prosecution uses the term "camp" rather than

3 "investigation centre," that they weren't treated as concentration camps,

4 and that that is something which this Defence team does not find

5 acceptable.

6 So if there's no concentration camp in the Celebici case and it is

7 being raised here so we should level it out, and we should unify this

8 because it is impossible for a concentration to have existed in one case

9 and not in another. By virtue of it's essence, a concentration camp would

10 necessarily be intended as in World War II for the annihilation of a

11 group, the Nuremberg process showed. There is no proof to show that they

12 were all temporary provisional ones with a short time span. Perhaps

13 somebody had the idea of persecuting a part of the population, but there

14 is no evidence or proof to show that this served for the liquidation of a

15 certain portion of the population much.

16 That is why I consider, just as Celebici -- were not subjected or

17 treated as being, according to the theory of concentration camps and as

18 concentration camps, there is no reason to treat the two others, the

19 Omarska Investigation Centre or camp and Keraterm.

20 So Your Honours, I just wanted to make an analysis, a comparative

21 analysis and say why we don't consider Omarska to have a deputy because

22 Keraterm didn't either, but that was an organisational matter alone.

23 Thank you.

24 JUDGE RODRIGUES: [Interpretation] I have one more question for

25 you, Mr. Jovan Simic. I apologise for making you stand again.

Page 12716

1 I think that in you are your writings, you made a compare it have

2 analysis between Prosecution witnesses on the one hand with respect to

3 finding of profile, getting a profile of Mr. Kvocka, and you used the

4 Defence witnesses for getting the same result for your client Mr. Prcac.

5 So this is in your written submissions.

6 Today you told us that the result was that Kvocka, how shall I put

7 this, executed tasks which were proper to a uniformed officer in line with

8 those of a uniformed officer, and that Mr. Prcac, how can I say,

9 accomplished tasks that were of an administrative nature, that they were

10 characteristic of an administrative or duty officer.

11 Now, my question is the following: If you had the opportunity of

12 comparing the Prosecution witnesses for Kvocka and the Prosecution

13 witnesses for Prcac, would the conclusions, the results that you obtained

14 be the same or not?

15 MR. J. SIMIC: [Interpretation] Your Honour, I don't think they

16 would be, no. In my closing argument, I quoted the example of what could

17 have been. We claim that the accused Dragoljub Prcac was in the

18 investigation centre working just like any guard who spent most of his

19 time in Room B5 working with the radio communications device, and that

20 sometimes he would do something the investigators asked him to do like

21 read out a list or go and fetch a detainee or something like that.

22 What this Defence team did in its final brief was to try to make a

23 comparative analysis between the so-called alleged two deputy commanders.

24 Now, according to us, these two deputy commanders, if they exist at all,

25 two people doing the same duty, they must have something in common, common

Page 12717

1 denominators, which would show that they were engaged in the same function

2 and that is something that is absent, that is lacking, just not there.

3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Jovan Simic, I

4 understand your objective full well. I'm asking the question of

5 methodology, the methodology you used. You used the Prosecution witnesses

6 to obtain results with respect to Mr. Kvocka. You used Defence witnesses

7 to obtain a result with respect to Mr. Prcac.

8 Is that what you did or not?

9 MR. J. SIMIC: [Interpretation] No, Your Honour. In both cases, I

10 used, first and foremost -- I just mentioned some of the Defence witnesses

11 because at that point, it seemed to me to be much more important to hear

12 what the victims and witnesses of the Prosecution said. So the

13 comparative analysis was done on the basis of Prosecution witnesses for

14 Kvocka, and how the Prosecution witnesses remember Kvocka and remember

15 Prcac. So it is on the basis of that material, that is to say, the

16 testimony of the witnesses themselves, the Prosecution witnesses

17 themselves, that I engaged in this analysis and there is no similarity

18 there that we're talking about.

19 The Defence witnesses just confirmed what we maintained all along

20 before this Court and in our pre-trial brief and during the trial

21 proceedings that Mr. Prcac was what we claimed him to be, that is to say,

22 that he had no function and that he was not deputy commander of the camp.

23 Actually, we said that he was not in a position to issue orders to

24 punish, that he had no superior authority, and Defence witnesses bore that

25 out. But what was important for us at the time was to make the

Page 12718

1 comparative analysis on the basis of what the Prosecution witnesses said

2 in their testimonies.

3 JUDGE RODRIGUES: [Interpretation] Okay. Thank you very much. I

4 have no further questions for you, Mr. Jovan Simic.

5 I think that Ms. Susan Somers had asked for the floor a moment ago

6 to make one final comment with respect to life sentencing, life

7 imprisonment; is that it?

8 MS. SOMERS: Your Honour, it was pursuant to your question about

9 the 35 year sentences. If the Chamber wishes anything on life, I will,

10 but I don't believe it was asked.

11 On the two sets of factors, the Prosecution factored in very

12 carefully the 7(1) evidence about Kvocka saying to a guard in reference to

13 Witness AK, AJ, Emir Beganovic, "Bring them back afterwards." That's very

14 important to our arriving at our points. And also Kvocka's note about

15 Beganovic, "KOP 2," the predestined or predetermined place to deposit the

16 body.

17 And we also wanted the Chamber to know the Kvocka record of

18 interview is 3/203 on page 53, the investigator had asked Kvocka, "But in

19 your mind when you were there without Meakic, Mr. Meakic, say, working

20 from 6.00 p.m. or 7.00 p.m. at night or 6.00 a.m. or 7.00 a.m. the next

21 morning who, in your mind, was in charge of the interrogation centre as

22 far as the police and the security were concerned? Answer by Kvocka: "It

23 was considered that that was me and Zeljko told me, Zeljko ordered me to

24 look after things that I have mentioned here."

25 Thank you for giving me the opportunity to allow you to understand

Page 12719

1 that.

2 MR. K. SIMIC: [Interpretation] Your Honour.

3 JUDGE RODRIGUES: [Interpretation] Yes, Mr. Krstan Simic.

4 MR. K. SIMIC: [Interpretation] I would also like to be allowed to

5 make a comment with respect to what Ms. Somers has said, with your

6 indulgence.

7 Ms. Somers quoted Witness Mirko Jesic when he says, "When the

8 came, the first thing I see was Komandir Meakic." Your Honours, if there

9 is anything that is not in dispute, it is the assertion -- claims of one

10 and all that Mr. Meakic was the commander of the police station

11 department, and this is the way you address such persons. You address a

12 judge as "Your Honour," "Judge," you address a Colonel as "Colonel." So

13 there's no dilemmas there with the term of reference.

14 As regards the observation made, we have persistently tried, but

15 we have not arrived at an answer to this question whether Mr. Kvocka is

16 being accused and charged as a superior of any kind or is he being treated

17 as a deputy camp commander.

18 The indictment has placed very clear-cut standards on that point.

19 He was a superior, that is to say, all individuals were responsible to

20 him. All individuals in the camp were responsible to him. We quite

21 simply expected from our learned colleague at least today to give us

22 information as to what we are going charged with. Is Mr. Kvocka being

23 charged for being the deputy commander of the police station department

24 and the other one, or were they deputy camp commanders? So I would

25 appreciate clarification. Thank you.

Page 12720

1 JUDGE RODRIGUES: [Interpretation] The Chamber will reply to your

2 question. This is not the moment for the Prosecution to answer that. It

3 is a question of ruling by the Trial Chamber.

4 The Trial Chamber has, shall I use the word, struggled to arrive

5 at this point at the end, and we have truly got there, but a lot of work

6 has been done by you, the parties, the Prosecution and the various Defence

7 counsel. I'm going to mention you because you're present here today, but

8 there are many people who are not present here today and who did a lot of

9 work. I'm thinking about Mr. Niemann, I'm thinking about Ms. Hollis, I'm

10 thinking about Mr. Michael Keegan, and I'm also think of Ann Sutherland,

11 of Piacente, of Stringer, many, many, people who have done a lot of work

12 here. I'm also thinking, for the Defence side, of Mr. Lukic and

13 Mr. Tosic.

14 You will recall that towards the end of January, this Chamber

15 accepted the challenge of taking up this affair. If you will remember, we

16 received it in preparation for the opening; that we held four Status

17 Conferences from the beginning of the 31st of January, and the 28th of

18 February, the Chamber went ahead and opened the trial. And I think that

19 you will remember just how much discussion we had in this courtroom in

20 order to arrive at the conclusion that we must organise ourselves very

21 well to give us enough time for witnesses in the morning and debates and

22 discussions in the afternoons.

23 The fact of having here in the courtroom many legal people,

24 lawyers, counsel, was multiple reasons for satisfaction in our work; on

25 the one part, because we enlarged the scope of our debates and

Page 12721

1 discussions. When one person said yes, the other person would say no, so

2 that placed us in a position where we had to discuss and debate a point.

3 And I think that in a situation of this kind, we were able to come up with

4 better solutions and decisions, because to debate well and to negotiate

5 well gives you good results.

6 I should also like to take advantage of this opportunity to say

7 that we simultaneously were able to work together and to have our

8 professional relationships evolve here and to have many people come here

9 and be heard, and that is why it is on behalf of my colleagues and in my

10 own name, I should like to thank all the people who have contributed to

11 reaching this decisive moment, which is drawing to an end but is not the

12 actual end.

13 It was, at all events, a case, a proceedings, which had given us a

14 great deal of work but a great deal of satisfaction as well, if I may say

15 so, to have arrived at this particular point. Therefore, it is with great

16 pleasure that I can tell you that within the frameworks of Rule 87,

17 "Deliberations," after the closing arguments by the two parties, I can

18 declare the hearing closed. And the Judges are going to retire to

19 deliberate in private.

20 What you are all asking yourselves is when do we meet again. But

21 let me state one point: This Trial Chamber has taken up the challenge of

22 having two cases, two trials, at the same time, two parallel trials, so

23 this means an enormous amount of work. Statistically speaking, he have

24 exceeded what this courtroom could have provided, because we had sessions

25 in the morning and sessions in the afternoon, and one session was one

Page 12722












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13 and the English transcripts.


















Page 12723

1 complete work form. I think that we shall be able to meet again towards

2 the middle or end of October. This is something that I am able -- the one

3 thing that I am able to promise you is that the Chamber will engage all

4 its resources in order to be ready towards this date. But we shall be

5 confirming the exact date later on, the date that we shall meet again for,

6 if I can put it that way, the final moment for all of us here, for the

7 parties, for us Judges, for the accused as well.

8 So all that remains for me to say today is that we adjourn the

9 meeting. It has been a pleasure working with you all, and we have all

10 learnt a great deal together. So on behalf of my colleagues and myself, I

11 adjourn the meeting.

12 --- Whereupon the hearing adjourned at 1.13 p.m.

13 sine die