1 Wednesday, 12 November 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 3.48 p.m.
5 JUDGE ROBINSON: This afternoon we'll hear the 98 bis submissions
6 from the parties, and we begin with the Defence for Milan Lukic,
7 Mr. Alarid.
8 MR. ALARID: Thank you, Your Honour.
9 I must admit, though, I'm kind of at a loss in terms of how to
10 approach 98 bis, and as I've been reading the rules and the decisions on
11 98 bis, it seems like an almost insurmountable -- seems like an almost
12 insurmountable rule because -- and I'm noting your decision, Your Honour,
13 in Dragomir Milosevic in where you discuss the evolution of the rule as
14 it was changed in 2004. And the quandary I have is, I think, in relation
15 to the reason that the Sredoje Lukic team has elected not argue a 98 bis
16 is because it seems like the standard has evolved to a point where so
17 long as the Prosecution presents some evidence on each count, some
18 evidence, then a 98 bis would not be appropriate.
19 Now, I'm in a quandary, Your Honour, because part of me wanted to
20 go through a dissertation, of which I would not be prepared for today,
21 outlining the inconsistencies or cross-referencings between certain
22 witnesses, some for alibi rebuttal but are also incorporated into the
23 different counts. But I realised that in looking at the rulings, that
24 would be inappropriate, because at this point in time according to 98
25 bis: "At the close of the Prosecution's case, the Trial Chamber shall,
1 by oral decision and after hearing the oral submissions of the parties,
2 enter a judgement of acquittal on any count if there is no evidence of
3 supporting a conviction."
4 Now, what does that mean, Your Honour? And I guess I challenge
5 the Court to draw a line in this case, because this case is different. I
6 think it's different than what this rule was written for because by this
7 being a first party commission case, the rule, as it's written,
8 technically shifts the burden of proof to the defendant because it limits
9 the Court's ability to look at this case. Matter of fact, Your Honour,
10 it reads very similar to a directed verdict motion in my jurisdiction
11 where the Court, if there is some evidence to move beyond, then of course
12 the Judge either says, Defence put on your case and/or it goes to the
13 jury, because of course they are the ones that are going to be the
14 ultimate determiners of the facts.
15 But in your case, you technically pass it on to yourselves. And
16 so what happens is, that, because technically under a hypothetical
17 situation, Your Honours, we could put on no defence. We could put on
18 none. And it's still the burden of the Prosecution to have proved every
19 element of each crime beyond a reasonable doubt. And on the hypothetical
20 that we would put on no defence, you would have missed an opportunity to
21 rule it 98 bis based on counts that you believe, and it really limits the
22 Court's ability to narrow down the case as it goes into the Defence case
23 because, one, of course the Prosecution has showed their hand, if you
24 will. And the way 98 bis is written today, it forces the Defence to show
25 their hand on all counts with limitations on the Court to decide a
1 portion, or, for instance, a bifurcation of a single count because, of
2 course, if you look at the indictment of the case, Count 1, persecutions,
3 may give a broad scope of conduct. And to be honest, Your Honour, for
4 purposes of 98 bis from a factual perspective, we think Count 1 would
5 survive anyway.
6 But when you look at, for instance, the Drina River
7 Pionirska Street or Bikavac, there are five counts per alleged crime, and
8 98 bis as written disallows the Court for looking into each count,
9 separating them and deciding whether or not the burden has been met at
10 each level.
11 So again, Your Honour, in a quandary situation, I think that
12 Rule 98 absolutely prejudices a defendant only in so much as it has the
13 practical effect of shifting the burden of proof to the defendant at an
14 improper time in the case, considering that today, as it stands alone,
15 the Prosecution should have enough on each count to convict my client
16 beyond a reasonable doubt. And if it does not, because you are the fact
17 finders that shift the case back on to themselves, you really have to
18 take the time to analyse this case in a first commission case. Because I
19 understand the differences between a joint criminal enterprise or a
20 leadership and command responsibility wherein the evidence presented
21 might not touch on a particular person's actions or direct actions,
22 direct crimes, i.e., I shot you, I killed you.
23 And so in looking at this, Your Honour, I think the rule is
24 inadequate today and our preparation should have been more of a let's
25 outline everything, let's show the credibility problems of the witnesses,
1 and see if the case stands on its own two feet today. Because,
2 Your Honour, looking at the rule, absent some minor technicalities, and
3 not so minor, actually I take that back, but absent some technicalities,
4 I think, factually speaking, the Prosecution has probably done close to
5 its job in at least getting it past the requirements of 98.
6 Now, we do need to look at the facts as is though and see if
7 98 bis is appropriate for some or all of the counts based on the failures
8 of the Prosecution to lay out the fact that this was a war.
9 And I'm not saying that there was never a war, but I'm saying was
10 there a war in June of 1992. Because we have some facts before us. We
11 have that fighting started and there was a skirmish between people on the
12 dam early April, okay. We have that the Uzamnica Corps came into town,
13 some bad things happened as a result of that but supposedly they left.
14 Now, I've been here trying to push some of the interrelations
15 because we are not running from the fact that Mr. Milan Lukic was a
16 reserve police officer at the time, embroiled in this situation; however,
17 the Prosecution has elected in their case in chief to avoid that
18 completely. They've avoided it.
19 As a matter of fact in their most recent submissions, they
20 appeared to be denying it completely. They want to separate Milan Lukic
21 from this otherwise broader power spectrum in the region. But I think
22 that has a practical and fatal flaw. Is by divesting Mr. Milan Lukic
23 from the conflict, they in fact divest him from the jurisdiction of the
24 War Crimes Tribunal itself. By turning Milan Lukic into a rogue, someone
25 that is acting without any tacit connection to the power structure
1 involved, not under the command of Dragomir Tomic, not under the command
2 of Risto Perisic, not under the command of Branimir Savovic, but simply a
3 rogue as alleged in the complaint or in the -- excuse me, in the
4 indictment, he was supposedly a paramilitary leader. A leader of a
5 specific group called the White Eagles, and yet, the Prosecution is in
6 some such and based -- really based on the evidence as presented, I mean,
7 they can't control what their witnesses say, but their witnesses have
8 said other things. Their witnesses have said that Colonel Jovanovic was
9 in control of the White Eagles. Other witnesses and victims have said
10 that the White Eagles were held up in the hotel. Other people have said
11 that these White Eagles came from Serbia
12 established this relationship between Milan Lukic and this bigger sect of
13 "White Eagles." And even that, they haven't created a nexus or a
14 relationship between the "White Eagles" and the grander scheme of things.
15 Because I would argue without that, the allegations as set forth in this
16 complaint are simply domestic crimes, and notwithstanding of the earlier
17 11 bis proceedings, those domestic crimes should be prosecuted in the
18 domestic jurisdiction.
19 I don't even think these are war crimes. They would be alleged
20 as robbery, assault, battery, all the way up to murder. Absolutely. But
21 by saying that this is part of the War Crimes Tribunal, no one has really
22 established when the war started. No one has really brought this in, and
23 if you want to take the limitations of the Court in terms of Mr. Masovic,
24 I think that intensifies the problem. It intensifies it from a legal
25 factual perspective, because unless we have that -- because I mean, Your
1 Honour, I guess I speak from my heart, I speak what I believe and even if
2 I'm wrong you'll know that I've really wrestled with this. And I wonder
3 why in a region so plagued by crime, so plagued by tragedy with so many
4 victims, the end all be all of the Bikavac conflict area -- or, excuse
5 me, the Visegrad conflict area is a former bartender, a former police
6 officer, and a now convicted waiter.
7 No apparent ties to the leadership, by the OTP's presentation.
8 To be honest, I would like to see more of a leadership -- because I think
9 the War Crimes Tribunal in and of itself was meant for that. To create a
10 court that transcends sovereignty, that transcends ordinary courts, that
11 transcends and has the power to bring and haul in people from anywhere in
12 the world, it's meant for the architects. It's meant for the architects,
13 Your Honour, because what the architects that did -- that was so
14 dastardly, that was so horrendous, is they changed the rules for an
15 entire population by playing and manipulating old hatreds, old
16 prejudices. They did this through in-advance propaganda, waging terrible
17 allegations against a people. These allegations were acted upon by
18 ordinary citizens who lacked the sophistication, the education, or the
19 introspection to stand alone in a time period when standing alone in and
20 of itself could be dangerous.
21 In denying that Mr. Lukic is a part of this power structure or
22 this chain of command that can in fact arrest people and disappear people
23 and persecute people, round up women, put them in a hotel for horrible
24 things, then they must have laid a case that what put Mr. Milan Lukic, a
25 former bartender, in that position. Because I don't think that any -- by
1 any stretch of the imagination from what has been presented in this
2 courtroom over the last few months can really put Milan Lukic as a
3 leader. At best, he was a leader of a small clique of friends. And as
4 far as the witnesses have been able to tie him, those small group of
5 friends were associated by the most simple of relationships, i.e., blood,
6 or kum relationship. So this is not a relationship born of loyalty to a
7 party or an ideology, or anything else. At most, a lot of the actions
8 described are opportunistic crimes that were created, and those
9 opportunisms were created by a grander scheme, a bigger political
10 structure that Milan Lukic had no ability to influence, correct or change
11 the course. And that's important because before we raise the
12 jurisdiction of this place, of this Court, of the United Nations, of the
13 planet that are willing to right a wrong, if you are going to go after a
14 waiter and a bartender, and a police officer, you had better show
15 evidence of the grand scheme. Because other than that, they are just
16 alleged criminals.
17 JUDGE ROBINSON: You say first that there's no evidence of a war,
18 of an armed conflict.
19 MR. ALARID: Yes.
20 JUDGE ROBINSON: And that is a prerequisite for the commission of
21 the crimes.
22 MR. ALARID: Yes. And I would -- and I would argue that -- I
23 mean, I have such a hard time, because I know people were dying, of
24 course, people were fighting. But when did it transcend this level of a
25 disorganised civil discourse that was really was precipitated from
1 outside. There were -- I mean, I think we've all been around here long
2 enough to know that the big forces involved were manipulating a large,
3 relatively ignorant population.
4 People that, Your Honour, were existing in an economic crisis.
5 You want to talk about the customs and standards of war? I think we
6 could create a prediction model for this kind of tragedy that's almost
7 mathematical because I think any time a nation state has been allowed by
8 the international community to descend into such terrible poverty, I
9 mean, we heard in this courtroom 50 billion Dinars bought your life.
10 It's my understanding that 7.000 Dinars was a penny. And so what does
11 that transcend to, to be a dollar? And so if you want to look at any
12 time tragedy has been allowed to work its way in, it has been in the
13 poorest and the most ignored regions of our planet. Nazi Germany elected
14 Hitler in the worst economic times and the world community allowed the
15 German people, following World War I, as punishment to descend in this
16 economic problem that then precipitated a tyrant rising in their midst,
17 democratically elected to a certain degree.
18 So what do we have, what is it the tangential relationship
19 between the Bosnian conflict and the Rwandan conflict, or the Sudanese
20 conflict, is that the international community allows a set of people to
21 get so desperate that any powder-keg event can cause an absolute
22 de-evolution of our civilisation for a time.
23 I would argue that another thing that the OTP has failed to prove
24 in this case as a prima facie prerequisite is that the acts or conducts
25 of my client, as alleged, could be -- and I guess the words are right out
1 of the indictment, that the persecutions of the Bosnian-Muslims and other
2 non-Serb civilians on political, racial or religious grounds. Well, we
3 may have a greater understanding -- we may have a greater understanding
4 of the motivations of that architect sect, but I don't think that we've
5 really entered the mind or the motivations of this bartender or waiter or
6 police officer.
7 There has been evidence before the Court that Milan Lukic had
8 many Muslim friends. There has been evidence before the Court that he
9 never caused trouble in high school with Muslims, never fought them,
10 never had this discourse. But what we have heard though, is, is that
11 Milan Lukic is from Rujiste. And Your Honour, Rujiste is at the end of
12 the road right next to Slap, which you have heard about. Slap is that
13 bend in the river where the bodies were collected by Mr. -- I think it
14 was a protected witness, but they were buried there but that was also
15 considered the "frontlines."
16 So what did Milan Lukic do and what is the evidence that's been
17 presented for the Court but that Milan Lukic was in Switzerland, he
18 didn't even live there, and he came back to the region only after
19 whatever conflict we can define it as started.
20 Again, Your Honour, with no evidence that this is anything more
21 than him returning to his home country in a time where I think we can
22 argue that anyone in the region would be in some kind of danger,
23 especially people living near the "frontline."
24 It's arguable that Milan Lukic like many young men in that area
25 at the outset were forcibly mobilised, drafted. You participate or you
1 are an outsider. There's been evidence that in fact, and it's in dispute
2 of course, it's in dispute by me but it was presented by the Prosecution,
3 that Milan Lukic killed Serbs. And so if you want to argue the fact that
4 it is a prerequisite that the persecution or the acts be based on a
5 religious or ethnic racial grounds, then I argue that they've presented
6 absolutely no evidence of that fact.
7 I think one of the problems with the case that --
8 JUDGE ROBINSON: How would you find that evidence? Isn't it by
9 way of inference from the evidence?
10 MR. ALARID: Well, I agree with you. I can see how you can see
11 that because the inference is so powerful in my mind because I watch the
12 news and read the -- you know, like everybody else, but the fact is, is I
13 think in a direct commission case, it really goes to the motives of the
14 actor. By inference, you could argue that but aren't you arguing
15 transferred inference. Transferred intent. This isn't a JCE so we got
16 to look into the mind of Milan Lukic whether we like it or not.
17 And if you add to this fact, Your Honour, that Mitar Vasiljevic,
18 we know broke his leg the day of the fateful fire in Pionirska, and I
19 take absolutely different positions with Pionirska as Bikavac, I think
20 the presentation of the Defence and where we've gone with that takes a
21 different position. But in Pionirska, regardless of that fact, I think
22 the Court has to entertain the fact that assuming Mitar Vasiljevic hurt
23 himself at 5.00 and was no longer able to participate in either Bikavac
24 or Pionirska, and the second amended complaint is notably devoid of
25 Mitar's name, but that does not eliminate the fact that several groups of
1 witnesses especially related to Bikavac but including Pionirska, are
2 adamant and absolutely unwavering in their assertion that
3 Mitar Vasiljevic participated in the late night situation at Pionirska,
4 as well as Bikavac, and things in between.
5 I think that is a real problem because one of the things that
6 despite leaving the name out in the second amended indictment or maybe
7 not asking questions on direct, or because the statements were in such a
8 way, but under 92 ter you've seen all these statements, you've seen all
9 these conflicting statements that have come in. And one of the things,
10 though, that was noticeable is that these witnesses were not ready to let
11 go of Mitar. They just weren't. And the interesting thing that how ID
12 now comes into this is because in the Mitar Vasiljevic case, most of
13 these witnesses, pre-trial, outside the courtroom, were given lineups and
14 they successfully ID'd Mitar.
15 Now, it's arguable that those same people put Mitar at the
16 Bikavac location on June 27th, and so that just means they were familiar
17 enough with him over the years to pick him out of a picture, but
18 otherwise lying or grossly mistaken about his presence. And if they can
19 be grossly mistaken about his presence and so much so that their
20 statement almost puts him arm and arm with Milan, I recognise them
21 together because. And you've -- ID is a huge issue because you've
22 watched these witnesses struggle with ID. In the courtroom they have
23 struggled, and that to me is beyond comprehension because the courtroom
24 ID is the most suggestive process on the planet given this setup, given
25 the uniforms we have to wear.
1 In fact, every witness that sits there, they don't have to have
2 seen a picture of them, they don't have to have watched the news, they
3 don't have to do anything. All they have to know are the two names, I
4 assume they did that, they all gave statements, and they have to know who
5 is older. If you know who is older, a hundred per cent of the time given
6 ordinary human common sense, those people would get an in-court ID
7 correct. And yet there's been problems. That problem does go into the
8 witness statements themselves when the alibi rebuttals -- I mean, it was
9 just unimaginable to me that I come and the alibi rebuttals for a crime
10 are a new crime. A serious crime. Not -- not, you know, I saw him
11 shoplifting at the store that day, that's why I know he was in town. No,
12 it was, He raped me this day. He killed my friend this day. That's
13 powerful. But you got to look at them for a second. One of those alibi
14 rape victims said he had tattoos on his arm. I would have expected him
15 to have tattoos on his arms. One of them says he had blond hair blue
16 eyes. I would have expected that. So there's a real problem with ID
17 issues that goes into Pionirska, and I think just like the Court
18 separated Mitar Vasiljevic at Pionirska, there is an issue of -- I think
19 the Court needs to be open the possibility, let's just call it a
20 hypothetical, that I can be there robbing you in the afternoon, but it
21 doesn't necessarily mean I'm part of the group that's killing you at
23 Think about that for a second. Because if you think of Pionirska
24 by itself, there was two mother and sons survivors and a couple of other
25 people, the young girl, the young girls, the sisters, as well as the old
1 gentleman. And those are all the survivors. Well, the interesting thing
2 about the mothers was, is that they saw -- one, they are married to who
3 was there at the beginning and married to Mitar Vasiljevic being there.
4 At the end of the night in the dark when the lights are out and there's
5 only flashlights and there's no power, who is there? They see these
6 guys. Well, we all know Mitar couldn't be there; he in the ambulance
7 getting a shot of alcohol with his ambulance driver on his way to the
8 hospital. Okay. So what happens then? The older women only count the
9 three or four. I think that's really powerful because, one, they are
10 mistaken because Mitar is not there; and two, what do their sons see?
11 What do the younger girls see? The sons see a column of soldiers down to
12 Pionirska. Several. The girls saw a roadblock at the end of the street,
13 a blockade.
14 We cannot eliminate the possibility that there were much more
15 people involved, by no means were they run or commanded by Milan Lukic,
16 and that in fact, it was that maybe grander power structure that had it
17 out for those people. The one exception that I do have with Pionirska as
18 a theory is that it was not a fire in the traditional sense. Why,
19 because the picture shown by the Prosecution didn't have all the
20 carbonisation that we would expect. You look at the floor boards in that
21 photograph and they are burnt but there has been a little fire in the
22 middle, almost like teenagers went and drank their beers there, hanging
23 out. There's clearly small arms fire and weapons impact in the walls.
24 The survivors of Pionirska heard screams and gun-fire for 30 minutes to
25 an hour. That is not evidence of people being burned up because the fire
1 would consume and kill them. That was evidence of survivors of what, a
2 grenade attack? Shrapnel wounded the mother that exited the room and
3 there was a grenade? Who is to say that these soldiers didn't simply
4 attack them with grenades and guns, and didn't try to burn anyone alive
5 in the house. It was the impression of the survivors that led to that
6 conclusion. Not necessarily that that was a factual situation.
7 But I think we need to be open to the fact that the OTP failed
8 entirely to prove the presence of my client at that fateful point in
9 time. Not vis-a-vis alibis or anything else, but simply because their
10 evidence didn't rise to that level and they never ever, ever, ever dealt
11 with Mitar being injured. They didn't deal with that. They didn't put
12 it to their witnesses, Hey, look, you might have been mistaken, are you
13 sure? No. They came in here sure of Mitar. And that is a problem
14 because, Your Honours, if 92 bis -- excuse me, Rule 98 is appropriate,
15 then you should never ever look at the facts of the case and say, You
16 know what, if the Defence doesn't put on a case today, has the
17 Prosecution met beyond a reasonable doubt today?
18 That's really the possibility. And I would argue that, by virtue
19 of their time constraints and everything else, at best what was put on
20 here was a summarized version of what I think should be a much more
21 in-depth and detailed presentation of the facts. And maybe those facts
22 are incorporated in all those statements we admitted, but on the same
23 token, I expected more details. And the number one person I expected
24 those more details from, Your Honour, was Ms. Turjacanin involving her
25 being in that fire.
1 If you look at her statements, if you look at her transcripts of
2 the news interviews and if you look at her testimony in court, her
3 memories of that fateful moment of when she was taken from her home, put
4 in a fire supposedly and escaped never escapes a paragraph with not all
5 the requisite details and feelings and emotions other than you would
6 expect but without all the details that I would expect in a court of law.
7 Problematic points of the case on two focal points. One of which
8 is, both Pionirska and Bikavac, there has been insufficient documentation
9 or evidence of the deaths. Bikavac, in the complaint, listed 16 people
10 associated with it. Pionirska, 70. If you believe Ms. Turjacanin, 70
11 people were in that house. Forensics has been done, no human remains
12 have been found. This is a home that supposedly collapsed in on itself,
13 presumably breaking, shattering or otherwise entombing 70 people's
14 charred and brutalised remains? And yet not a single tooth, bone shard,
15 finger bone, fingernail, skull fragment, anything, was presented from
16 that site. We saw pictures, it looks like it's a ruined foundation where
17 some people have thrown their trash, but no real evidence, and basically
18 we are all left to suppose where the remains of the house went. We can
19 imagine the worst of possibilities. But the problem is, is the
20 Prosecution did not present any evidence to that fact.
21 So we have a single potential eyewitness victim who --
22 Your Honour, I believe Ms. Turjacanin was brutalised. I don't
23 necessarily believe it was by the fire. I believe she was attacked in
24 that neighbourhood. The reason being, Your Honour, is right from their
25 own witnesses, the alibi witnesses, remember all these women that are in
1 the Bikavac neighbourhood that meet Zehra and she tells their story and
2 they believe her. Remember every single supporting witness in Bikavac
3 talked to Zehra. A couple of them claim to have seen skulls and bones
4 poking out of ruins, but yet they all spoke --
5 JUDGE ROBINSON: You say you believe she was attacked. Attacked
6 by whom?
7 MR. ALARID: I believe she was a victim of the rape scenario that
8 was going on in the area. The reason being, Your Honour, is rape victims
9 in and of itself all state how they were trapped there, could not leave,
10 and otherwise didn't have a method of egress, waiting for convoys or
11 whatever promises were meant. These women were being taken out and
12 returned at different intervals and they all describe this. I find it
13 hard to believe. And this is an environment where Ms. Turjacanin's own
14 brother was walled up in their home right under their very noses. This
15 is a situation where a number of women were taken and returned for their
16 mothers not to ask question but everyone knew something horrible happened
17 to them. I found it hard to believe that Zehra would have spent two
18 weeks as a young lady in this neighbourhood and not been a victim of this
19 back and forth transport of women that was evidenced by those other
20 ladies. So if you think about that for a second, it is the perfect
21 impetus for the trauma to be transferred on something else.
22 I ask yourself, Your Honour, is -- is -- even other witnesses for
23 the Prosecution had heard Ms. Turjacanin had burned herself on a stove.
24 I ask yourself to look at her -- think of her injuries, Your Honour, and
25 her description of the fire. She burned herself on a door that was too
1 hot to touch. Well, that doesn't explain the burns on the back of your
2 arms. That's explained by being immersed in some fire.
3 I submit that her first description of her injuries to doctors
4 and Serbs that she caught herself on fire is -- and her injuries are
5 consistent with the household accident.
6 JUDGE ROBINSON: But she gave an explanation for that.
7 MR. ALARID: She did. I would expect her to. And that's been --
8 what is tough, Your Honour, is, you know, part of me wants to acquiesce
9 to your wishes to put things straight on to a witness, but yet on the
10 same token, sometimes I want to marry a witness to their statement
11 because when you compare against someone else's or some other bit of
12 evidence, that's when it becomes silly. I can't do that with every
13 person nor do I want to shatter Ms. Turjacanin's belief system. I think
14 that's dangerous. I think it's dangerous that no one has taken care of
15 her in all this time and gotten her psychological help. She claims to
16 have only seen a psychologist for 30 minutes, and yet this is a woman
17 that now speaks another language because of the trauma she experienced in
18 that area.
19 And I can't even begin to address that. But I think the
20 reasonable possibility exists she was injured, that she was traumatized
21 that she was victimized, but the Bikavac in itself did not happen that
22 way. The simplest, most logical way I believe that, Your Honour, is her
23 own brother in his statement stating that she had never met Milan Lukic
24 with him.
25 That goes a long way. A lot of these witnesses in their IDs
1 claim to have seen him on the bus, gone to school with him, but if that
2 were all true, Milan
3 older. I mean, we all know, I think it's judicial notice of his birthday
4 at this point, and too many people came across this courtroom and said
5 they knew him; but when pressed for the details of why, when and how they
6 had that knowledge and familiarity, they failed. They failed here on the
7 stand to explain why and how they knew him. And when queried about age
8 differences and things like that that would be ordinary, they digress to
9 I know him, he is from Rujiste and a repetitive discourse of sticking to
10 stories that no longer made sense.
11 I would argue that the killings of seven men at the Varda factory
12 are from a perspective of witnesses that did not have the requisite
13 vantage point to make such identification. The reason I say that,
14 Your Honour, is that the Prosecution relies way too heavily on the
15 allegations of the taking of Behija's Passat. The reason think it's
16 overreaching is that in at least three statements that I have looked at,
17 just kind of trying to get a sense of the case again last night, three
18 people ID'd him in different cars. Three people. And not to say that
19 the Passat wasn't an issue in that town. Of course it was. I can't deny
20 that. But I think it's just as logical as that it could have been used
21 by a multitude of people in a time when every Muslim car was technically
22 being robbed from the populace and given to the authorities.
23 The Muslim property was turned into the carpool of the SDS and
24 the establishment. They rely way too heavily on people at a distance
25 where they would be absolutely disadvantaged to actually identify a
1 single person that they did not know extremely well or have some kind of
2 magnifying device to assist them.
3 If you even look at the Drina River
4 gentleman VG-79 across the river had binoculars. So much so he could
5 clearly identify victims by name because he knew them. And even in that
6 particular case, he saw only three gentlemen all in black with skulls on
7 their heads and a Peglica instead of a Passat, and a Yugo, which I think
8 at that point became undisputed.
9 And so although I would agree that I think the Drina River
10 Mitar's testimony at length in the previous trial, makes that the most
11 difficult one to say couldn't survive a directed verdict motion or a 98
12 motion or anything related to it, still there are problems on
13 identification. There are problems because the gentleman even the two
14 victims believe was Milan Lukic had his face painted. And one of them
15 clearly remembered a large mole near his mouth.
16 This case is such that certain aspects of it for the Prosecution
17 have fallen apart. And it is under the jurisprudence of this Court that
18 almost falling apart is required to get past Rule 98. And I would argue
19 to a certain degree certain aspects of the case have fallen apart.
20 The Koric murder. A single witness. Will it make it past? I
21 think the ID is still an issue for that single witness that testified.
22 There was a single statement in contradiction to that that was not
23 admitted yet. So I don't think it's as relevant to this point, but I
24 think it's a very weak case given the nature of the identity and the
25 limited witnesses that participated in that.
1 And like I said, Your Honour, I believe Pionirska in itself could
2 be divided. The beatings at the Uzamnica camp, from a Rule 98
3 perspective we would concede there's probably enough there, but it's
4 interesting how the first statements and even on direct -- excuse me, on
5 cross-examination a couple of the witnesses came back to only seeing
6 Milan Lukic there three or four times, but yet after their testifying, it
7 was almost every day. And you got to wonder, well, why did it -- I think
8 to convict Mr. Lukic, you wouldn't need every day. You really only need
9 three or four times if that was the threshold, but it was interesting
10 from a motivated witness standpoint how the first statements could evolve
11 from a few to, like I said, every day. If you are not going to look at
12 the credibility of the witnesses, at this point, you know, maybe that's
13 just a moot point, but I think it's something to consider for purposes of
14 looking at that which I believe is a pretty serious count.
15 Again we have not been able to present the evidence for some of
16 that time in the Uzamnica allegations. Mr. Lukic was in fact in jail and
17 I think that brings some problems. But again, that probably wouldn't
18 preclude a Rule 98 defeat.
19 So all in all, Your Honour, I'd ask to you bifurcate Pionirska.
20 I'd like you to rule in our favour for a 98 against the actual fire and
21 deaths allegations considering the adjudicated fact of Mitar Vasiljevic
22 and the ID issues that have been presented in the court in the witness
23 statements, because ID is a number one issue here. I'd ask you to
24 dismiss Bikavac in its entirety. And understanding that the Drina River
25 and Uzamnica and the overall persecutions could withstand at least the
1 strict construction of the rule.
2 JUDGE ROBINSON: Can you identify the counts specifically that
3 you are asking us to dismiss.
4 MR. ALARID: Yes, Your Honour. In relation to -- I'm conceding
5 enough under the ordinary Count 1, persecutions. In looking at Counts 2,
6 3, and 4, and 5, that relates to the Drina River
7 there's problems, I think from a Rule 98 perspective, these would survive
8 under an ordinary analysis. Looking at Counts 6 and 7, we would ask you
9 to dismiss the Varda based on problems. And I must say, that the
10 problems of identification for our co-accused help the overall picture
11 for a 98 perspective, because I think some of the identification issues
12 for Mr. Sredoje Lukic are even more difficult or even more egregious.
13 People that said they should have known him no longer saw him and I think
14 that goes to the overall credibility problem of the ID case in this
16 Looking at the Pionirska Street, I would ask to you bifurcate
17 simply based on the adjudicated fact and the, again, problems with
18 identification. We would ask you to bifurcate out and dismiss Count 8.
19 Count 9, Count 10 and Count 11, inhumane acts, I think can transcend
20 deaths or murders, and cruel treatment, that can be alleged as anything
21 earlier in the day beyond the actions of the evening. However -- and in
22 Bikavac which is Counts 13, 14, 15, 16, and 17, we would ask that they be
23 dismissed in their entirety. The killing of Ms. Koric, Counts 18 and 19,
24 we would ask that they be dismissed in their entirety. And Counts 20 and
25 21, we would concede would not meet the muster of 98 bis under its
1 current writing. And the entire indictment should be dismissed if the
2 Court were to find a failure of the Prosecution to meet its burden into
3 proving an armed conflict existed that was part of a widespread and
4 systematic application based on the prejudicial motives of race,
5 ethnicity and religion. I don't believe they've met their burden. And
6 other than that, Your Honour, Mr. Lukic has to fight a case in Serbia
7 where he has already been sentenced to 20 years and I think he should be
8 allowed to go fight that case. Thank you, Your Honours.
9 JUDGE ROBINSON: Thank you. Mr. Groome.
10 MR. GROOME: Thank you, Your Honour.
11 The applicable standard of proof for a 98 bis decision is that
12 the Court must grant the motion wherever a reasonable trier of fact could
13 not base a conviction on the evidence presented. Conversely, it must be
14 denied where there is sufficient evidence upon which a Trial Chamber
15 could enter a conviction. Of critical importance to this standard is
16 that the Trial Chamber could convict and not that it would convict. A
17 Chamber's decision at this stage does not bind it in its judgement.
18 The standard for a judgement of acquittal under 98 bis is well
19 settled. In the Dragomir Milosevic case, Your Honour Judge Robinson
20 expounded on the applicable standard as follows: "Significantly, the
21 test proceeds on the basis that the Prosecution case is accepted, and
22 therefore ... at this stage, the Trial Chamber is not concerned about
23 contradictions or inconsistencies in the Prosecution's case, or, more
24 generally, with issues of credibility. Those are matters to be addressed
25 by the Trial Chamber in determining the guilt of the accused at the end
1 of the case."
2 What remains unclear to me, however, Your Honours, is the effect
3 of Sredoje Lukic's waiver of his right to make submissions under Rule 98
4 bis. There is an interpretation of the rule that the Chamber is still
5 obliged to assess the evidence related to each accused. It is,
6 therefore, my intention to briefly summarize the relevant evidence
7 indicating Sredoje Lukic's culpability as well as Mr. Milan Lukic's
8 culpability unless directed to do otherwise by the Chamber.
9 Before I begin my review of the evidence, I would like to make a
10 few preliminary remarks. The first has to do with transcript references.
11 It is my intention to avoid unnecessarily citing transcript references to
12 the evidence I will discuss. I have prepared my remarks in such a way as
13 I will in most cases be able to refer the Chamber to a precise transcript
14 reference if called upon to do so. In the event the Chamber would like
15 to know a transcript reference for anything I say, please interrupt me
16 and I will be happy to oblige.
17 The second preliminary matter I would like to address is the use
18 of in-court identifications of the accused. The parties have filed
19 lengthy submissions on the law related to in-court identifications. In
20 preparing for this submission and having reviewed the evidence carefully,
21 I believe that the Prosecution can comfortably meet the standard of
22 98 bis without relying on in-court identifications. Given that our view
23 of the jurisprudence places upon the Chamber an obligation to engage in a
24 detailed analysis of a witness's prior knowledge and familiarity with an
25 accused before relying on an in-court identification, it may be more
1 expeditious to avoid reliance on them at this stage unless necessary.
2 I will therefore not refer to any in-court identifications as,
3 again, I believe the standard of 98 bis is clearly met without them.
4 Should the Chamber disagree with respect to any count and come to the
5 belief that the Prosecution can only meet its burden under 98 bis through
6 reliance on an in-court identification, I would of course ask the Chamber
7 to give me the opportunity to address that particular issue with respect
8 to specific counts and specific witnesses. It is the Prosecution's
9 position that in each of the charged crimes there is at least one
10 recognition witness as defined by the relevant jurisprudence and upon
11 whose in-court identification the Chamber could rely.
12 The first crime alleged in the indictment occurred at the
13 Drina River
14 respect to the Drina River
15 indictment exceeds the requirements of Rule 98 bis. The Prosecution's
16 four key witnesses for this incident --
17 JUDGE ROBINSON: Sorry, Mr. Cepic is on his feet.
18 MR. CEPIC: I apologise for interrupting, Your Honour, but could
19 Mr. Groome speak a little bit slower because it is quite difficult for
20 interpreters to translate in B/C/S.
21 JUDGE ROBINSON: Thank you. Mr. Groome you heard that.
22 MR. GROOME: The Prosecution's four key witnesses for this
23 incident paint a picture of these events that is both clear and
24 consistent. The Chamber will recall that these witnesses include the two
25 survivors of this execution, a man who watched the execution from the
1 opposite bank of the Drina River
3 The story that emerges from these witnesses' testimony is the
4 following: In the afternoon of the 7th of June, 1992, Milan Lukic and a
5 group of other soldiers captured VG-014 and VG-032, as well as five other
6 men in the houses where they were staying in the Bikavac neighbourhood of
7 Visegrad. Milan Lukic forced VG-014, VG-032, and the other prisoners
8 into two cars, one of which was the red Passat that had previously
9 belonged to Behija Zukic. The Chamber has heard ample evidence about her
10 death and Milan Lukic's subsequent use of her car and his arrest in
11 October 1992 in possession of that car.
13 Vilina Vlas Hotel.
14 After a short time at the hotel, they were driven to a junction
15 known as the Sase junction. Near that junction, the cars were parked and
16 the prisoners were forced out and marched down to the Drina. They were
17 forced to face the river, and the soldiers behind them began shooting at
18 them. Five of them were killed. VG-014 VG-032 were not hit and managed
19 to play dead and, thereby, survive.
20 The evidence related to the identification of Milan Lukic as the
21 perpetrator of this crime is as follows: VG-014, who was born in the
22 same year as Milan Lukic and attended school with him for two years,
23 testified that he recognised Milan Lukic instantly when he came into
24 VG-014's house and that he had no doubt about that recognition.
25 VG-032 had also seen Milan Lukic before the day of the
1 Drina River
2 other people identified Milan Lukic to VG-032. He next saw Milan Lukic
3 after Behija Zukic's murder, when Milan Lukic arrived at the
4 Visegrad Health Centre where VG-032 worked, driving Behija's red Passat.
5 VG-032 had a good opportunity to observe Milan Lukic on this occasion as
6 Milan Lukic got out of the red Passat. He recognised him as being the
7 same person who had been previously identified to him at the cafe.
8 VG-014 and VG-032 also give nearly identical descriptions of
9 Milan Lukic on the day of the Drina River
10 bandage on the inside of his elbow. The Chamber now has before it the
11 protocol book from the hospital in evidence as P165, and in that book an
12 entry for the 7th of June indicates that a person by the name of
13 Milan Lukic received an injection.
14 Your Honour, I'd ask if we could now move briefly into private
16 JUDGE ROBINSON: Yes.
17 THE REGISTRAR: Your Honours, we are in private session.
18 [Private session]
6 [Open session]
7 MR. GROOME: To summarize, the Prosecution's evidence with
8 respect to the Drina River
9 on these charges and exceeds the requirements of 98 bis.
10 Counts 6 and 7 of the indictment charge Milan Lukic with murder
11 as a crime against humanity and murder as a violation of the laws or
12 customs of war for the killing of seven workers from the Varda furniture
13 factory on the banks of the Drina River
14 The indictment charges that these killings happened on or around
15 the 10th of June, 1992.
16 The Prosecution led evidence from three witness with respect to
17 this event; VG-017, VG-042 and VG-024. Each of these witnesses saw the
18 incident from a different perspective, and each tells a different part of
19 the overall story.
20 VG-042 watched these events from the terrace of her house which
21 was about 50 metres from the sawmill gate and about 100 metres from the
22 place where Milan Lukic killed the men by the side of the river. She
23 testified that from that distance she was able to recognise the victims
24 and Milan
25 VG-017 was watching from a hiding place behind some barrels and
1 in a henhouse. VG-024 was at work inside the factory where she was able
2 to observe the events from a short distance, even having the opportunity
3 to speak with one of the victims.
4 On the morning of the day in question, VG-017 and VG-042 saw the
5 red Passat arrive near the guard house at the sawmill gate at the Varda
6 furniture factory. VG-017 and 042 saw three people getting out of the
7 car, including Milan Lukic.
8 After Milan
9 and brought a man by the name of Nedzad Bektas down to the guard house.
10 He then returned to the factory floor and brought out other workers.
11 VG-024 testified that about half past 11.00 on that day, a man
12 named Mirko Dukanovic told her to go behind the factory because it was
13 almost noon
14 and Hajra but returned after a few minutes because she wanted to see what
15 was going on. When she returned to the factory she saw Milan Lukic
16 coming out of the polish section of the factory bringing Hamed Osmanagic,
17 Nusret Aljusevic, Sabahudin Velagic and Lutvo Tabakovic with him. And on
18 his way out he picked up Ibrisim Memisevic. He didn't take these men out
19 the main gate; rather, he took them towards the sawmill.
20 When Milan
21 re-entered the field of view of the VG-017 and VG-042. VG-017 said that
22 he brought out six or seven workers.
23 42 testified that Milan Lukic then forced the prisoners to walk
24 down to the Drina River
25 the men were taken down to the river in two groups. The first group
1 composed of three persons, the second group of three or four.
2 VG-042 testified when the men reached the bank of the river,
3 Milan Lukic made them line up one next to the other and killed them one
4 by one. He then fired another burst of gun-fire into the bodies.
5 After killing the men at the river, Milan Lukic began walking
6 back. He saw VG-042 and the others watching on the terrace and shot a
7 burst of gun-fire at them. He then got back into the red Passat he had
8 arrived in and drove back towards town.
9 I'd ask that we go briefly into private session.
10 JUDGE ROBINSON: Private session.
11 THE REGISTRAR: Your Honours, we are in private session.
12 [Private session]
6 [Open session]
7 MR. GROOME: In addition to her great familiarity with
8 Milan Lukic, Witness VG-024 also had a chance to closely observe him
9 shortly before the Varda factory killings. VG-024 testified that
10 Milan Lukic was "almost a regular visitor" to the factory, an employer of
11 many from the factory -- an employer of many from the Muslim community.
12 Milan Lukic would just come and just walk through the factory sometimes,
13 she testified.
14 VG-024 also testified about one particular occasion a few weeks
15 before the charged incident when Milan Lukic took away several Muslim
16 co-workers of hers.
17 In addition, she testified that Milan Lukic identified himself as
19 as "Milan
20 about VG-024's be ability to identify Milan Lukic on the day of the Varda
21 factory killings.
22 VG-042 also had a solid basis for her recognition of Milan Lukic.
23 VG-042 testified that she knew Milan Lukic when he was a boy. Like
24 VG-024, she knows that he went to primary school first in Klasnik, and
25 then in Prelovo. She would regularly take a bus to a co-op; this was the
1 same bus that Milan Lukic would take to school. VG-042 testified that
2 she took this bus trip countless times and that she did see a great deal
3 of Milan Lukic during this time.
4 VG-042 also testified that Milan Lukic is from Rujiste and that
5 her family had fields near his family's fields. VG-042 knew
6 Milan Lukic's mother Kata and his father Mile. She said Milan Lukic's
7 parents were on good terms with her parents. They would greet each other
8 and occasionally drink coffee or brandy together. VG-042 described how
9 she also would exchange greetings with Milan Lukic's parents.
10 In addition to this familiarity with Milan Lukic, his family, and
11 his upbringing, VG-042 also had an opportunity to see Milan Lukic
12 immediately before the incident in which the seven Varda factory workers
13 were killed beside the Drina
14 day, Milan Lukic had come to the Varda sawmill with his Passat and parked
15 at the gate. Milan Lukic got out of the Passat and gathered up three
16 workers: Ramiz Karaman, Ahmed Kasapovic, and VG-042's husband. He put
17 them all into the Passat and drove them off towards the town. VG-042
18 testified that as they drove towards the town, they went right in front
19 of her house.
20 VG-042 thus had a strong fundamental familiarity with Milan Lukic
21 as well as an opportunity to observe him immediately before the killing
22 of the seven men by the Drina
23 identification of Milan Lukic that strongly corroborates the evidence of
25 While VG-017 was not as familiar with Milan Lukic as VG-024 or
1 VG-042, he had seen him multiple times before the killings at the Varda
2 factory and had a solid basis for recognizing him.
3 VG-017 testified that he had seen Milan Lukic two or three times
4 before the day that Milan Lukic came and killed the seven workers by the
6 In addition to this occasion, VG-017 testified generally that he
7 saw Milan Lukic when the war began, when Milan Lukic started going around
8 VG-017's neighbourhood when the killings started.
9 VG-017 also testified that Milan Lukic used to pass by his house
10 all the time in the car that he drove to the Varda factory on the day of
11 the killings.
12 He testified that on the day of the killings, he got a look at
13 Milan Lukic's face. When asked how he could recognise Milan Lukic here
14 in court, he answered: "How wouldn't I? I know him. I know the man."
15 Taking the evidence of these three witnesses together, it is
16 clear that a reasonable trier of fact could convict Milan Lukic of the
17 killings at the Varda factory charged in Count 6 and 7 of the indictment.
18 Koritnik is a town in the municipality of Visegrad
19 approximately 7 kilometres from the town itself. After several weeks of
20 increasing harassment and attacks against the village, on the 13th of
21 June, 1992, a local Serb told the Muslim residents of Koritnik they had
22 to leave the following day.
23 On Sunday, the 14th of June, 1992, the Koritnik group left.
24 Approximately 50 Bosnian-Muslims, including elderly men, women, children,
25 and a two-day-old baby comprised the group. All members of the Koritnik
1 group hailed from the same family, the Kurspahic family. None of them
2 was armed, none of them wore military uniform.
3 After a long trip on foot, the Koritnik group arrived in Visegrad
4 around noon
5 screamed at the group that they should go to the Red Cross. The
6 Red Cross office was closed, so the group moved to the new hotel or the
7 Visegrad hotel.
8 Mitar Vasiljevic arrived and directed the group to the Mahala
9 settlement in which Pionirska Street is located. Many of the Koritnik
10 group knew this neighbourhood because they had relatives who lived there.
11 The column of about 70 people made its way to Pionirska Street. The
12 majority of the Koritnik group began entering the house of Jusuf Memic.
13 Around seven others entered the house of Jusuf's son, Mujo Memic, but
14 later joined the larger group in Jusuf Memic's house.
15 Mitar Vasiljevic arrived. He addressed the group. He told them
16 that buses would be provided the next day to take them to Kladanj. He
17 presented one of the Koritnik group, Mujo Halilovic, with a piece of
18 paper, instructing the group to present it as a document of guarantee for
19 their safety. He told the group to stay together.
20 Ultimately around 70 people crammed into the Memic house. Around
21 4.00 or 5.00 p.m., four men arrived. Roughly half an hour after
22 Mitar Vasiljevic departed. Soldiers kicked open the door and
23 Milan Lukic, Sredoje Lukic, Milan Susnjar, and other armed men entered.
24 None of these men wore anything to cover their faces. One of the men
25 introduced himself as Milan Lukic.
1 VG-101 immediately recognised Milan Lukic, having gone to school
2 with him where she saw him every day. After she finished secondary
3 school, she continued to see him at social events. Her sister, VG-078,
4 also knew Milan Lukic from school. They attended the same school in
5 Prelovo for seven years.
6 VG-078 identified Milan Lukic when he entered from where she
7 stood about metre and a half away from him. The men had stormed in, and
8 in the rush of events, VG-101 recognised Milan Lukic first and then spoke
9 to her sister VG-078. It was at that time that VG-078 was able to put a
10 name to her former schoolmate's face.
11 VG-084 corroborated Milan Lukic's identification, testifying that
12 a quarter of the people in the room knew him and that "there were girls
13 in the house who used to go to school with him, so they used to be school
15 A cursory examination of the list of victims attached to the
16 indictment bears out that a number of victims were of similar age and
17 quite likely in school with him.
18 VG-018 stated that Sredoje Lukic also introduced himself. VG-038
19 knew Sredoje as a police officer in Visegrad, and used to see him on his
20 way to school.
21 For seven years while he went to primary school in Visegrad, he
22 saw him as frequently as every other day excluding weekends.
23 Additionally, Sredoje Lukic was a colleague of VG-038's relative,
24 Huso Kurspahic. VG-038 knew Sredoje Lukic from seeing him often in his
25 relative's company.
1 VG-013 testified that she saw Sredoje Lukic often at social
2 gatherings and that they had grown up in neighbouring villages. VG-013
3 also knew him in his official capacity as a police officer, and her
4 father-in-law knew him. She was present with her father-in-law when
5 Sredoje Lukic used to come by and testified that her father-in-law would
6 offer him coffee.
7 Also highly relevant to the issue of identification is the
8 instantaneous recognition by a large number of people in the group.
9 These people who perished that night knew both the accused well and their
10 statements are now before the Chamber. I will make more detailed
11 submissions regarding the weight that should be placed on these but would
12 simply note at this juncture that even in common law jurisdictions which
13 adhere to rigorous rules regarding hearsay would admit and place
14 significant evidential weight on these statements as exceptions to the
15 general hearsay rule.
16 These witnesses or victims had no time nor motive to fabricate.
17 They spontaneously uttered the name to the persons they saw at
18 Pionirska Street
19 Milan Lukic, and it is reasonable to conclude that from their statements
20 that they knew him from school.
21 Witnesses or victims such as Ramiza Kurspahic. Huso Kurspahic
22 was told by his father Hasib, who survived the fire, that
23 Ramiza Kurspahic told him that she went to school with Milan Lukic.
24 Sajma Kurspahic, approximately 20 years of age, she told VG-048 that she
25 knew Milan Lukic from school. Ismeta Kurspahic, approximately 26 years
1 of age the night of the fire, she told VG-013 that her husband sat at the
2 same bench in school as Milan Lukic. Other young women such as
3 Jasmina Vila, Dzheva Kurspahic, Izeta Kurspahic, Latifa Kurspahic, and
4 Medina Kurspahic were all close in age to Milan Lukic and it is
5 reasonable to infer that they attended school in Visegrad along with him.
6 Others like Jasmina Vila had been previously victimized by
8 Ifeta Kurspahic who was 17 at the time and taken from the house by
10 Milan Lukic as the person who had taken them from the house and returned
12 Finally, VG-013 described how Kada Sehic, approximately 39 years
13 of age at the time, identified Milan Lukic by name to her as the person
14 who took away her son and her husband.
15 The Koritnik group surrendered all of their possessions to
16 Milan Lukic, Sredoje Lukic and their men, and were subsequently subjected
17 to a humiliating strip search before the group left. The men promised
18 that they would be back.
19 Around 10.00 in the night, the noise of a loud car broke the
20 tense silence. A vehicle arrived and shone its headlights into the
21 house. Milan Lukic approached the Memic house and knocked on the door.
22 He was carrying a rifle. Sredoje Lukic accompanied Milan Lukic.
23 Milan Lukic, positioned at the doorway of Memic house, ordered the
24 Koritnik group to move to a different house, telling them that the Memic
25 house was not safe for them.
1 As VG-013 passed the doorway, she was less than 30 centimetres
2 away from Milan Lukic. Edhem Kurspahic, one of the others in the
3 Koritnik group, said that Sredoje Lukic was walking alongside the column
4 as it made its way to the Omeragic house.
5 One of the group directed the Koritnik group -- one of the armed
6 men directed the Koritnik group to the Omeragic house. He ordered the
7 group to walk another member who held a handheld torch light and lit the
8 group's way toward himself. Admittedly the sun had already set by this
9 time, but witnesses have recalled for the Chamber lighting from a number
10 of sources in addition to these handheld flashlights. From the car
11 itself, from the light outside the Memic house, from the light outside
12 the house across from the Memic house, and from lights from the housing
13 development behind the Omeragic house. There was sufficient light for
14 the witnesses to see the men who led them to the Omeragic house and
15 ultimately set them ablaze.
16 VG-078 identified Milan Lukic throughout the move between the
17 Memic house and the Omeragic house. She managed to escape and saw
18 Milan Lukic walk between the houses from a distance of about 30 steps.
19 VG-038 identified Sredoje Lukic and Milan Lukic, and the other men as
20 transferring the Koritnik group to the Omeragic house. Also, VG-101
21 identifies Milan Lukic as standing in front of the Omeragic house in a
22 lit area.
23 Inside the Omeragic house, the Koritnik group occupied the lower
24 floor. About 70 women, children and elderly men were crammed into the
25 two-windowed apartment. VG-013 describe the carpets as being stained
1 with a sort of liquid that stuck to their feet and it exuded a smell.
2 The only door to the room in which the Koritnik group were put was
4 After a short time, Milan Lukic threw some sort of device,
5 something like a bomb at the door. As the witness described, flames
6 appeared as large as the door itself and reached up to the ceiling. When
7 the door was opened, the fire was immediate and blazing.
8 VG-101 and VG-078, who had managed to escape during the transfer
9 towards the Omeragic house, could now hear shooting from the house next
10 to the creek.
11 A few of those barricaded into the house were able to escape.
12 VG-018 and her son VG-084 were able to get out through one of the
13 windows. Similarly, VG-013 and her son VG-038 were also able to escape
14 out the window. Hasib Kurspahic, who had been the last person to enter
15 the room in which the Koritnik group was held, ran out of the door when
16 it opened. He jumped into the creek and laid down in cover for the
17 shooting. He would tell his son shortly thereafter that Milan Lukic and
18 Sredoje Lukic had been directly responsible.
19 The evidence of the witnesses who watched the fire and heard
20 sounds of the victims dying, the fact that they have never seen their
21 family members again contradict Mr. Alarid's assertion that there was
22 never a fire there. 71 human beings died in the house burning at
23 Pionirska Street
24 following individuals are named. Prosecution Exhibit P39 contains a list
25 of these victims as affirmed by the witness Huso Kurspahic. Your Honour,
1 before I move into the Bikavac portion of the submission, would it be
2 convenient to take the break there?
3 JUDGE ROBINSON: Yes.
4 I just want to raise two matters for your consideration. First,
5 in my view, you are not required to make submissions in relation to
6 Mr. Cepic's client, Sredoje Lukic. No submissions were made on his
7 behalf in respect of 98 bis. I know that the rule is perhaps silent on
8 it, but it does say after hearing the oral submissions of the parties,
9 and if a party has made no submissions, then I can't see the need to
10 address it. At rock bottom, the procedure we have here is still
11 adversarial and a party system.
12 I don't rule out the possibility that the Chamber could proprio
13 motu, in an appropriate case itself raise 98 bis, if a party doesn't.
14 For example, if it is evident on the evidence that a legal ingredient is
15 missing from a crime, and a party doesn't raise it, I think the Chamber
16 would have an obligation to do so. But generally, I would say that where
17 a party does not intend, and has made it clear, to apply 98 bis, there is
18 no need to -- for the Prosecutor to answer.
19 The second point I wanted to make is that Mr. Alarid made what I
20 think is an arguable case in relation to the presence of an armed
21 conflict. That is, of course, one of the chapeau requirements of the
22 crimes that are charged and I'd like to you consider it. What I
23 understand him to be saying is that the violence in the area did not
24 reach a level where it could be characterized as an armed conflict. It
25 was sporadic. And he even went further to say that it was just criminal
1 activity. It wasn't a matter for the consideration of this Tribunal. I
2 believe that's a worthy submission that requires your attention.
3 We'll take the break now for half an hour.
4 --- Recess taken at 5.17 p.m.
5 --- On resuming at 5.47 p.m.
6 JUDGE ROBINSON: Before you continue, Mr. Groome, I just take
7 this opportunity to inform the parties about the status of the
8 outstanding motions.
9 Today the Chamber will issue decisions on two motions from
10 Milan Lukic, pursuant to Rule 94(A), filed on the 26th of September. It
11 will also issue a decision today on Milan Lukic's motion of 30th October
12 2008, requesting that the Chamber bar the entry into evidence of
13 Masovic's statement and his related testimony. And lastly, it will issue
14 a decision on Sredoje Lukic's motion of the 12th of September for the
15 admission of adjudicated facts.
16 That leaves three Prosecution motions outstanding. Two of those
17 relate to the admission of exhibits from the bar table. Exhibit 167 and
18 Exhibits 190.1 through 190.6. The Chamber will issue a written decision
19 on the Prosecution motion to admit Exhibit 167 tomorrow.
20 With regard to the motion for the admission of Exhibits 190.1 to
21 190.6, which was only filed this Monday, the Chamber requests the Defence
22 to file a response, if any, by next Tuesday, 18th November.
23 Now, please bear that in mind, Defence counsel.
24 Yesterday evening the Prosecution filed a motion requesting the
25 Chamber to reconsider its decision of the 5th of November excluding the
1 testimony of VG-094. The Chamber will decide on the motion once it has
2 received Defence responses, if any.
3 Lastly, the Chamber is seized with a motion from Serbia filed on
4 the 10th of November requesting certain protective measures, and this
5 matter will be dealt with next week.
6 Yes, Mr. Groome. Oh, Mr. Cepic first.
7 MR. CEPIC: I apologise for interrupting. I thought it would be
8 useful moment just related to decision of this honourable Trial Chamber
9 on the decision on Sredoje Lukic amended motion for judicial notice on
10 adjudicated facts. Related to that decision, Your Honour, I kindly ask
11 admission of Exhibit number 1D38 which is marked for identification, and
12 that exhibit contains medical records of Mitar Vasiljevic in Uzice
14 JUDGE ROBINSON: You are saying that would be a consequence of
15 that decision?
16 MR. CEPIC: Yes, Your Honour.
17 JUDGE ROBINSON: We'll give that decision tomorrow.
18 MR. CEPIC: Thank you very much. I apologise for interrupting.
19 JUDGE ROBINSON: Yes, Mr. Groome.
20 MR. GROOME: Your Honour, in light of your comments prior to the
21 break, I have omitted several pages of summary of evidence directly
22 related to Sredoje Lukic. Of course I'm unable to take out references
23 that witnesses made to both men. It also occurs to me, Your Honour, that
24 when Mr. Alarid, when speaking about the Uzamnica -- or counts related to
25 Uzamnica, said at transcript page 20, line 8: "From a Rule 98 bis
1 perspective, we would concede there's probably enough there." It's a bit
2 of an equivocal concession that it's there, but if Mr. Alarid is willing
3 to clarify that and the Chamber does not wish to me to summarize the
4 evidence in Uzamnica, that would also be a sizeable reduction in my
5 submission to the Chamber.
6 JUDGE ROBINSON: Do you want to -- can you clarify that,
7 Mr. Alarid?
8 MR. ALARID: Yes, Your Honour. I believe that, you know, absent
9 other considerations is raised, i.e., the armed conflict issue and
10 whatnot. I think the if the Court gets past that on its simplest based
11 on 98 bis, we would concede Uzamnica barracks. There is sufficient base
12 foundation under the rule.
13 JUDGE ROBINSON: Yes, thank you.
14 MR. GROOME: So, Your Honour, I'll -- when I get to that section
15 if the Chamber wishes me to move past it, I'll certainly do that and get
16 to some of the issues regarding to armed conflict.
17 JUDGE ROBINSON: You can move past that, yes.
18 MR. GROOME: Your Honours, Counts 13 through 17 of the indictment
19 charge Milan Lukic and Sredoje Lukic with extermination, murder and
20 inhumane acts as crimes against humanity, and murder and cruel treatment
21 as violations of the laws and customs of war with regard to the burning
22 of a house in Bikavac settlement of Visegrad on or about the 27th of
23 June, 1992, in which approximately 70 civilians were killed and one
24 civilian who survived was badly burned.
25 The Prosecution led evidence from four witnesses regarding this
1 incident: VG-035, VG-115, 119, and the sole survivor, Zehra Turjacanin.
2 Each of these witnesses testified about these events from a slightly
3 different perspective. VG-035 saw Milan and Sredoje Lukic immediately
4 before they went off to commit the crime. VG-119 saw them both
5 immediately before and immediately after, and saw Zehra Turjacanin
6 afterwards, in her grievously injured state. VG-115 watched the crimes
7 being committed from her place of hiding in a nearby orchard. And
8 finally, Zehra Turjacanin was inside Meho Aljic's house and survived the
9 fire itself. Despite the fact that each of these women experienced these
10 events from a different perspective, their collective testimony tells a
11 remarkably consistent and coherent story, one which, in the Prosecution's
12 submission, would clearly allow a reasonable trier of fact to convict
14 The first witness to see Milan Lukic and Sredoje Lukic in the
15 Bikavac neighbourhood on that day was VG-035. Milan Lukic had already
16 been to her house twice that day, and Sredoje Lukic had already been
17 there once. VG-035 testified that both Milan and Sredoje Lukic returned
18 to her house between 4.00 and 5.00 in the afternoon of the 27th of June.
19 They brought one other soldier with them, one whom VG-035 did not know.
21 then Sredoje Lukic left. Milan Lukic stayed for awhile longer and then
22 left as well.
23 When Milan
24 recognised it as Behija Zukic's car. There was loud music coming from
25 the car, which VG-035 could hear inside her home. The car drove a short
1 distance and parked. VG-035 was still able to hear the music coming from
2 the car. Some time after Milan Lukic left, VG-035 heard loud shooting, a
3 lot of shrieking and screaming.
4 VG-119 was the second witness to see Milan and Sredoje Lukic in
5 the Bikavac settlement on that evening. At around 8.00 p.m., someone
6 began knocking on the door of the house that VG-119 was staying in. When
7 the door was opened, a group of Serbs entered the house. VG-119
8 recognised Milan Lukic among them.
9 When the men arrived, VG-119 could hear music playing from the
10 cars outside. The men who came into the house asked if there were any
11 women from the Zupa area of Visegrad in the house. When the residents
12 told them that there were not, the soldiers left, saying that they would
13 return. Altogether, they had remained in that house for 10 to 15
14 minutes. When the soldiers left, the women in the house where VG-119
15 were staying, could still hear the loud music coming from the cars.
16 Zehra Turjacanin, the survivor of the fire, was the third witness
17 to see Milan
18 testified that she also remembers that the 27th of June, 1992
19 Orthodox holiday of Vidovdan. On that day, Ms. Turjacanin was at home
20 with a group of family members and neighbours. At some point during the
21 day she went across the street to visit her neighbour.
22 She remembers it was evening when she left that neighbour's
23 house. When she arrived home, she went out on her balcony to smoke a
24 cigarette. And from that balcony, she heard very loud Serbian
25 nationalistic music coming from the loud speakers of some car below.
1 Shortly after she heard the music, someone began knocking on her door.
2 When the people in Zehra Turjacanin's house opened the door in response
3 to the knocking, a group of soldiers and other men ordered them out of
4 the house. Ms. Turjacanin, her family, and neighbours who were gathered
5 in the house left it with the exception of her brother Dzevad and her
6 cousin who were hiding in the house.
7 When she went outside, Ms. Turjacanin was told they would leave
8 on a convoy to Bajina Basta, but she could see no buses or other vehicles
9 capable of transporting them to safety. Ms. Turjacanin specifically
10 remembers that Milan Lukic was one of the soldiers in the group. Milan
11 Lukic was standing on the path separating Ms. Turjacanin's old house from
12 her new house when she saw him.
13 VG-119 testified that both she and Zehra Turjacanin, after the
14 fire, eventually ended up in Medjedja. There, VG-119 would go visit
15 Zehra every day. One day, journalists interviewed Ms. Turjacanin and
16 asked her who was responsible for her injuries. VG-119 heard Zehra
17 mention the names of both Milan Lukic and Sredoje Lukic.
18 After having left their houses, Ms. Turjacanin and the other
19 residents of the surrounding houses followed this group of armed men for
20 approximately 100 metres to another house. This house belonged to
21 Meho Aljic. Ms. Turjacanin testified that at the moment she entered the
22 house, she saw a large group of people sitting against the walls of the
23 room she was in, which was a combined living-room and kitchen.
24 Ms. Turjacanin stayed close to the glass door through which she entered.
25 Her sister Aida was right next to her.
1 The other people in the house with Ms. Turjacanin were mainly
2 young mothers with small children. There were also a few elderly women
3 and men. The youngest child in the house was about a year old.
4 Ms. Turjacanin testified that an atmosphere of fear gripped that
5 room that she and the others were imprisoned in. After they entered, the
6 armed men who had put them in the house began throwing rocks at the house
7 to break the windows. Then they threw in several grenades. After the
8 grenades exploded, a fire broke out in the room that spread very quickly.
9 Ms. Turjacanin's clothes caught fire.
10 Ms. Turjacanin decided to try to escape through the glass door
11 through which she had entered. When she got to the door, though, she
12 found that the way was blocked by a metal garage door that had been
13 placed up against the glass door.
14 The garage door had some small openings in it. Ms. Turjacanin
15 was able to climb through one of these openings and escape, though her
16 hands were badly burned within she touched the hot door.
17 When she escaped from the house, Ms. Turjacanin saw the men who
18 had set the fire lying in the grass about 100 metres away. The men saw
19 her as well and yelled for her to stop. She ran, and as she was running,
20 she took off her burning clothes. She ran towards the Serb neighbourhood
21 of Megdan.
22 Your Honours, I ask that we briefly move into private session.
23 JUDGE ROBINSON: Private session.
24 THE REGISTRAR: Your Honours, we are in private session.
25 [Private session]
11 Page 3558 redacted. Private session.
6 [Open session]
7 MR. GROOME: VG-035 also saw evidence of the fire. At around
8 9.00 p.m.
9 bathroom window of the house. She went and looked and saw a huge flame.
10 She testified that she had never seen a flame so high and assumed that a
11 house must be engulfed.
12 VG-119, who had seen Milan
13 that evening, also saw Milan Lukic after the fire. According to her
14 evidence, at about 10:00 p.m.
15 her house earlier that night had returned. This group included
17 that the soldiers were dirty and dripping with sweat.
18 Ms. Turjacanin testified that after escaping from the burning
19 house, she was severely burned on her face and hands and felt very ill.
20 Nevertheless, she returned to Bikavac to warn the remaining residents to
21 leave. Ms. Turjacanin testified that she went to four houses in Bikavac
22 to warn the residents. The fourth house she visited was the Salic family
23 house. VG-119's testimony confirms this account.
24 VG-035 also saw Zehra Turjacanin after the fire. She estimates
25 that Zehra arrived at her house after midnight. When VG-035's
1 mother-in-law opened the door, Zehra told them that Milan Lukic had set
2 everything on fire and that she had tried to save her sister but wasn't
3 able to. Ms. Turjacanin then left saying that she was going to warn
5 Following Zehra's warning, VG-035, her children and her
6 sister-in-law tried to flee Bikavac. They passed by the house and
7 smelled burned bodies and burned hair. In the end, they were unable to
8 leave that night.
9 Each of the witnesses who testified about these events had a good
10 opportunity to observe Milan Lukic on the day in question. They were
11 each familiar with Milan Lukic from before, and thus, had a solid basis
12 for recognizing him.
13 On the night in question, Ms. Turjacanin had an excellent
14 opportunity to observe Milan Lukic. She also had a solid basis for
15 recognizing him. She specifically recalled seeing Milan Lukic two times
16 in the minutes preceding the inferno at the Meho Aljic house. First, she
17 saw him standing near her house, when she and her family first came out
18 of their house. Second, she saw him when he took her gold chain from her
19 neck as she was entering Meho Aljic's house.
20 On this second occasion, Milan Lukic was standing immediately
21 beside the door of the Meho Aljic house. The same door that would later
22 be barricaded as the last of the victims walked into the house.
23 Milan Lukic was necessarily close enough to touch Ms. Turjacanin at this
24 point. Ms. Turjacanin clearly had an excellent opportunity to observe
25 Milan Lukic on this occasion.
1 She also had an excellent basis to recognise him. She attended
2 secondary school in Visegrad at the same school Milan Lukic attended.
3 She was older than him and, consequently, was in her fourth year of
4 secondary school when Milan Lukic was in his first. Ms. Turjacanin's
5 brother, Dzevad Turjacanin, was younger than she was, and was in the same
6 class as Milan Lukic. In fact, Ms. Turjacanin's brother Dzevad sat at
7 the same school table as Milan Lukic.
8 During their school days, Ms. Turjacanin saw Milan Lukic during
9 breaks between classes at school. Students who smoked would go behind
10 the school for a cigarette during these break times. Since both
11 Ms. Turjacanin and Milan Lukic smoked, she would see him there behind the
12 school during class breaks.
13 In addition to this strong foundation of prior familiarity with
14 Milan Lukic, Ms. Turjacanin also had three opportunities to observe him
15 in person after his return to Visegrad in 1992, and before the night of
16 the fire.
17 The first of these opportunities arose in the afternoon of a day
18 in June. Ms. Turjacanin was at the house of her neighbour. At one
19 point, Milan Lukic arrived at the house, politely greeted the ladies, and
20 told them that he would protect them. He stood about a metre away. She
21 had a clear view of him in good light. She immediately recognised him as
23 On another afternoon in June, Ms. Turjacanin saw Milan Lukic at
24 her place of work in Visegrad, which was a lady's clothing factory.
25 Milan Lukic had come to that factory to find one of his neighbours, a
1 woman who also worked at the factory.
2 Ms. Turjacanin's third opportunity to observe Milan Lukic
3 occurred in late June 1992. On that occasion, she watched as group of
4 soldiers brought by Milan Lukic burned two men to death. Milan
5 his group doused the two men with gasoline and set them on fire.
6 In sum, Ms. Turjacanin knew who Milan Lukic was from their school
7 days. She then saw him clearly on multiple occasions in June, and was in
8 a good position to recognise him when she saw him on the 27th of June,
9 shortly before the Bikavac fire.
10 VG-035's contact with Milan Lukic began on the 26th of June. On
11 that day, Milan Lukic appeared outside her house with a Serb boy.
12 Milan Lukic introduced himself by name. She testified that when she
13 learned who he was, she was frightened. She had heard that he had been
14 doing bad things in Visegrad. Milan Lukic asked the witness about her
15 husband, where she got her house, where she was working, and as they were
16 discussing these matters, they also discussed their ages. And
17 Milan Lukic told VG-035 that he was born in 1967.
18 When VG-035 told Milan Lukic that she didn't know where her
19 husband was, Milan Lukic said, "I'll check and I'll be back to tell you.
20 If you are lying to me, I will kill you." During the course of this
21 conversation, VG-035 and Milan Lukic were less than a metre away from
22 each other. At the end of the conversation, Milan Lukic told her that he
23 would return.
25 where VG-035 was staying with her family. When her mother-in-law
1 answered the door, Milan
2 entered the bedroom where VG-035 was lying in bed, and pulled the bed
3 covers off. He was standing immediately beside her bed with nothing
4 obstructing his face.
5 Sredoje Lukic stood behind him. VG-035 recognised Milan Lukic as
6 the person who had introduced himself to her in front of the house the
7 day before. Milan Lukic returned several hours later, again banging on
8 the door of the house. Again VG-035's mother-in-law opening the door.
9 He took her out of the house and put her in the back seat of the car that
10 had been owned by Ekrem Dzafic. He drove the two of them to a house
11 owned by the Forta family in an area called Megdan.
12 Your Honour, I'd ask that we briefly go into private session.
13 JUDGE ROBINSON: Yes.
14 THE REGISTRAR: Your Honours, we are in private session.
15 [Private session]
3 [Open session]
4 MR. GROOME: As discussed earlier, VG-035 saw Milan Lukic again
5 around 4.00 or 5.00 in the afternoon when he returned to her house.
6 VG-035 thus had the opportunity to see and observe Milan Lukic in the
7 closest possible proximity for several hours over the course of two days.
8 There can be no doubt that the image of Milan Lukic was crystal clear and
9 fresh in VG-035's mind on the day, when she recognised him again, of the
10 Bikavac fire.
11 VG-119 was also very familiar with Milan Lukic. She had recently
12 had two opportunities to observe him at close range for extended periods
13 of time.
14 VG-119's first opportunity to observe Milan Lukic came in late
15 May of 1992. Her and her family had attempted to flee from Visegrad to
17 Visegrad, the taxi that they were riding in was stopped at the old bridge
18 in Visegrad by three cars filled with armed soldiers. One of the cars
19 was the Zukic red Passat that VG-119 recognised. Four or five soldiers
20 got out of these cars. One of them was Milan Lukic. Although VG-119 had
21 not known Milan Lukic previously, her husband did and he identified him
22 to her.
23 Milan Lukic ordered VG-119's family to get back into the taxi and
24 to go to their home in Dusce. Milan Lukic and the other soldiers got
25 into their cars and followed the taxi to VG-119's home. When they
1 reached their home, Milan Lukic ordered the women to go inside. He took
2 VG-119's husband away in his car, while VG-119's father-in-law was taken
3 away in another car. Neither was seen alive again.
4 VG-119's second opportunity to observe Milan Lukic occurred later
5 that same day, at about 8.00 in the evening. Milan Lukic arrived at her
6 house and asked for the wife of the husband he had taken away earlier in
7 the day. He took VG-119 and put her in the red Passat. He drove her to
8 the Vilina Vlas Hotel where she remained for several hours. Later that
9 night, a Serb soldier who she had seen earlier in the night reappeared
10 and on Milan Lukic's instructions took VG-119 back home to Dusce.
11 That night, VG-119 and the other women she was hiding with
12 decided to leave Dusce because they were afraid Milan Lukic would return.
13 They left the house in Dusce for Bikavac, where they were on the night of
14 the Bikavac fire.
15 Thus, prior to the night of the Bikavac fire, VG-119 had the
16 opportunity to observe Milan Lukic at very close range for a relatively
17 long period of time on two occasions. On the night of the Bikavac fire,
18 she saw him twice in the house where she was staying. In sum, VG-119 had
19 an excellent basis on which to identify Milan Lukic and an excellent
20 opportunity to observe him in order to do so.
21 These identifications were made by four witnesses who were very
22 familiar with Milan Lukic before the night in question. These four
23 identifications are also independent. None of the four witnesses'
24 identifications is based on information received or related to any other
25 witness. Indeed, none of the four witnesses were even in the same place
1 at the time they saw Milan Lukic.
2 Finally, the testimony of these four witnesses gives a very clear
3 and consistent picture of the events of that night, indicating that these
4 witnesses have strong, independent recollections of these events. In
5 light of this evidence, the Prosecution submits that a reasonable trier
6 of fact could clearly convict Milan Lukic of Counts 13 through 17 of the
8 The murder of Hajra Koric. On a day between the 1st of July and
9 the 5th of July, Hajra Koric was brutally murdered by Milan Lukic.
10 VG-035, an eyewitness to the murder, stated: "Milan Lukic shot
11 Hajra Koric. No one else."
12 The Prosecution has led evidence from one eyewitness, VG-035,
13 regarding the killing of Hajra Koric. As VG-035's ability to identify
14 Milan Lukic on that day that Ms. Koric was killed is one of the key
15 aspects of the Prosecution's case with respect to these counts, the basis
16 of VG-035's familiarity with Milan Lukic has already been discussed in
18 Following the day of the Bikavac fire, the next time VG-035 saw
19 Milan Lukic was on the day he killed Ms. Koric. At that time, VG-035 had
20 moved to a house in the Potok neighbourhood of Visegrad, where a group of
21 women and children were staying because this house was close to the bus
22 station and VG-035 had been trying to escape from Visegrad. At some
23 point on that day of Hajra Koric's murder, a group of soldiers entered
24 the house where VG-035 was staying. Ms. Koric hid under the kitchen
25 table, but the soldiers chased her and the other women and children out
1 of the house. In the midst of the turmoil, Milan Lukic and his group
2 appeared. After he stopped the group, Milan Lukic lined the women up.
3 Ms. Koric was last in line. Milan Lukic and another man went from woman
4 to woman looking for Hajra Koric. When Milan Lukic recognised her, he
5 pulled her out of the line.
6 After Milan
7 He laughed as she fell to the ground, and said, "What is she doing?"
8 Milan Lukic then turned Hajra Koric over with his foot and shot her once
9 in the back. After this, she gave no signs of life.
10 Your Honours, I will not address the evidence with respect to
11 Uzamnica. Now having detailed the acts of the accused and summarized the
12 relevant evidence, I will now turn my attention to the actual charges and
13 the establishment of the required elements. As Judge Parker said in
14 delivering the 98 bis decision in the Mrksic case on the 28th of June of
15 2006, "There must be evidence which meets the standard that we have set
16 out above in respect of every element of the offence alleged by the
18 The two broad categories of crimes alleged in the indictment are
19 crimes against humanity and violations of the laws or customs of war. I
20 will summarize the applicable law and incorporate by reference my earlier
21 submissions on the evidence without repeating what I have said so far.
22 I will first deal with crimes against humanity. What
23 distinguishes ordinary crimes perpetrated during times of chaos and
24 crimes against humanity is the connection these crimes have to a
25 widespread or systematic attack against a civilian population. This
1 chapeau can be broken down into five constituent elements.
2 The first element is the existence of an attack. An attack is
3 distinguished from an armed conflict and is -- in its simplest terms,
4 constitutes acts of violence perpetrated against a civilian population.
5 It is not necessary to recount the six comprehensive factors enunciated
6 by the Trial Chamber in the Dragan Nikolic Rule 61 decision. It is clear
7 that what happened to the civilian population of Visegrad was very much
8 an attack on its civilian Muslim population.
9 The goal of the attack was the ethnic cleansing of the Muslim
10 population of Visegrad.
11 The second chapeau element is the connection between the attack
12 on the civilian population and the acts of the accused as required or as
13 defined in the Vasiljevic trial judgement at paragraph 32 and the Kunarac
14 trial judgement at 418, which set out two factors for consideration.
15 First, did the conduct of the accused, by its nature and effect, further
16 the attack on the civilian population? Second, was the accused aware
17 that his acts were part of an overall attack?
18 In the context of this case, both are abundantly clear. The
19 selection of victims, the timing of the crimes, the pattern of searching
20 for men and then killing large numbers of women, elderly and children,
21 all lead to the inescapable conclusion that the acts of Milan and
22 Sredoje Lukic was in fact, and in their minds, inextricably connected to
23 the overall campaign of ethnic cleansing of Muslims in Bosnia during the
24 spring and summer of 1992.
25 The third element require that is the attack be directed at the
1 civilian population. In other words, that it be the target of the
2 attack. Again would I cite the Kunarac Appeals Chamber judgement, this
3 time at paragraph 91. In this case there can be no doubt that the
4 careful selection of civilians, the inducements offered a fearful and
5 terrified people made clear that it was the civilians of Visegrad that
6 the attack was directed against.
7 The fourth element, the widespread or systematic nature of the
8 attack, this element defines a crime against humanity, not only by its
9 target, but also by its scale. Was it widespread or systematic?
10 Widespread connotes the scale of the crimes, and in this case you have
11 heard compelling demographic and pathology evidence indicating the
12 widespread nature of the crimes perpetrated against the civilian
13 population in Visegrad.
14 With respect to systematic, this refers to the organisation of
15 the attack. Were the crimes a disconnected series of events that simply
16 coincided with each other? Or, as required by crimes against humanity,
17 were they the result of a organised effort? In addition to the
18 demographic evidence, the Chamber has heard sufficient evidence to
19 conclude that the attack on the civilian population of Visegrad proceeded
20 by way of a system ensuring the destruction of the Muslim population.
21 Targeting entire villages such as Koritnik and Bikavac, going house to
22 house for an intense and unrelenting period of ethnic cleansing.
23 The fifth element concerns the mens rea of the accused, and the
24 Prosecution must establish that the accused is aware that there is an
25 attack on the civilian population, and that his acts are part of or are
1 connected to the attack. This was first enunciated in the Blaskic
2 Appeals Chamber judgement at paragraphs 124 to 127.
3 The record is replete with evidence from which a reasonable
4 Trial Chamber could find that both of these accused acted with full
5 knowledge that their conduct was not only part of the attack on the
6 civilian population of Visegrad, but was in fact the primary attack on
7 the civilian population itself.
8 Count 1 of the indictment charges the first crime against
9 humanity, the crime of persecution. Persecution on political, racial or
10 religious grounds is a crime against humanity that, in addition to the
11 chapeau elements, has three underlying elements. One, the occurrence of
12 a discriminatory act or omission. Two, the discriminatory basis was on
13 political, religious or racial grounds. And three, the accused intended
14 to cause and, in fact, did cause an infringement of an individual's
15 enjoyment of a fundamental right.
16 While persecutory acts can encompass a plethora of serious
17 infringements on personal rights, for the purposes of this indictment
18 against both accused, the Prosecution's case, as set out in the second
19 amended indictment, alleges five such persecutory acts. In
20 paragraphs 4(a), 4(c), 4(d), and 4(e), the Prosecution alleges Milan
21 Sredoje Lukic's treatment and conduct towards approximately 140 Muslim
22 civilians constitutes persecutory acts. These acts included their
23 confinement, the theft of their personal property, their harassment,
24 humiliation and psychological abuse, as well as their subsequent murder
25 by setting them on fire.
1 With respect to Milan Lukic alone, the Prosecution also asserts
2 in paragraphs 4(a) and 4(d), that his treatment and murder of Muslims at
3 the Drina
4 also constitutes persecutory acts.
5 In paragraph 4(b), the Prosecution has established that the cruel
6 and inhumane treatment of the Muslim detainees at the Uzamnica camp were
7 also persecutory acts.
8 I've already summarized the evidence of all of these acts and
9 will not recall it again, other than to remind the Chamber that all of
10 the victims in this case were Muslims, and during the course of the
11 crimes, many of the witnesses refer to derogatory language used to refer
12 to them as Muslims, words such as "balija." The evidence is ample and
13 compelling and clearly meets the test set forth by Rule 98 bis.
14 Murder as a crime against humanity has been charged in Count 2
15 with respect to the Drina River
16 factory killings, Count 9 related to Pionirska Street fire, Count 14
17 related to the fire in Bikavac, and Count 18 related to the killing of
18 Ms. Koric.
19 The elements of murder as a crime against humanity, and murder as
20 a violation -- I should say the underlying elements of murder as a crime
21 against humanity and murder as a violation of the laws or customs of war
22 are essentially the same except for their chapeau elements.
23 The elements of murder are the death of the victim, the death was
24 caused by an act of the accused, and thirdly, the act was done with the
25 intention to kill or to inflict grievous bodily harm in the reasonable
1 knowledge that such was likely to cause death.
2 In the case of every criminal event alleged in the indictment, it
3 has been clearly established that the deaths of the victim were the
4 product of the intentional conduct of these two accused. The victims
5 were either shot to death or burned to death.
6 Inhumane acts as a crime against humanity has been charged in
7 Count 4 with respect to the Drina River
8 Pionirska Street fire, Count 16 related to the Bikavac fire, and Count 20
9 related to the Uzamnica camp. The concept of inhumane acts is a broad
10 one and of a residual nature, in that it casts a large net to encompass
11 criminal acts not specifically enumerated in other specific crimes
12 against humanity.
13 The elements may be listed as: One, it is an act of like
14 seriousness to other enumerated acts under Article 5.
15 The act caused serious mental or physical suffering or injury,
16 and constituted a serious attack on human dignity. And lastly, the
17 attack was performed intentionally by the accused.
18 The evidence clearly establishes that each of the accused -- and
19 this clearly establishes that each accused, in the counts on which they
20 have been charged, have committed the crime of inhumane acts with respect
21 to the survivors of those crimes.
22 Extermination as a crime against humanity has been charged in
23 Counts 8 and 13 with respect to fires in Pionirska Street and Bikavac,
24 respectively. Quoting from the Akayesu trial judgement at paragraph 591:
25 "Extermination is a crime which by its very nature is directed against a
1 group of individuals. Extermination differs from murder in that it
2 requires an element of mass destruction which is not required for
4 There is no minimum threshold or number of victims. With respect
5 to the mens rea, the Prosecution must establish that the person intended
6 to kill a large number of individuals or to intentionally inflict
7 grievous bodily harm to a large number of people with the knowledge that
8 such was likely to cause death.
9 The Prosecutor must not only prove that the perpetrator intended
10 to kill the individual victim with knowledge of the larger murderous
11 context, I'm quoting from Mr. Mettraux's book, International Crimes and
12 the Ad Hoc Tribunals, at page 179. As the Ruzindana Trial Chamber
13 stated: "A single killing or a small number of killings do not
14 constitute an extermination. In order to give practical meaning to the
15 charge as distinct from murder, there must in fact be a large number of
17 The Prosecution has established with evidence upon which a
18 reasonable Trial Chamber could convict Milan and Sredoje Lukic of
19 extermination for their conduct as described in Counts 8 related to
20 Pionirska Street, and Count 13 related to the Bikavac fires.
21 Violations of the laws and customs of war. I now turn my
22 attention to the violations of the laws and customs of war and begin by
23 summarising the chapeau elements.
24 In order for a crime to be considered a war crime it must be
25 established first, that a state of armed conflict exists. And two, there
1 is a nexus between the crime and the armed conflict.
2 The Tadic jurisdictional decision was the first to deal with
3 whether an armed conflict existed in Bosnia, and in determining that it
4 did, it found that when there is a "protracted armed violence between
5 governmental authorities and organised armed groups, or between such
6 groups within a state." That's paragraph 7, and a similar statement was
7 made in the Kunarac appeals judgement at paragraph 56.
8 There is no clear line or threshold indicating the level at which
9 hostilities are sufficiently intense to constitute an armed conflict.
10 The Trial Chambers have relied on a number of factors articulated in the
11 Tadic trial judgement, the Akayesu Trial Chamber, and the Tadic
12 jurisdictional decision, as well as several other significant judgements
13 and decisions. The factors some of the factors that have been relied on
14 include: One, the involvement of a large amount of weaponry and troops.
15 Two, sustained and coordinated military operations. Three, inability of
16 a state, in this case Bosnia
17 the scope of the geographic area implicated in the conflict.
18 Pictet, in the commentary on the Geneva Conventions says that the
19 closely related criteria of intensity and organisation are used primarily
20 "for the purpose as a minimum of distinguishing an armed conflict from
21 banditry, unorganized and short-lived insurrections or terrorist
22 activities which are not subject to international humanitarian law."
23 That's page 33.
24 The Tadic jurisdiction decision at paragraph 69 and 70 and the
25 Kunarac appeals judgement at 57 and 64 hold that once established -- once
1 it has been established that an armed conflict is in existence, the laws
2 of war will in principle apply and continue to apply until a general
3 conclusion of peace or until a peaceful settlement has been reached.
4 That clearly --
5 JUDGE ROBINSON: Mr. Groome, in the Slobodan Milosevic case, the
6 Trial Chamber wrote a Rule 98 bis decision which was 187 pages, I think.
7 Are you threatening to challenge that length? I hope not. It was
8 shortly after that that the present Rule 98 bis was formulated by the
9 plenary, and I wonder whether we need all the detail that you are
10 offering us?
11 MR. GROOME: Your Honour, I'll be guided by the Chamber. I took
12 some of the comments from before the break that this was a primary area
13 of concern for the Chamber. I will move from -- I don't mean to insult
14 the Chamber by citing so much of the law, so let me move to some of the
15 evidence that the Chamber has heard on this issue.
16 In this case, VG-011 testified: "In April 1992, that is to say
17 the beginning of April, barricades were set up, set up by both sides. A
18 paramilitary unit from Serbia
19 and there was an armed conflict. According to the documents that were
20 seized by one such group, the people involved were so-called White
21 Eagles." That was from the witness's testimony in Vasiljevic on the 12th
22 of September, 2001.
23 Mirsada Kahriman who testified before you, stated: "The war in
24 the area started around 5th of April, 1992, when the area was shelled
25 from the direction of the Serbian border."
1 VG-025, in his 92 quater statement that is now in evidence as
2 P168: "After this we started to organise ourselves into some sort of
3 Territorial Defence which developed into some sort of army. We were
4 considered as members of the BiH Army from the 11th of June, 1992."
5 There's a statement of Milan Lukic in evidence, a statement that
6 was given to a witness of Serb -- someone from the Serb government and
7 it's Prosecution Exhibit 149. Quoting from that, this is Milan Lukic's
8 own words: "I have been on the front in Visegrad and its surroundings
9 since the 10th of April, 1992. I am the commander of a group called the
10 Avengers. The group has between 20 and 50 men and is under the command
11 of the Visegrad TO."
12 So Your Honours, I believe -- well, let me make mention of one
13 more, it's an adjudicated fact. Fact number 10 that the Chamber found to
14 be an adjudicated fact was that the Uzice Corps entered Visegrad on the
15 14th of April. So Your Honours, I believe there is ample evidence that
16 an armed conflict was in existence prior to the commission of any of the
17 crimes in the indictment, and there certainly is no evidence that there
18 was a general cessation of hostilities during the period of the
20 Murder as a violation of the laws or customs of war has been
21 charged in Count 3 with respect to the Drina River
22 related to the Varda factory killings, Count 10 related to
23 Pionirska Street fire, Count 15 related to the fire in Bikavac, and Count
24 19 related to the killing of Ms. Koric. As I've said earlier, the
25 underlying elements are essentially the same for whether the crime is
1 charged as a crime against humanity or violation of the laws or customs
2 of war. I incorporate these elements and my comments about the evidence
3 into this part of my argument.
4 Cruel treatment as a violation of the laws or customs of war has
5 been charged in Count 5 with respect to the Drina River
6 12 related to Pionirska Street, Count 17 related to Bikavac, and Count 21
7 related to Uzamnica. The Celebici Trial Chamber, in paragraph 50 of its
8 judgement, characterized cruel treatment as "treatment that is inhumane."
9 Cruel treatment, inhumane treatment and inhumane acts essentially
10 require similar proof. The elements can be defined as an intentional act
11 which causes serious mental or physical suffering, or constitutes a
12 serious attack on a person's dignity. The attack is perpetrated against
13 someone who is not participating in the hostilities, and the mens rea
14 element is that the perpetrator of the cruel treatment did so
15 intentionally. Once again, the charge of cruel treatment as it relates
16 to each accused has been clearly established by the survivors of the
17 crimes that have been charged.
18 Your Honours, that concludes my submission on the Rule 98 bis.
19 The Prosecution in its case in chief has adduced ample and compelling
20 evidence upon which a reasonable Trial Chamber could enter a conviction
21 on the charges contained in the indictment against Milan and
22 Sredoje Lukic. I thank you for your attention.
23 JUDGE ROBINSON: Thank you, Mr. Groome.
24 Any reply, Mr. Alarid?
25 MR. ALARID: Very briefly, Your Honour, and I guess I'm slightly
1 more baited into the -- into a couple of issues on the facts and one
2 would be, like, 115, VG-115 who supposedly witnessed Bikavac. Well, if
3 you put Ms. Turjacanin's and 115's maps of the neighbourhood together,
4 then VG-115 is in the orchard with the soldiers who are out of ammo and
5 drugged up and letting Ms. Turjacanin walk by. Just by virtue of the way
6 the maps rode out. So, you know, those are one of the things where I
7 think the inconsistencies or the differences between two statements
8 create an illogical premise.
9 Going back, though, to, I think, the more legal side of it which
10 is whether or not -- I do find it hard that Mr. Groome relies on lay
11 witnesses to establish the existence of the armed conflict in compliance
12 with the statute.
13 I understand perceptions might think of it that way. However, I
14 don't believe these perceptions would rise to the level of a legal
15 conclusion which would satisfy the jurisdiction of the Court.
16 If you take into consideration that no banditry or terrorism is
17 not or does not fall into the jurisprudence and jurisdiction of an
18 international Tribunal, that is the nature of the argument, because at
19 this stage -- and I would also take exception to characterizing the
20 summary of Mr. Lukic's supported supposed interrogation as a statement.
21 Regardless of what Mr. Lukic says, he even cannot establish the existence
22 of an armed conflict despite the fact that -- that those words in a
23 summary are trying to be used against him for purposes of establishing
25 I think at the very worst case scenario, assuming all facts in
1 favour of the Prosecution, they still have not established that this was
2 not simply banditry or terrorism, which would fall outside the scope of
3 jurisdiction of the Court. Thank you.
4 JUDGE ROBINSON: Thank you. I thank all the parties for their
5 submissions. The Trial Chamber will consider them carefully and give its
6 decision tomorrow. We are adjourned.
7 --- Whereupon the hearing adjourned at 6.47 p.m.
8 to be reconvened on Thursday, the 13th day
9 of November, 2008, at 2.15 p.m.