1 Friday, 23 January 2009
2 [Appeals Hearing]
3 [The accused entered court]
4 --- Upon commencing at 9.00 a.m.
5 JUDGE MERON: Please be seated.
6 Registrar, would you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. Good morning to
8 everyone in the courtroom.
9 This is case number IT-95-13/1-A, the Prosecutor versus Mile
10 Mrksic and Veselin Sljvancanin.
11 JUDGE MERON: Thank you.
12 May I ask Messrs. Mrksic and Sljivancanin if they can hear me and
13 follow the proceedings through the translation. Mr. Mrksic.
14 THE ACCUSED MRKSIC: [Interpretation] Your Honour, I can follow
15 the proceedings. Thank you.
16 JUDGE MERON: Thank you. Mr. Sljivancanin.
17 THE ACCUSED SLJIVANCANIN: [Interpretation] Good morning, Your
18 Honours. Yes, I can follow the proceedings.
19 JUDGE MERON: Thank you. You may be seated.
20 THE ACCUSED SLJIVANCANIN: [Interpretation] Thank you.
21 JUDGE MERON: Appearances for the Prosecution, please.
22 MS. BRADY: Good morning, Your Honours.
23 Helen Brady appearing on behalf of the Prosecution. With me
24 today are my co-counsel, Mr. Paul Rogers, Mr. Marwan Dalal,
25 Ms. Najwa Nabti, and our case manager, Ms. Alma Imamovic.
1 Thank you.
2 JUDGE MERON: Thank you, Ms. Brady.
3 Appearances for Mr. Mrksic.
4 MR. VASIC: [Interpretation] Good morning, Your Honours. Good
5 morning to all in the courtroom.
6 For the Defence of Mr. Mrksic today, Miroslav Vasic and
7 Vladimir Domazet.
8 Thank you.
9 JUDGE MERON: Appearances for Mr. Sljivancanin.
10 MR. BOURGON: Good morning, Mr. President. Good morning, Your
12 On behalf of Mr. Sljivancanin this morning, Novak Lukic, his lead
13 counsel, is present; Maja Dokmanovic, legal assistant;
14 Ms. Marie-Claude Fournier, legal assistant; and myself, Stephane Bourgon.
15 JUDGE MERON: Thank you, Mr. Bourgon.
16 Now, as you all know, this is a continuation of the appeal
17 hearing in the case of the Prosecutor against Mile Mrksic and
18 Veselin Sljivancanin. I would like to thank the parties for addressing
19 some of the specific issues raised in the addendum to the scheduling
20 order of 12 December 2008
21 those questions which were not covered on Wednesday.
22 Today's proceedings will proceed according to the amended
23 timetable I circulated in court on Wednesday, and we will start from a
24 reply by the appellant, Sljivancanin's reply, 30 minutes.
25 Counsel for Mr. Sljivancanin, would you please start.
1 MR. BOURGON: Good morning, Mr. President. I will have the
2 honour of beginning this morning on behalf of Mr. Sljivancanin. However,
3 before I do so, there's a matter which was brought to my attention.
4 On Wednesday, when we were arguing, my colleague here beside me,
5 Ms. Marie-Claude Fournier, was in the courtroom, and we did introduce
6 her. However, it was brought to my attention there might be some
7 difficulty because she's not officially assigned to the case. However,
8 Mr. President, there is a confidentiality undertaking on her behalf
9 between everything she learns while she works with me, and I kindly ask
10 for leave that she can be attending the proceedings, even though there
11 might be some parts of the session which might be heard in closed
12 session, Mr. President.
13 JUDGE MERON: Thank you.
14 [Appeals Chamber confers]
15 JUDGE MERON: I take it Ms. Brady has no objection.
16 MS. BRADY: No, we have no objection, Your Honour.
17 JUDGE MERON: Thank you.
18 Permission granted. You can proceed.
19 MR. BOURGON: I thank you very much, Mr. President. Thank you,
20 Your Honours, and I thank my colleagues from the Prosecution.
21 Good morning, Your Honours. Good morning to all my colleagues in
22 the courtroom.
23 Mr. President, the first issue I would like to address this
24 morning, on behalf of Mr. Sljivancanin's further reply to the Prosecution
25 response, relates to our third ground of appeal, and that is the notion
1 of duty. Having read the transcript, including what my colleague
2 mentioned on Wednesday - and that was at pages 174 and following - as
3 well as your own observations, Mr. President, at pages 151 to 153, I wish
4 to ensure this morning that I don't leave the Appeals Chamber with the
5 wrong impression concerning the requirement that prisoners of war be well
6 treated at all times. That being said, I would like to confirm and
7 clarify our position on this issue, which is as follows:
8 Mr. President, pursuant to Article 13 of the Geneva Convention 3,
9 prisoners of war must be treated at all times humanely. This implies, of
10 course, that they must be protected, particularly against acts of
11 violence. Pursuant to Article 12 of Geneva Convention 3 as well as
12 pursuant to the commentary to the same convention, the responsibility for
13 the treatment and the protection of prisoners of war is a dual
14 responsibility. This responsibility rests, of course, on the state which
15 holds prisoners of war as well as on agents of that state.
16 All members of the military within a state are agents of the
17 state. Accordingly, it can be said that all members of the armed forces
18 of a state have an obligation to treat prisoners of war humanely, and in
19 some circumstances, Mr. President, a specific duty to protect them. For
20 the state, the duty is triggered as soon as prisoners of war are in the
21 custody of the state. For members of the armed forces, that duty to
22 protect can be triggered in two ways: Firstly, if a member of the armed
23 forces captures a prisoner of war and has a prisoner of war in his
24 custody, then definitely he has a duty to protect that prisoner of war.
25 Secondly, a member of the armed forces may be entrusted by his
1 commander, who is the de jure person having the authority or the
2 responsibility, and he can give that duty to the member of the armed
3 forces within his unit. The best example of this, Mr. President, is that
4 of soldiers who are assigned specifically as guards within a prisoner of
5 war facility. Now, how can a soldier be entrusted with that
6 responsibility or a member of the armed forces? This can happen in two
7 ways. A member of the armed forces may have a duty to protect by virtue
8 of the position they hold in the unit. Members of the armed forces may
9 also have a duty to protect pursuant to the orders and the tasks issued
10 to them by their commander.
11 It is our position, Mr. President, that the responsibility which
12 stems from the duty to protect that a member of the armed forces might be
13 entrusted with is limited to one of two things; the specific attributions
14 which goes with the post being held by that member, or the specific
15 limitations of the orders and tasks issued to him by his commander.
16 In this case, prisoners of war were in the custody of Operational
17 Group South, which implies that the commander of that unit, by virtue of
18 his position, had the de jure -- as the de jure person, having the duty
19 to protect them.
20 As for Mr. Sljivancanin, in his capacity as security organ of
21 Operational Group South, it is our position that he did not have any
22 specific duty to protect the prisoners of war. That's a proposition the
23 Prosecution agrees with, as we have heard on Wednesday.
24 It follows in our submissions that if Mr. Sljivancanin had a duty
25 to protect prisoners of war on 20 November 1991, it is limited, as we
1 heard on Wednesday, to what -- to that responsibility which was bestowed
2 on him specifically by his commander, Mile Mrksic. Consequently,
3 Mr. President, it is our position that at best, Mr. Sljivancanin had a
4 duty to protect the prisoners of war at the Vukovar Hospital
5 directing the triage at the Vukovar Hospital
6 At paragraph 391 of the judgement, contrary to our third ground
7 of appeal, the first sub-ground, the Trial Chamber found the following:
8 The Trial Chamber said Mr. Sljivancanin's responsibility extended to
9 ensuring that the war crimes suspects were transported to the prison at
10 Sremska Mitrovica, whereas the civilians were to go to Sid in Serbia
11 to the Croatian border. In either case, pursuant to the finding of the
12 Trial Chamber, Mr. Sljivancanin was to transport them to their
14 Our position, Mr. President, is that if the Appeals Chamber
15 confirms this finding, contrary to our ground of appeal, once the
16 prisoners of war were at the JNA barracks and the plan was changed
17 whereas instead of going to Sremska Mitrovica, Mile Mrksic decided to
18 send them to Ovcara, at that time Mr. Sljivancanin no longer had any duty
19 or any specific duty to protect the prisoners of war. From that moment
20 on, Mr. President, Mr. Sljivancanin was kept out of the loop, and it is
21 his commander who was responsible, as the Trial Chamber found at
22 paragraph 300, who was responsible for the transport of the prisoners of
23 war, their security, and their ultimate decision as to where they would
24 go -- destination, sorry.
25 The commander of Operational Group South was issuing orders to
1 other officers and receiving information in relation to what was
2 happening to the prisoners of war through other officers. From that
3 moment on, there was no more specific responsibility bestowed on
4 Mr. Sljivancanin.
5 I would now like to address the Prosecution's submissions --
6 JUDGE MERON: Mr. Bourgon, does this really make sense, in terms
7 of simple common sense, a unit or an officer is entrusted with
8 responsibility for POWs? The first destination is a, and then the
9 destination is changed to B. This officer can say, Goodbye, goodbye, I
10 have finished my responsibilities, I can leave those people without
11 caring for their minimum needs or when there are paramilitaries around
12 particularly, who are screaming for blood. In time of war, surely there
13 is some kind of flexibility in terms of destinations of transfer. Those
14 things change constantly, according to tactical situations.
15 So can you just say, My job is done, I can now start reading "The
16 New York Times" and relax? You know, counsel, we need common sense in
17 interpreting international humanitarian law, and there are certain
18 objects which are deeply rooted in the Geneva Conventions, and the idea
19 is that there is a very fundamental duty of care and that basically you
20 have to perform those duties until you hand those duties over to somebody
21 who could take care of the welfare of POWs.
22 MR. BOURGON: I thank you for your observation, Mr. President,
23 and I'm glad that you mention both two things; first of all, the
24 flexibility of wartime conditions and tactical conditions, as well as the
25 fact that once a duty has been removed from a person, that person no
1 longer has that duty.
2 Now, in the facts of this case, this is what happened:
3 Mr. Sljivancanin had some kind of tasking and responsibility in respect
4 of the triage in the Vukovar Hospital
5 left, and he knows where the buses were going, and the facts establish
6 that his deputy is sitting on that bus. So at that point on, there's no
7 problem. However, once that duty is removed from him because that duty
8 is given to somebody else for a different reason, this is what the facts
9 of this case establish, that from the moment that there was a decision,
10 those people would not be going to Sremska Mitrovica, but they would be
11 handed over to members of the TO and paramilitaries over at Ovcara. From
12 that point on, Mr. President, when that decision was made, the
13 responsibility was removed from Mr. Sljivancanin. It's not that he
14 ignored the responsibility. He was at the hospital, as the facts
15 relieve. He was handling the care of all the civilians who were there.
16 He was acting according to the responsibilities which he was entrusted
17 with by taking care of those civilians, and he did that until 2.30 in the
18 afternoon. At that point on, he had lost that responsibility. It was
19 given to somebody else. Thank you, Mr. President.
20 I would now like to address the Prosecution's submissions in
21 relation to Ground 2 of our appeal, and Ground 2 raises the question, of
22 course, whether aiding and abetting by omission, in the specific form
23 recognised by the Trial Chamber, is recognised under the Statute of this
25 The Prosecution at page 163 does exactly what we respectfully
1 submit the Trial Chamber did. It confuses omission liability as a
2 principal perpetrator for a culpable omission and aiding and abetting by
3 providing moral encouragement or moral support to the perpetrators of a
4 crime; that is, by being present at the scene of a crime. That is
5 exactly what we ask the Appeals Chamber, Mr. President, to address.
6 In our submission, omission as a principal perpetrator requires
7 three things; that the accused had a duty to act, pursuant to criminal
8 law; that he deliberately failed to act -- fulfill his duty; and that he
9 intended the consequences or was aware of the consequences arising from
10 his failure to act, and he accepted them.
11 In this case, even if the Appeals Chamber was to confirm that
12 Mr. Sljivancanin had a duty to protect the prisoners of war at Ovcara,
13 there is no evidence that he intended the consequences or that he was
14 aware of the consequences and that he accepted them. Consequently, the
15 Trial Chamber could not, in our view, Mr. President, find him guilty for
16 an omission as a principal perpetrator, and it is also our respectful
17 submission that the Appeals Chamber could not, on the basis of the
18 evidence, of course, change the Trial Chamber's verdict from aiding and
19 abetting by omission to a culpable omission.
20 On the other hand, Mr. President, there is commission by
21 omission, where the accused provides encouragement and moral support, and
22 this requires the following, that the accused be present or very close to
23 the scene of a crime; that the presence of the accused at the scene or
24 very close; provides encouragement or moral support to the perpetrators
25 in the sense that it contributes substantially to the commission of the
1 crime by them; and, finally, that the accused knew that by being present
2 at the scene or close to the scene of a crime, that he was assisting the
3 perpetrators in the commission of a crime.
4 It must be noted regarding commission by omission pursuant to
5 moral encouragement that it is not necessary, in our view, that the
6 accused have a positive duty to act, although as I explained Wednesday,
7 this may become relevant.
8 In this case, the Trial Chamber rightly found that
9 Mr. Sljivancanin did not provide any encouragement or moral support to
10 the perpetrators of the mistreatment of prisoners of war at Ovcara.
11 Consequently, the Trial Chamber could not find him guilty for commission
12 by omission, and it is our respectful submission that the Appeals Chamber
13 could not, again, on the basis of the evidence on the record, change the
14 Trial Chamber's verdict from aiding and abetting by omission to that of
15 commission by omission.
16 In support of these submissions, we respectfully refer the
17 Appeals Chamber to pages 162 and 163, where my colleague from the
18 Prosecution referred to the Blaskic case as being a situation which was
19 similar in every respect to the facts of the present case. This is
20 certainly not the case, Mr. President. Firstly, the Trial Chamber in
21 this case made it clear that the facts had to be distinguished from that
22 of Blaskic. That's the judgement at paragraph 667, referring also to
23 paragraphs 553 and 554. Secondly and more importantly, when Blaskic
24 omitted to take action in respect of civilians who were used as human
25 shield, the persons committing the offence were his direct subordinates.
1 The civilians detained in front of his headquarters were in his immediate
2 custody. His failure to do anything relates only to himself as well as
3 to his direct subordinates. All he had to do was to issue one order to
4 his subordinates or to cancel his own order and send the civilians back
5 to their village. There was no action to be taken in respect of a third
6 party trying to hurt those civilians. This is why, in these
7 circumstances, his failure to take action was considered by the
8 Appeals Chamber, in our respectful submission, as a deliberate and
9 intentional omission because when he left his headquarters on that day,
10 he must have seen the civilians held by his subordinates in front of his
11 headquarters. He knew already that the offense of human shields, of
12 using civilians as human shields, was being committed or, if not, already
13 consumed, and all he had to do to protect those civilians was to cancel
14 his own order, which was within his prerogative. He left without doing
16 To the extent that Blaskic may have been convicted for aiding and
17 abetting, which in the view taken by the Trial Chamber in this case,
18 based on the indictment, of course, that's not clear, then it can only be
19 that he provided moral encouragement and support to his own subordinates
20 guarding the civilians because his subordinates knew he was there, and he
21 condoned their actions. Both scenarios, Mr. President, are unrelated to
22 the situation of Mr. Sljivancanin.
23 Lastly, with respect to aiding and abetting, my colleague from
24 the Prosecution referred to the Essen
25 was strikingly similar to the present case. That was at page 165. It is
1 our submission, Mr. President, that the Essen lynching case deals with
2 culpable omission and/or a case of inciting, both of which do not find
3 application here.
4 The next issue I'd like to address --
5 [Defence counsel confer]
6 MR. BOURGON: I will stop here, Mr. President. I'm short of
7 time. My colleague will take over for the remainder of the reply this
9 Thank you, Mr. President.
10 MR. LUKIC: [Interpretation] Thank you very much, Your Honours.
11 Good morning to Your Honours. Good morning to all participants
12 in the proceedings.
13 In response to the first ground of appeal concerning the error of
14 the Trial Chamber when they established the presence of Sljivancanin at
15 Ovcara, the OTP did not present any arguments challenging the very
16 essence of the Sljivancanin appeal, and those are the errors made by the
17 Trial Chamber. Instead of that, the OTP, for the most part, repeats the
18 arguments of the Court from the judgement without referring to the
19 allegations from the appeal at all.
20 The OTP, further on, gives their own assessment and
21 interpretation of the evidence, and that is most obvious when they
22 compare the testimony of Dodaj and P-009. Claiming that they were at
23 different places and that they had a different perception of events is
24 something that the Prosecutor could not and should not do, saying that
25 that is the only thing that the Court could establish.
1 The testimony of Witness P-009 is untenable because the Court did
2 not establish a comparison between the testimony of these two witnesses,
3 and that is the error that concerns the convincing quality of this
5 We are aware of the fact that it is not the duty of the Trial
6 Chamber to deal with each and every piece of evidence, but it is exactly
7 the standard from the appeal judgement in Kvocka, paragraph 23, that we
8 invoked in paragraph 76, confirms our position that that is the
9 obligation of the Court when the evidence is clearly relevant.
10 THE INTERPRETER: Interpreter's note: Could the speaker please
11 slow down. Could he please read slower. Thank you.
12 MR. LUKIC: [Interpretation] What evidence can be more relevant
13 than this kind of testimony, a witness who is there at the same time, as
14 we see that the Prosecutor accepts, and on the other hand he doesn't see
16 Speaking of the conclusion for the appeal decision in
17 Nata-Kira-Timana shows the importance of this assessment that was
18 established by the Court in that case but not here.
19 If we look at the transcript from Wednesday, page 190, the
20 Prosecutor claims that the Trial Chamber bore in mind these different
21 vantage points, and that cannot be found in the judgement, so how could
22 the OTP come to that conclusion?
23 The two sketches that were shown to you, namely, Exhibits 238 and
24 282, only confirm the thesis of the Defence on the inaccuracy of the
25 testimony of P-009. He had to pass by Dodaj and three other deserters
1 and two high-ranking officers of the JNA, whereas he testified that he
2 had not seen them. He states unequivocally that there and then, there
3 weren't any officers or a group of prisoners, including Dodaj. That is
4 what he decidedly said; transcript reference 6283.
5 The Prosecutor refers to the testimony of Berghofer and many
6 others about the appearance of Mr. Sljivancanin. Could this kind of face
7 that cannot be forgotten, as Berghofer said, be imperceptible in an area
8 that you saw on these sketches from the vantage point where Dodaj stood
9 for over one hour? In addition to the beatings that he observed, he also
10 testified that the colonels that he stood with showed him the fields in
11 front of the hangar - page reference 5537 - the ignition of the bulldozer
12 - on the same page - the arrival of officers in a jeep; 5539. He also
13 said that he saw the departure of the buses; page reference 5540. He
14 confirmed that he did not see any kind of digging of a hole in front of
15 the hangar or on the other side of the road; that is to say that he
16 observed a great deal of things, and he testified about that inter alia
17 in response to Prosecution questions.
18 The Prosecutor claims that the testimony of P-009 is consistent
19 with the sequence of events on that day, which should confirm the
20 credibility of his testimony. To be quite clear, we do not claim at all
21 that P-009 was not in these places that are mentioned. We claim that he
22 could not see Sljivancanin there because Sljivancanin at that time could
23 not have been at those places. The fact that one witness, an
24 eye-witness, testifies in that way in order to -- and we see that this
25 fits into the sequence of events that are established by the Court, can
1 certainly not be an argument that supports his credibility.
2 Look at the testimony of P-022, who is also in different places,
3 that the Court established, including the executions, but he was not
4 credible enough in order to establish the responsibility of Captain
6 P-009 was present and active at these places when the crimes were
7 committed. We are not saying that he was a participant in the commission
8 of crimes, but he claims that he did not see the crimes of beatings in
9 the hangar; transcript reference 6284. He had an interest in terms of
10 not telling the truth; Dodaj, no.
11 In relation to all other errors of the Trial Chamber that the
12 Defence indicated in the first ground of appeal, the OTP in their oral
13 response only repeated the findings of the Court. The OTP did not give
14 any specific answer to the paragraphs of the appeal. Instead of that,
15 they decided to quote the paragraphs of the judgement that are being
16 challenged. You can see that on transcript page 186-187.
17 Thank you, Your Honours. We have completed this part of our
18 submissions. I would kindly ask if Mr. Bourgon could deal with another
19 subject just for another five minutes, with the permission of the
20 Appeals Chamber.
21 JUDGE MERON: For five minutes, certainly, but please do not
22 exceed the time.
23 MR. BOURGON: Thank you very much, Mr. President. I will not --
24 I just wish at this time to briefly address Ground 5, which the
25 Prosecution commented upon in its response.
1 Mr. President, it was our submission, as a ground of appeal, that
2 it is reasonable to infer, on the basis of the totality of the evidence
3 on the record, that if Mr. Sljivancanin was at Ovcara on 20 November 1991
4 and left without taking action, he did so and that he had no -- he did
5 not know that by doing so he was assisting the commission of a crime.
6 I mention the first reason for this, and that was the actions
7 taken already in Ovcara which he must have seen, actions taken by both
8 the Chief of Staff of Operational Group South and the commander of 80
9 Motorised Brigade, who was -- who were present. But it is our submission
10 that the Trial Chamber should also have considered that Sljivancanin's
11 knowledge on that day and at that time, and his knowledge, what he knew,
12 is that as long as the prisoners of war were under the security and
13 authority of the JNA, any attempts by members of the TO to commit crimes
14 could be stopped and the situation placed under control. It happened
15 that same morning at the JNA barracks, even though it is our submission
16 that Sljivancanin was not there. Another example took place two days
17 earlier. Under the security of the JNA, a group of prisoners of war was
18 accommodated at Ovcara before being transferred to Sremska Mitrovica,
19 without any incident.
20 Moreover, the Trial Chamber found at paragraph 672 something that
21 is very relevant. The Trial Chamber concluded that since the prisoners
22 of war remained under the security and authority of the JNA at Ovcara,
23 Sljivancanin could reasonably have believed in the circumstances that the
24 TOs and paramilitaries would be unlikely to resort to killings. If he
25 did not see, as we say, the beatings, he could also reasonably believe
1 that the situation was under control.
2 Thank you very much, Mr. President. This concludes our
3 submissions in reply to the Prosecution response.
4 JUDGE MERON: Thank you, Mr. Bourgon.
5 Do any of my distinguished colleagues have questions? No. So we
6 will now turn to the Prosecution.
7 You have one hour, as you know.
8 MS. BRADY: Thank you.
9 JUDGE MERON: So you will be addressing the Court now, Ms. Brady?
10 MS. BRADY: I'm addressing the Court now, Your Honours.
11 I'd like to give, firstly, a brief outline of how we will be
12 addressing this morning the Prosecution's appeal.
13 As you know, we have four grounds of appeal; Ground 1, which
14 relates to the application of Article 5, crimes against humanity to this
15 case; Ground 2, relating to Mr. Sljivancanin's acquittal for murder; and
16 Grounds 3 and 4, which relate to the manifest inadequacy, in our
17 submission, of the sentences of 5 years and 20 years, respectively, given
18 to Mr. Sljivancanin and Mr. Mrksic.
19 Now, in light of the time, because we have one hour and we want
20 to use our time efficiently and appropriately, we won't this morning be
21 making submissions on sentence on Grounds 3 and 4, on Mr. Sljivancanin or
22 Mr. Mrksic's sentence. We rest entirely on our briefs for those two
23 appeals. What we will be making submissions on this morning are Ground
24 2, relating to the acquittal for murder, and Article 5. I anticipate
25 that the majority of this morning's first hour will relate to that
1 acquittal for murder - and this is Ground 2 - and I'll be making
2 submissions on behalf of the Prosecution. At the same time, Your
3 Honours, I will be answering both questions that Your Honours have posed
4 in the addendum relating to this ground of appeal; firstly, the question
5 about whether his duty continued and, secondly, whether he knew of or
6 learned of Mrksic's order to withdraw the JNA troops. After that,
7 Mr. Dalal, my co-counsel, will briefly answer Your Honour's question
8 concerning Article 5, and in particular its application to the facts of
9 this case.
10 So if I could begin, then, on my submissions on Ground 2 relating
11 to his acquittal for -- Mr. Sljivancanin's acquittal for aiding and
12 abetting murder.
13 Veselin Sljivancanin was convicted for aiding and abetting the
14 torture of some 200 prisoners of war held at Ovcara on the 20th of
15 November, 1991, and on the first day of this hearing, we demonstrated why
16 this conviction, his conviction for these crimes, must be upheld. But in
17 our submission, his criminal responsibility should not have ended there.
18 Sljivancanin should have been convicted not only for the torture endured
19 by the prisoners that fateful afternoon, but also for their murders later
20 that night, the murder of 194 people, 194 people whom he was duty-bound
21 to protect, and despite his ample powers and authority, he took no steps
22 to prevent their impending fate, and that is what our appeal is about.
23 In our submission, the only reasonable conclusions are the
24 following: Firstly, that Sljivancanin knew from the time he was at
25 Ovcara that without taking further action to protect the prisoners, the
1 violence that he saw being unleashed upon the prisoners by the Serb TOs
2 and paramilitaries was very likely to escalate to murder.
3 Second, once he returned to the command post at Negoslavci that
4 evening, his knowledge of murder escalated upon learning that the last
5 vestiges of this security, the remaining JNA, were to be withdrawn, and I
6 will be spending time on this in my submissions, and I'll develop this
7 further today, especially when I answer Your Honour's third question.
8 The third only reasonable conclusion: Sljivancanin was under a
9 duty that day to protect the prisoners, a duty that remained on him
10 throughout the course of the day and the night, and here, of course, I'm
11 talking about the period after 9.00 when they were murdered, and in this
12 regard I will be developing today in some detail this argument when I
13 answer Your Honour's second question.
14 Finally, by failing to take any steps to protect the prisoners
15 from harm that afternoon and evening, Sljivancanin substantially
16 contributed not only to their beatings and tortures, but also to their
17 murders later that night.
18 The Trial Chamber's reasons for acquitting Sljivancanin for the
19 murders were, in our submission, unreasonable. Very briefly, firstly, it
20 failed to find that he knew at the time of his visit to Ovcara that
21 killings would be committed because in their reasoning, then the
22 prisoners were then under JNA guard. This is its finding in relation to
23 mens rea at paragraph 673, and in this respect, it factually erred. And
24 having factually erred in this regard, the Trial Chamber then disregarded
25 the entirety of his culpable omissions in the afternoon, afternoon to
1 early evening period, that is, before the JNA withdrew, as being a
2 substantial contribution to their later murders.
3 The second way the Trial Chamber erred is that since the murders
4 occurred after the JNA soldiers withdrew from Ovcara, an event which they
5 found terminated Sljivancanin's delegated authority from Mrksic, the
6 Trial Chamber said it could not be -- it could not be said that he failed
7 to discharge any legal duty to the prisoners. This is their error in
8 relation to the actus reus
9 it legally erred.
10 Finally, Your Honours, the Trial Chamber simply failed to make
11 any findings regarding his state of knowledge from 8.00, 8.00 p.m., when
12 he returned to Negoslavci. Now, the relevant place it would have done
13 this would have been -- we would have seen it in the judgement in
14 paragraph 389, but there's no finding about whether he knew that they had
15 been ordered to withdraw the JNA -- excuse me, there's no finding that he
16 knew that the JNA had been ordered to withdraw, and this becomes relevant
17 to the Trial Chamber's error in relation to duty because we're asking
18 this Appeals Chamber to find that the Trial Chamber legally erred in
19 finding that the duty had expired. Then, having found that the duty
20 continued, having found the Trial Chamber committed legal error, they
21 should have found the duty continued, you should apply this correct legal
22 standard to the evidence in the trial record and find that he did know,
23 at least from that point onwards at 8.00 p.m., that the prisoners would
24 be murdered. And, indeed, as I'll show you today, it's the only
25 reasonable conclusion.
1 I'll turn first to the Trial Chamber's error regarding the
2 mens rea. We call this in our brief "the knowledge error." Picture the
3 scene that Sljivancanin must have witnessed, that the Trial Chamber found
4 Sljivancanin must have witnessed at Ovcara that afternoon. Prisoners,
5 many of whom were already sick or wounded, were being unloaded from the
6 buses in groups, and then after being questioned and stripped of their
7 valuables and identification, they were then forced to pass between two
8 rows of TOs and paramilitaries with some 10 to 15 people on each side,
9 all the while being beaten by the TOs and the paramilitaries using
10 sticks, rifles, poles, chains, and other such implements. As an isolated
11 event, this vicious scene would have been very alarming for even a casual
12 observer, but the point is this was not an isolated event, and
13 Sljivancanin was not a casual bystander.
14 And I think first it's important to look at who Sljivancanin was.
15 At the time, he was a major in what could be regarded as the most elite
16 unit of the JNA, itself a highly-efficient and disciplined army. Mrksic
17 had put him in charge that day of evacuating and transferring the
18 prisoners from the hospital, including securing their safety and
19 security, and he'd been authorised to use as many military police he
20 needed to accomplish this mission.
21 And now consider, if you will, Your Honours, what he already knew
22 when he was witnessing this violent scene unfold in front of him at
23 Ovcara. As the Trial Chamber found, he already knew of the violent
24 behaviour and propensity of the TOs, but the Trial Chamber also found
25 that he could have reasonably believed that they weren't in danger of
1 being killed because at that stage they were under JNA guard, and it's
2 this finding in paragraph 672 that was wholly unreasonable when you
3 consider this: He knew in the preceding months that Serb TOs and
4 paramilitaries had been increasingly antagonistic towards persons they
5 perceived as Croat defenders. He said he'd read some of these reports of
6 sadistic abuse and killings. He knew that only the night before at
7 Velepromet, and despite, despite some regular JNA soldiers, that is, in
8 the form of the Guards Motorised Brigade, military police guarding
9 prisoners, Serb TOs and paramilitaries had not only been mistreated but
10 killed Croat victims held there.
11 What else did he know at that point in time while he's watching
12 this scene unfold? He knew that that very day, in fact, just a few hours
13 earlier, regular JNA soldiers had been present at the JNA barracks, these
14 military in the form of the military police of the Guards Motorised
15 Brigade, and yet still the TOs and the paramilitaries had been able to
16 harass and violently beat prisoners from this group that were being held
17 at the barracks en route to Ovcara. Most significantly, as Sljivancanin
18 himself saw, again, the TOs and the paramilitaries have turned up at
19 Ovcara, and despite the regular -- the presence of regular JNA soldiers,
20 the TOs and the paramilitaries were able to savagely beat the prisoners
21 as they were being unloaded, and, indeed, I note paragraph 235 of the
22 judgement, which notes that the evidence is that some may even have
23 joined in.
24 I also note, in that paragraph, that there are findings that the
25 JNA military police, who had provided security on the bus, stayed on the
1 bus while this savage beating was going on, and the 15 to 20 JNA soldiers
2 who were there apparently to secure the area, the military police of the
3 80th Motorised Brigade, failed to stop the violence.
4 Now, we acknowledge that at times, as my learned colleague has
5 pointed out, at times the regular JNA had been able to maintain and
6 restore some degree of order and security; for example, eventually at
7 Velepromet when they loaded -- the night before when they loaded the
8 prisoners onto the buses. Likewise, eventually at Ovcara -- at the JNA
9 barracks, even for short periods at Ovcara. But at best, the security
10 situation can be described and would have appeared to Sljivancanin as
11 highly fragile, highly volatile, despite some briefs -- some brief lulls
12 in the violence. The totality of the evidence demonstrates that on the
13 whole, JNA military police and other regular JNA units had been largely
14 ineffective in the face of Serb TO and paramilitary determination to seek
15 revenge and harm Croat prisoners, and this was something he well knew.
16 So by the time he was at Ovcara, Sljivancanin knew not only that
17 Serb TOs and paramilitaries were capable of killing - that's the Trial
18 Chamber finding at paragraph 672 - most critically and contrary - this is
19 where we disagree with the Trial Chamber's findings - he knew that the
20 mere presence of a relatively small group of JNA soldiers without proper
21 instruction or leadership offered but a veneer, a veneer of protection
22 for the prisoners, and that if left unchecked, if no action was taken to
23 get the situation firmly under control, not only would beatings and
24 tortures continue, but there was a real likelihood that the violence
25 would escalate just as it had done at Velepromet the night before and
1 that the TOs and the paramilitaries would succeed in fully satisfying
2 their revenge and kill the prisoners, whether or not some JNA soldiers
3 were present.
4 Now, so far, Your Honours, I've been speaking about
5 Sljivancanin's state of knowledge in the afternoon, and that's been
6 important to develop because it sets the scene for what I'm about to say
7 on his knowledge later that evening.
8 Now, what about his knowledge when he returned to Negoslavci in
9 the evening? And this brings me now to answer Your Honour's third
10 question that you've asked: When did he learn about Mrksic's order to
11 withdraw the JNA from Ovcara? The only reasonable inference that can be
12 drawn from the totality of the evidence is that when Veselin Sljivancanin
13 returned to the command post at Negoslavci that evening, he must have
14 learned of Mrksic's order to withdraw the remaining JNA from Ovcara. It
15 is simply inconceivable, based on his assigned role, based on JNA
16 military doctrine, and based on his specific discussions that he had with
17 the prisoners -- sorry, excuse me, specific discussions that he had about
18 the prisoners with his two subordinates, Vukasinovic and Vukosavljevic
19 and his commander Mrksic, upon his return, it is inconceivable that he
20 was not so informed.
21 Let me take you through that evidence, and I want to start, if I
22 may, with Sljivancanin's own testimony about the conversations -- the
23 discussions he had upon his return to Negoslavci, and I start first with
24 Vukasinovic, his discussion with Vukasinovic, and what he says
25 transpired, and he gives this evidence at transcript page 13663. And
1 according to Sljivancanin, Vukasinovic told him that the prisoners had
2 been taken to Ovcara that day and that he, Vukasinovic, had observed
3 violent behaviour by the TOs and the paramilitaries to the prisoners, but
4 he'd managed to regain order and that the prisoners went into a hangar
5 secured by the military police of the 80th Motorised Brigade, and
6 Sljivancanin said that at this point, he was surprised to learn that
7 they'd been taken to Ovcara.
8 Now, of course, we know this is something the Trial Chamber did
9 not believe him on, this surprise that the route had changed, because
10 they found he was at Ovcara in the afternoon and that, in fact, he had
11 been involved in that transmittal of that order for them to go to Ovcara.
12 Now, the second conversation he has when he gets back to
13 Negoslavci is with his subordinate Borisavljevic, and according to
14 Sljivancanin, Borisavljevic told him that there had been a meeting of the
15 so-called SAO government, and at this meeting, and I quote from
16 Sljivancanin's testimony at transcript page 13664, at this meeting:
17 "The decision had been taken for the prisoners who had been taken
18 from the hospital to be handed over to the government so that they could
19 be exchanged for captured Serbs."
20 So having had these two conversations, what next does
21 Sljivancanin do? Well, he says he went to report to Mrksic, and he was
22 asked, Why did he go at this point to report to Mrksic, and he gives his
23 answer at transcript page 13986. These are his reasons:
24 "You asked me why I went to see Mrksic, and that's precisely what
25 I am trying to explain, because of what he" - Vukasinovic - "told me,
1 when he told me about those people going to Ovcara and not Mitnica, and
2 also because of what Vujic had told Borisavljevic, that someone from
3 higher up had given orders for those people to be taken over or
4 surrendered to the government, so I went to see the commander to see
5 whether that was in fact true."
6 Now, just to take it in chronological order, what did
7 Sljivancanin say Mrksic told him? Now, we have to recall, by this stage,
8 as the Trial Chamber found, Mrksic had already -- on the Trial Chamber's
9 finding, Mrksic had already given his order for the remaining JNA, in the
10 form of the military police of the 80th Motorised Brigade, to leave
11 Ovcara, and on the Trial Chamber's findings, he had conveyed that order
12 through Sljivancanin's own deputy, Karanfilov.
13 So with that in mind, what does Sljivancanin say that Mrksic told
14 him? And again, I'm quoting from Sljivancanin's testimony, transcript
15 page 13665. This is what he says that Mrksic told him:
16 "We have completed our missions. The Guards Brigade is pulling
17 out to get some rest. All the commitments in this area will be taken
18 over by the 80th Motorised Brigade and the Vukovar TO --"
19 THE INTERPRETER: Thank you for slowing down when reading.
20 MS. BRADY: I apologise to the interpreters:
21 "Today, a government meeting was held at Velepromet. They will
22 now start setting up civilian authorities. They also took charge of a
23 group of suspects from the hospital who had been brought to the barracks
24 in order to later be exchanged for captured Serbs."
25 Now, having had all this information come to him, what did
1 Sljivancanin think? Well, when asked in cross-examination, he said -- he
2 concluded that -- he concluded that the --
3 JUDGE MERON: Excuse me.
4 [Appeals Chamber confers]
5 JUDGE MERON: Please continue.
6 MS. BRADY: Yes, thank you.
7 So having heard all this information, what did Sljivancanin
8 think? Well, he concluded that the, quote, "security would now be taken
9 over by a fresh, well-rested unit. They were in charge of the area, and
10 there could be no further riots or anything there."
11 So what did Sljivancanin do at this point? He didn't pursue the
12 matter about the prisoners any more with his commander, Mrksic. He
13 didn't ask any follow-up questions about their fate or their destination.
14 Instead, he went to call General Vasiljevic, his boss in the SSNO, about
15 an unrelated matter concerning some documents, and then, after that, he
16 went and watched some television that evening because he heard there was
17 going to be some footage about Vukovar that day on the TV and that there
18 might be some footage of him on it.
19 So, Your Honours, imagine this: He'd specifically gone to see
20 Mrksic to voice concern about the prisoners having been taken to Ovcara
21 and to brief him on reports of violence and to see if it was true that
22 they were going to be handed over to this so-called government, a
23 government that he -- a government that he had difficulties seeing was a
24 legitimate government. Mrksic then confirms, indeed, that this hand-over
25 to the government was -- had taken place or was going to take place. In
1 Sljivancanin's mind, this could only have meant that the situation for
2 the prisoners was getting even more precarious. He asked no follow-up
3 questions about the prisoners, and he instead, in his own words,
4 concludes that, quote "people were safe." That's at transcript 13982.
5 Apparently, he says on the basis of being told, that the 80th Motorised
6 Brigade was there in the area.
7 Sljivancanin's testimony that he believed that the military
8 police of the 80th Motorised Brigade was looking after this situation is
9 clearly a lie, just like his testimony that he did not go to Ovcara that
10 day. This is a further example of lies that he has told in this case to
11 distance himself and to down-play his knowledge of the events that day.
12 It is simply inconceivable that Mrksic, in the course of a specific
13 conversation with Sljivancanin about the prisoners, in which he confirmed
14 that the prisoners now had custody -- were now in the custody of the
15 government, would not only omit telling Sljivancanin this highly relevant
16 piece of information, that he had ordered the JNA to withdraw, but would
17 actively mislead Sljivancanin into thinking that the JNA, the 80th, would
18 remain in Ovcara when he, in fact, had already ordered their removal.
19 And when Mrksic himself already by this stage, on the Trial Chamber's
20 findings, had already sternly questioned Vojnovic when he came to him
21 that evening on why his units of the 80th were still there, it is equally
22 inconceivable that Sljivancanin, who had been specifically entrusted by
23 Mrksic with the transfer and security of this group of prisoners - and
24 that's a Trial Chamber finding - and even though he knew that the TOs
25 were beating and torturing the prisoners that day - another Trial Chamber
1 finding - and even though he was aware of an order from the 1st MD,
2 military district, on the 19th of November, 1991, forbidding the exchange
3 of prisoners - that's Exhibit 442 - he did no follow-up with Mrksic about
4 the prisoners, even though it was an inherent part of his duty that day.
5 Sljivancanin's account simply defies military doctrine. He was
6 in command of the evacuation. As such, he should have known at all times
7 what his units were doing while they were carrying out the evacuation,
8 including the military police, and I --
9 JUDGE MERON: Ms. Brady, supposing that we separate for a moment
10 the question of Sljivancanin's reason to believe that prisoners would be
11 killed prior to his learning of the order to withdraw, now you argue
12 regarding -- you argued and answered our question regarding when did
13 Sljivancanin learn of Mrksic's order to withdraw. Would you clarify for
14 us, what does from this conclusion regarding -- what would be the
15 conclusion from that argument you made regarding the time when
16 Sljivancanin learned of the order to withdraw concerning the mens rea
17 component of aiding and abetting, so a view related to mens rea, possibly
18 mens rea of Sljivancanin.
19 And, secondly, I'm still looking forward to you specific argument
20 regarding Sljivancanin's ongoing legal duties despite, despite the order
21 of Mrksic to withdraw the JNA forces.
22 MS. BRADY: Your Honours, yes, I will deal with both. I'll
23 turn to directly answering your question about how this then fulfills,
24 assuming he knows, on the basis that he knows that the order, how it
25 fulfils the mens rea, and rest assured, Your Honours, I will be coming in
1 some detail to the question of the continuation of his duty in just a
2 moment. I have to do it in order, and we chose to do knowledge first and
3 then duty, so that's our plan this morning.
4 Our submission is quite simple. Once he learnt that the JNA had
5 been ordered to withdraw, he must have then known that the prisoners'
6 murders were all but a certainty, and this is because he then knew that
7 their last hope, the last vestige of their protection - insufficient as
8 we say it was, but it was something - that last vestige of protection was
9 to be removed, leaving the prisoners completely exposed to the
10 unrestrained violence of their revenge-seeking Serb enemies, and that's
11 how the mens rea is fulfilled upon him learning of this order, and we say
12 in the afternoon, he knew of the likelihood of murder. By the evening,
13 when he learns of the order to withdraw, the knowledge must be at the
14 level of certainty by that stage.
15 Those, Your Honours, are our submissions on why the Trial
16 Chamber's findings about his mens rea were unreasonable and should be
17 overturned. I'd like to now get to the second part of the equation, as
18 it is, on why the Trial Chamber acquitted him, and that is that they
19 found that his duty to protect the prisoners had expired by the time they
20 were killed, and so he could not be criminally liable for failing to
21 prevent their deaths.
22 Now, we've highlighted -- we've developed this argument quite in
23 full in our briefs, and in our submission, there are two aspects of this
24 actus reus
25 Firstly, this finding completely disregards Sljivancanin's earlier
1 inactions, what he did not do earlier in the day that afternoon and
2 evening, and here I'm talking about the time before the JNA withdrew. It
3 simply failed to consider those as substantially contributing to the
4 murders, and we've labelled that in our brief, for clarity's sake - I
5 hope it is clear - the contribution error.
6 The second error which Your Honour Judge Meron had expressed
7 concern about in these proceedings is concerning the duty that he had,
8 and in our submission, even if his special delegated authority for Mrksic
9 terminated upon the JNA withdrawal, which the Trial Chamber -- happens
10 about 9.00 p.m.
11 continued even after the JNA withdrew, and upon learning of the
12 withdrawal order, meaning the prisoners were now in the sole custody of
13 the TOs, he still did not -- he still did nothing to protect them, and
14 this failure to discharge his legal duty substantially contributed to
15 their murders.
16 Now, again, if I may take this -- I think it's easier for the
17 flow of things if I take this somewhat chronologically. I'd like to take
18 the second issue about the duty in a moment, when I will also answer
19 Your Honour Judge Meron's -- Your Honour's question number 2 which you've
20 posed to the parties. I would like to say before I do that a few brief
21 words, however, on the contribution error, as we have called it, because
22 it's apparent when you look at paragraph 673 that the Trial Chamber only
23 examined whether he did, in fact, breach his legal duty and thereby
24 contributed to the murders at the point in time -- at that moment onwards
25 from when the murders occurred, and in our submission, this approach was
1 both artificial and wrong because his contribution to the murders began -
2 and I'm talking about his culpable omissions - his contributions began
3 from that time he was at Ovcara and continued up until and then
4 throughout the time that they were killed after 9. The Trial Chamber
5 disregards that it was his failure to act to discharge his legal duty to
6 the prisoners throughout the afternoon and early evening, the omissions
7 before the JNA withdrew, that did contribute substantially to the later
8 murders. And this is why his complete inaction from about 3.00 p.m.
9 2.30 or 3.00 p.m., on the Trial Chamber's findings, when he was there,
10 for the next five or six hours, not only meant that beatings and tortures
11 continued unabated; most importantly, it meant that an environment of
12 criminality and impunity developed and escalated at Ovcara, in effect
13 setting the stage for the TOs and the paramilitaries to take their
14 brutality to its ultimate conclusion. And Your Honours will recall that
15 throughout that afternoon, he had full powers and authority for Mrksic,
16 and he could have done a number of things to prevent the situation from
17 getting out of control. I won't repeat them. They're in our brief. I
18 won't repeat them in detail, but just to state: Look at all the things
19 he could have done. He could have taken the prisoners to a place of
20 safety. He could have given proper direction to the military police
21 present. He could have greatly increased the numbers of military police.
22 He could have removed once and for all the Serb TOs and paramilitaries.
23 But not once did he take any of those basic steps. This inaction meant
24 that over the course of the afternoon, Ovcara turned into a prelude to a
25 killing field.
1 Now, we are aware the Trial Chamber found no evidence that the
2 perpetrators perceived Sljivancanin's presence as some kind of tacit
3 approval or encouragement, but our point is different; his abject failure
4 to meet his duties to the prisoners that afternoon, in the afternoon,
5 meant that Ovcara became an environment increasingly conducive to
6 unchecked violence. Let's not forget that it was during the afternoon
7 that the beatings and the tortures continued, that the hole for the mass
8 grave was dug, that the numbers of TO went from 30 to 300. It was just a
9 matter of time before that violence spiraled so out of control that
10 killings became the reality, and that's exactly what happened. So that's
11 the first error on the actus reus
12 considering his inactions in the afternoon.
13 Finally, Your Honours, the Trial Chamber made a second error in
14 paragraph 673; put simply, that his duty to the prisoners expired when
15 the JNA withdrew by 9.00, and he had no further duty to them after that
16 point in time during which they were killed, and in this regard, in this
17 finding, the Trial Chamber legally erred.
18 And finally, Your Honours, I would like to answer your question,
19 number 2 in the addendum. You've asked: Should the Appeals Chamber find
20 that Sljivancanin was under a duty to protect the prisoners of war,
21 pursuant to international humanitarian law, did this duty continue, and
22 on what basis?
23 In our submission, as the person entrusted by Mrksic with the
24 custody and control of the prisoners and with their -- with
25 responsibility for their safety and security, Sljivancanin was obliged
1 under the Laws and Customs of War to protect the prisoners from harm, and
2 this duty to protect the prisoners continued even beyond Mrksic's order
3 to withdraw the JNA. That's our basic proposition, which I'll develop.
4 Mr. Bourgon this morning pointed to a finding of the Trial
5 Chamber - I think it was paragraph 391, if I'm not mistaken - essentially
6 to the effect that his entrusted duty only went so far as
7 Sremska Mitrovica. Your Honours, this is a way-too-narrow reading of the
8 Trial Chamber's findings, and I point you to paragraph 4667 to 668. It
9 is clear from those findings that the entrusted responsibility was not
10 and was not read as narrowly by the Trial Chamber, that he was to be
11 responsible, in fact, for the transport, including the security and
12 safety of the prisoners to their destination, and that's what
13 paragraph 400 says, and that's the Trial Chamber's finding.
14 And I think Your Honour's -- Judge Meron's question about
15 flexibility and a common-sense interpretation must apply here. It
16 couldn't be so fixed that it is simply to Destination A, and if
17 Destination A changes to B, that it could not also include Destination B.
18 And that's clearly the Trial Chamber's finding, that Destination B, i.e.,
19 Ovcara, was encompassed within the scope of his entrusted authority.
20 There can be no real question that, as the Trial Chamber found,
21 Sljivancanin was under a duty earlier that day to protect the prisoners
22 of war. If I -- I understand that the Defence does not take issue with
23 the basic proposition that there is a duty to protect prisoners who are
24 in your custody and control. He made that submission more clear this
1 We -- on the first day of this hearing, we did not say that
2 Sljivancanin did not have a duty. In fact, our position is he did have a
3 duty. We acknowledge that it may not have fallen within the normal
4 security organ function to be the repository of being the person who has
5 the control and custody of prisoners. However, in this case he was
6 entrusted specifically by Mrksic with this job, as it were. He had this
7 specifically entrusted on him.
8 Now, to clarify where the duty stems from, the duty, as has been
9 discussed here, stems from Article 13 of the 3rd Geneva Convention, the
10 duty to humanely treat prisoners of war at all times and to protect them
11 from violence and intimidation, and Article 12 of the 3rd Geneva
12 Convention, the duty not to transfer the prisoners of war to a lawless,
13 hostile, and violent party. And we note, Your Honours, that these duties
14 were reflected in the JNA regulations, Exhibit 396, in particular
15 regulation 202 and 210, as well as other applicable JNA guide-lines. In
16 particular, I point Your Honours to Exhibit 856, paragraphs 255 to 261,
17 and Exhibit 581.
18 The Blaskic appeals judgement at paragraph 663 as well as the
19 Oric trial judgement at paragraph 304 have recognised that a failure to
20 discharge such a duty may incur criminal responsibility under
21 Article 7(1), and this indeed accords with the World War II cases that
22 we've heard something of on the first day, where accused were held
23 criminally liable for failing to protect prisoners in their custody and
24 control, including when they permitted prisoners to fall into the hands
25 of others -- other people who harmed them.
1 The real issue in this case is what became of that duty once his
2 specific delegation for the prisoners' custody and control terminated
3 upon the withdrawal of the JNA from Ovcara. In our submission, this duty
4 continued still based on the original sources of his duty; in other
5 words, as a residue of his duties under Articles 12 and 13 of the 3rd
6 Geneva Convention, and I note in this connection that the Defence
7 concedes, in its response brief at paragraph 254, that Article 12 of the
8 3rd Geneva Convention regarding transfer of prisoners may be relevant by
9 analogy for the transfer of prisoners of war between military authorities
10 within the same armed forces. So I won't develop that particular point
11 right now. Of course, if Your Honours have questions about that, I could
12 try and assist you on that.
13 But our basic proposition, our basic proposition is that a
14 military officer in whom control and custody of prisoners of war is
15 invested must ensure a safe transition for those prisoners, a hand-over
16 to safe custody, even if he is not physically responsible for the
17 transfer. When he learns that they will no longer be humanely treated
18 and that their lives were endangered, he remains under duty to take
19 reasonable steps that are within his power to correct the situation, and
20 allow me, if I may, to develop this a little bit further and to relate it
21 to the present facts.
22 Firstly, Your Honours, we need to consider the nature and scope
23 of his duties under Articles 12 and 13. Now, as I've mentioned, during
24 the afternoon, when Sljivancanin was acting pursuant to his delegated
25 authority over the prisoners, he was under a duty in Article 13 to
1 humanely treat the prisoners of war and ensure they were protected from
2 violence. This is a fundamental guarantee of the Geneva Conventions.
3 In addition, Article 12 required that he be satisfied of the
4 ability and willingness of any transferee party to apply the Geneva
5 Conventions to the prisoners, and based on what he saw and knew about the
6 TOs, a person in Sljivancanin's position could not have been so
7 satisfied, and, again, I am talking about the afternoon or the earlier
8 part of the day.
9 Now, we tie this in. After the prisoners were transferred, that
10 is, after the JNA withdrew by 9.00 p.m., and thereby leaving them in the
11 sole custody of the TOs, these obligations that he had, his obligations
12 under Articles 12 and 13, do not automatically expire. As the person
13 having had custody and control of the prisoners, he continued to have
14 residual duties to them. The fundamental starting point is this: It is
15 a fundamental rule of customary international law that prisoners must at
16 all times be treated humanely and protected from murder and other forms
17 of violence. This is such an axiomatic rule that I hardly need to quote
18 authority on it, but if you look at Rules 87, 89, and 90 of the ICRC,
19 Customary International Law Rules, it confirms this point that I have
20 just made.
21 It is equally clear from the Geneva Conventions and their
22 interpretation in the commentary to those conventions that there cannot
23 be a gap in that protection for prisoners of war and other protected
24 persons, and as the commentary to Article 45 of the 4th Geneva Convention
25 makes clear, when dealing with a very similar provision related to
1 protected persons - we realise that the 4th Geneva Convention applies to
2 civilians, but it's in very similar terms to Article 12 of the 3rd Geneva
3 Convention - and I quote from the commentary to that on page 268:
4 "The power which has transferred the protected persons must not,
5 however, cease to take an interest in their fate. Although they are no
6 longer 'in its hands,' it remains responsible for them insofar as the
7 receiving power fails to fulfill its obligations under the Convention in
8 any important respect, provided that it is notified of such failure by
9 the protecting power."
10 In other words, our submission is that pursuant to the duty under
11 Article 12, the transferor bears a contingent responsibility for the
12 prisoners of war which will be triggered upon learning that the
13 transferee is failing to fulfill its obligations in any important
14 respect. Once the transferor is notified, it's then obliged to take
15 effective measures to correct the situation, or if these measures prove
16 ineffective, it must request the return of the prisoners. This is in the
17 commentary at page 138 to 139.
18 JUDGE MERON: Ms. Brady, you are arguing this is -- if I
19 understand you correctly, that this is a situation where there is a
20 conflict between the obligations resulting from the 3rd Geneva Convention
21 and the order of Mrksic to withdraw. So what in this situation is the
22 scope of obligations of Sljivancanin?
23 MS. BRADY: I will answer your question immediately, Your Honour.
24 In our submission, a member of the military who is in charge of
25 protecting prisoners of war remains under a duty to protect them when he
1 knows that they would otherwise not be protected, and in this case,
2 bringing it back to the facts of this case, it's clear that this
3 contingency was satisfied. Sljivancanin knew that the prisoners would
4 not be humanely treated in accordance with Article 13. Indeed, he knew
5 that the prisoners had been beaten and tortured by the TOs all afternoon.
6 He knows now that their lives are in serious danger if left with this
8 At 8.00 p.m.
9 were leaving, so as Your Honour has said, there is this conflict now
10 between the duties under the 3rd Geneva Convention and this order that he
11 has heard about that Mrksic gave them to leave to Ovcara, and upon
12 learning that, he must have known that this condemned the prisoners to
13 almost certain death, and this is enough, that we say, that should have
14 engaged his responsibility to take effective measures, and I note,
15 Your Honour, that even Sljivancanin himself testified that had he known
16 of the danger the prisoners were to face, he could and should have acted
17 to protect them. That's at transcript page 13751 to 13759.
18 And just to answer the second part of Your Honour's question, and
19 this relates, in fact, to what effective measures he should have taken at
20 this stage, now we acknowledge that what measures, what powers may have
21 been available to him, may have altered, may have changed somewhat, given
22 that he was now no longer -- at that moment that the order was given, he
23 was now no longer acting under Mrksic's specific delegated authority with
24 all of its additional powers and authorities that he was given. However,
25 Your Honours, at least, at the very least, he should have reported
1 through his chain of command -- let's not forgot he's got his parallel
2 reporting structure up to the SSNO. He should have reported the real
3 likelihood that murder would occur if the JNA were to withdraw and the
4 prisoners left in the sole custody of this revengeful group, and yet he
5 took no steps. In that critical hour before the executions began and
6 then throughout that night, he could have done a number of things to
7 reverse their fate. I've already mentioned that he could have reported
8 to General Vasiljevic in the SSNO, and let's not forget, as an addition
9 to that, that detecting and reporting crime was an inherent part of his
10 duties as a security organ. Even he admitted that at transcript 13742,
11 and Exhibit 107 also suggests this. But he didn't even mention it to
12 Vasiljevic. He could have persuaded Mrksic not to withdraw, and again,
13 Your Honours, I point you to JNA regulations paragraph 21, which in fact
14 is a very far-reaching provision of the JNA regulations imposing personal
15 liability on an officer for violations of the laws of war if he knew or
16 could have known not only that units subordinate to him were committing
17 crimes or about to do so, but that other units or individuals were
18 planning the commission of such violations, and if there was still time,
19 it was still possible to prevent their commission.
20 But what did he do? Well, Your Honour used the example of the
21 New York
22 Well, it's not much different here. He went to watch TV.
23 Endorsing the Trial Chamber --
24 JUDGE MERON: Just to he remind you, you have about ten minutes.
25 MS. BRADY: Thank you, Your Honour. I'm obliged.
1 Endorsing the Trial Chamber's rigid approach would leave a
2 significant gap in protection for prisoners of war and is inconsistent
3 with the tenor of the protections in Articles 12 and 13 of the 3rd Geneva
4 Conventions. It would subvert the purpose of international humanitarian
5 law if this withdrawal of authority acted like some kind of guillotine to
6 cut off Sljivancanin's duties to the prisoners, and in this case, the
7 injustice of the Trial Chamber's rigid approach is evident. The very act
8 which condemned the prisoners to their ultimate fate, the withdrawal of
9 the JNA, was also the act absolving him of criminal liability. The
10 guarantee of humane treatment for prisoners of war would be rendered
11 nugatory if this finding were allowed to stand.
12 In conclusion, Your Honours, the only reasonable conclusion is
13 that Sljivancanin had a continuing duty to the prisoners throughout that
14 day and night. He could have taken a number of steps in the afternoon
15 before the JNA withdrew, but he did not. Again, in the evening, after he
16 learned of the withdrawal, he could have done a number of things, but he
17 did not. His complete abdication of duty throughout that day and night
18 substantially contributed to the murders, and he was well aware of this.
19 We ask Your Honours to reverse the Trial Chamber's findings and
20 to convict Sljivancanin for aiding and abetting the murders of 194
21 prisoners at Ovcara, and we submit that the gravity of this crime demands
22 that a sentence of no less than 30 years be imposed.
23 Those complete my submissions. If Your Honours have any further
24 questions, I'd be happy to assist.
25 JUDGE MERON: I see there are no questions.
1 MS. BRADY: Thank you, Your Honours.
2 I note the time. I believe we have about five minutes left.
3 Mr. Marwan Dalal will now briefly set out the Prosecution's position on
4 Article 5 and answer Your Honour's question in that regard.
5 Thank you.
6 JUDGE MERON: Mr. Dalal, please start.
7 MR. DALAL: Good morning, Your Honours. As Ms. Brady has just
8 mentioned, I will briefly state the position of the Prosecution with
9 regard to our first ground of appeal relating to entering convictions for
10 crimes against humanity against the accused.
11 Two issues I will mention. First, the issue of the status of the
12 individual victims of Article 5, underlying crimes. The Trial Chamber
13 did not enter a conviction for crimes against humanity against the
14 accused because it found that the victims -- the individual victims in
15 this case did not qualify as civilians, and this was at paragraphs 463
16 and 481 of the trial judgement.
17 The Prosecution submits that this issue has been resolved by the
18 Martic appeal judgement. The Appeal Chamber in Martic has provided a
19 detailed discussion of the law and concluded that also hors de combat
20 qualify as victims of crimes against humanity, provided, of course, all
21 other conditions of Article 5 are met, and this is at paragraphs 303 to
22 314 of the Martic appeal judgement.
23 Second, in relation to Your Honour's question or invitation,
24 you've invited the parties to discuss the evidence on the trial record
25 related to; (a), the requirement of a widespread and systematic attack
1 against a civilian population, especially in relation to the events in
2 Vukovar and, (b), the nexus between the acts of the accused and such an
4 With regard to the widespread and systematic attack portion of
5 your invitation, we refer Your Honours to paragraphs 465 until 472 of the
6 trial judgement. At paragraph 472, the Chamber concluded that:
7 "At the time relevant to the indictment, a widespread and
8 systematic attack by the JNA and other Serb forces directed against the
9 Croat and other non-Serb civilian population in Vukovar and its
10 surrounding indeed took place."
11 We also refer you respectfully to paragraphs 17 to 59 of the
12 trial judgement.
13 With regard to the nexus requirement between the acts of the
14 accused and the widespread and systematic attack, it is also satisfied,
15 in our submission. Both accused were aware of the attack, as they took
16 part in it, starting from October 1991. This is at paragraph 465 of the
17 trial judgement.
18 Objectively, the crimes were part of the attack. The same crimes
19 were committed, also, against civilians by the same group of
20 perpetrators, TO and Serb volunteers, as part of the attack; see, for
21 example, paragraph 47 and Exhibits 312 and 636. The punishment theme is
22 common to the perpetrated crimes and to the widespread and the systematic
23 attack against the civilian population; paragraphs 471, 532, 535, and
25 In addition, both Sljivancanin and Mrksic were aware of the
1 violent and lawless conduct of the TO and volunteers which was directed
2 against civilians and prisoners of war during the attack against Vukovar
3 and its surrounding. This conduct included the killing and brutal
4 treatment of civilians and prisoners of war, as well as looting and other
5 violent and lawless conduct. For Sljivancanin's awareness, see
6 paragraph 664 of the trial judgement. For Mrksic's awareness, see
7 paragraph 621 and reports received by him as commander of the GMTBR
8 within the 1st Military District of the JNA, Exhibits 718, 823, 636, 819,
9 415, and 847.
10 JUDGE MERON: Mr. Dalal, were any crimes against civilians - I
11 emphasise "civilians" - committed at Ovcara?
12 MR. DALAL: In the Vukovar area?
13 JUDGE MERON: No, I did not ask about Vukovar. I ask about
15 MR. DALAL: Ovcara?
16 JUDGE MERON: Any crimes against civilians specifically in
18 [Prosecution counsel confer]
19 MR. DALAL: Your Honour, to answer specifically your question, a
20 group of victims - and the Trial Chamber left this open - could well have
21 been, indeed, civilians. They were not necessarily -- did not
22 participate in the fighting -- with the Croatian fighting formation in
23 the fighting that took place in Vukovar. So, indeed, at least on this
24 issue, we can say that crimes against civilians were committed in Ovcara.
25 JUDGE MERON: Well, the Trial Court was not very clear on that,
1 but let me restate the question. Were any crimes committed at Ovcara
2 aimed at civilians? Do you have any support for that in the trial
4 MR. DALAL: Not necessarily, Your Honour, but our submission is
5 that it is not necessary in order to establish the requirement that the
6 crimes were part of the widespread and systematic attack against the
7 civilian population, and --
8 JUDGE MERON: You have that with regard to Vukovar, but it has
9 not been quite demonstrated that because of geographical proximity,
10 without more, this is true with regard to Ovcara, and Ovcara, the record
11 would indicate that the crimes were committed, well, almost exclusively,
12 if not exclusively, against POWs.
13 MR. DALAL: But the location is very close to Vukovar, and
14 it's --
15 JUDGE MERON: No, I am aware of that.
16 MR. DALAL: The law does not require that the attack and the
17 crimes be in the same place, as long as we can establish a connection
18 between them, and the connection could be established by the location, by
19 the perpetrators, by the theme that was underlying against the attack and
20 the crimes committed. So the fact that even if we assume for our
21 purposes that at Ovcara crimes against -- attacks against civilians did
22 not intentionally took place, it does it not mean that the crimes in
23 question were not part of the widespread and systematic attack, and
24 I think the law of the Tribunal established that -- establishes that.
25 JUDGE MERON: So, in fact, you are arguing on the basis of
1 proximity alone?
2 MR. DALAL: No, proximity and perpetrators. The TO and
3 volunteers participated in the attack and committed the crimes.
4 JUDGE MERON: Here we have an attack in Vukovar, which is assumed
5 an attack against the civilian population. A group of POWs, and it would
6 appear only POWs, is transported to Ovcara. There are additional crimes
7 in Ovcara. I would like to see more of a -- sort of a demonstration that
8 this is the same attack --
9 MR. DALAL: Yes --
10 JUDGE MERON: -- against the civilian population.
11 MR. DALAL: The purpose of my short presentation is for time
12 constraints. In my reply, I can read from exhibits that show that there
13 is a pattern by the same perpetrators during the attack, attacking both
14 civilians and people who were in custody of JNA. I can read from the
16 JUDGE MERON: Okay. I will not pursue that anymore because there
17 is no time.
18 Have you completed your presentation?
19 MR. DALAL: For the purposes of this short presentation, yes,
20 Your Honour.
21 JUDGE MERON: Thank you.
22 We will now have a pause, I believe, of 15 minutes, so 5 to
23 11.00, please.
24 --- Recess taken at 10.37 a.m.
25 --- On resuming at 10.55 a.m.
1 JUDGE MERON: Please be seated.
2 Okay, we will now have response by the counsel for Mr. Mrksic.
3 One hour and thirty minutes.
4 MR. VASIC: [Interpretation] Thank you, Your Honours.
5 I think that we will not use up all the time we have at our
6 disposal, so that perhaps the proceedings will be very expeditious today.
7 JUDGE MERON: That is good to hear.
8 MR. VASIC: [Interpretation] Thank you, Your Honours.
9 I will respond to question number 1 concerning liability under
10 Article 5 of the Statute, and my colleague, Mr. Domazet, will deal with
11 some other issues and circumstances which are important for sentencing.
12 As regards the elements for the existence of a crime against
13 humanity, we submit that all five elements have not been met in this
14 case, as required by international customary law. We must conclude that
15 the Trial Chamber had the task of establishing beyond reasonable doubt
16 that any attack which may have taken place was such that it was primarily
17 directed at the civilian population; further, it had to establish beyond
18 reasonable doubt that there was a nexus between the actions of the
19 accused and the attack on the civilian population, so that the
20 consequences of his action would constitute an objective part of the
21 attack and the accused knew that there was such an attack and that his
22 actions were part of it.
23 After the 18th of November, 1991, on the territory of Vukovar
24 there were no longer any combat activities or any other activities which
25 might be termed an attack. This can be concluded indirectly from
1 paragraphs 55 and 465 of the judgement which deal with the period from
2 the 18th -- or, rather, from August to the 18th of November, 1991. In
3 paragraph 472 of the trial judgement, the Trial Chamber has in mind a
4 limited period of time, and in the view of the Defence, it follows from
5 this that after the 18th of November, 1991, there were no attacks in this
6 area, especially not attacks directed at the civilian population.
7 These submissions by the Defence are supported by certain
8 exhibits, that is, the report of the EU Monitoring Mission. That's
9 Exhibits 314, 316, 320, 321, and 322; then the reports of the Commission
10 for monitoring the cease-fire, the implementation of the cease-fire,
11 Exhibits 331, 332, 333, 334, and 865; the reports of the Command of
12 Operative Group South, Exhibits 416, 417, 418, and 421; and the reports
13 of the Command of the 1st Military District, Exhibits 423 and 425.
14 The fact that there were no longer any attacks going on is also
15 demonstrated by the presence of the European Union Monitoring Mission,
16 the arrival of the special envoy of the Secretary-General of the UN,
17 Mr. Cyrus Vance, and the negotiations on the implementation of the
18 arrival of peacekeeping forces in this area. Had there been any ongoing
19 attacks at that time, none of these activities would have been
21 Although the previous activities in this area, especially in
22 Vukovar, have to be viewed through the lens of the special situation
23 there, reflecting the tactics used by the Croatian armed forces in which
24 President Tudjman introduced his order that civilians, women and
25 children, must not leave Vukovar - that's Exhibit 844 - and throughout
1 these combat activities there were civilians in Vukovar because of this
2 order issued by President Tudjman, and among these civilians was a large
3 number of Serbs, the fact that these operations might have been conducted
4 differently is also indicated by the fact that in the night between the
5 6th and -- the 16th and 17th of November, the members of the command of
6 the defence of Vukovar were able to leave the town without any fighting
7 or any other problems.
8 After the end of combat activities, there were no further armed
9 activities in the area, but civilians were separated off from persons who
10 had participated in the combat and who were suspected of perpetrating war
11 crimes, and most of the persons falling in this category had gathered in
12 the Vukovar Hospital
13 their task was to try to conceal themselves and leave Vukovar together
14 with the convoy of the wounded and civilians, and this can be seen from
15 the testimony of many witnesses, including Vesna Bosanac.
16 The order issued by the Operative Group South Command, that's
17 Exhibit 419, clearly defines what the treatment of civilians, the wounded
18 and the sick should be, and this is mentioned by the Trial Chamber in
19 paragraph 474 of the trial judgement. This column was headed by Colonel
20 Pavkovic, and this convoy reached its destination.
21 Another group of persons separated off by the security organs, in
22 order to be interrogated and either prosecuted or exchanged as suspects
23 suspected of perpetrating war crimes, took a different path, and in
24 paragraph 476 of the trial judgement, we can see the conclusion regarding
25 this separating off. The persons who separated off the potential
1 perpetrators of war crimes from the civilians and wounded in the hospital
2 and those escorting the column and guarding it later on, as well as those
3 who later on perpetrated this crime, were acting under the conviction
4 that their actions were directed against persons who were members of the
5 Croatian armed forces and potential perpetrators of war crimes who had
6 been deprived of their liberty. In part, this conclusion is based by the
7 Trial Chamber -- or, rather, is set out in paragraph 480 of the trial
8 judgement. Those acting against these persons acted in the conviction
9 that they were acting against members of the Croatian armed forces. And
10 in paragraphs 480 and 481, the Trial Chamber concludes that no reasonable
11 trier of fact could have concluded that the perpetrator had to know that
12 his actions were aimed against the civilian population of Vukovar.
13 The Defence, therefore, considers that the Trial Chamber
14 concluded rightly that the perpetrators could not have known that there
15 was a systematic and widespread attack on a civilian population because
16 there was no such attack and that it cannot be established that the
17 accused knew that their actions were part of such an attack or that there
18 was a risk that their actions should be part of such an attack.
19 According to the findings of the Trial Chamber, applying
20 Rules 51(A) of the --
21 THE INTERPRETER: Could counsel please slow down.
22 MR. VASIC: [Interpretation] -- because it included members of
23 various structures of the defence forces of Vukovar, which was proved
24 based on the documentation which was presented here by the Croatian side
25 before the Trial Chamber. These are Exhibits 345, 346, and 554, and my
1 learned friend, Mr. Stephane Bourgon, will be saying more about this.
2 Bearing all this in mind, we submit that no reasonable trier of
3 fact could have found that there was a nexus between the actions of the
4 accused and the attack or, rather, an attack on a civilian population,
5 nor that the actions at Ovcara were part of such an attack, nor that the
6 accused had reason to know that there was such an attack and that their
7 actions could be linked to the activities mentioned by the Trial Chamber
8 in paragraph 472 of the judgement.
9 We therefore consider that there are no elements to establish the
10 liability of the accused Mrksic for the crimes mentioned in Article 5 of
11 the Statute.
12 Your Honours, if you have any questions, I have concluded my part
13 of the arguments.
14 JUDGE MERON: Thank you, Mr. Vasic. So the response -- your
15 response --
16 THE INTERPRETER: Microphone, please.
17 MR. VASIC: [Interpretation] I apologise, Your Honours. I have
18 finished with my section that has to do with Article 5, and now
19 Mr. Domazet will address --
20 JUDGE MERON: Your colleague will speak for roughly how long?
21 MR. VASIC: [Interpretation] Ten to fifteen minutes, not longer
22 than that.
23 JUDGE MERON: So I would invite you to start.
24 MR. VASIC: [Interpretation] Thank you, Your Honours.
25 MR. DOMAZET: [Interpretation] Your Honours, I am going to analyse
1 the section that has to do with the sentence, and I'm also going to
2 review some factual matters.
3 The appeal of the OTP contests the decision on the sentence of
4 Mile Mrksic, which they believe to be too mild, not only because the
5 Prosecution considers that the accused should have been pronounced guilty
6 cumulatively, also, from acts of Article 5 of the Statute, but they also
7 consider the sentence overall to be too mild.
8 The Mrksic Defence responded to this appeal with its submissions
9 of the 18th of June, 2008, and especially in paragraphs 56 to 87 of the
10 reply, and it does not wish to reiterate their positions stated in that
11 response. But we will deal with some of the arguments that the Trial
12 Chamber also considered and that are the topic of the Prosecution's
14 When we are talking about sentencing arguments, according to laws
15 of the former Yugoslavia
16 should be said that not only the longest prison sentence provided for
17 that kind of crime in the former Yugoslavia
18 imprisonment, with the exception of the existence of the death sentence,
19 which was in force at the time, and possibly substituting the death
20 sentence for a 20-year imprisonment, the most important thing is that the
21 aiders and abetters, as is the case here, are sentenced much less
22 severely than the actual perpetrators of the crime or, as is the practice
23 and the terminology here, the articles of joint criminal enterprise. The
24 Trial Chamber did not even differentiate between the punishment for
25 co-perpetrators and the participants of a joint criminal enterprise,
1 which was not established in Mrksic's case, and as pertains to the
2 sentencing for aiding and abetting for which the accused Mrksic was found
4 I am going to refer now to a generally-known fact, and that is
5 that before the Special Court in Belgrade
6 group of those who are the direct perpetrators of the crime at Ovcara and
7 who were sentenced to a sentence of over 200 years imprisonment
8 altogether, but none of the individual perpetrators were sentenced to a
9 sentence higher than 15 years' imprisonment only because the Court found
10 that that was the maximum sentence provided for under the laws in force
11 at the time. The sentence was quashed for some formal reasons and a
12 retrial is underway, and a judgement is expected to come quite soon, and
13 now the sentences are somewhat higher because some perpetrators in the
14 meantime have been arrested and are being tried with those who were tried
15 in the first trial.
16 When we're talking about the sentence of 20 years pronounced on
17 Mrksic, the Defence will not repeat the arguments that it stated in its
18 appeals submissions, and those are that they believe that the sentence is
19 too severe and too high, and it would be severe even for much more
20 serious charges than the ones that Mrksic was found guilty of, and that
21 is aiding without the desire or intention that these persons be killed.
22 Even if the position of the Prosecution regarding cumulative charging
23 would be accepted for these events, that is, for a larger number of
24 crimes, according to Article 5 of the Statute, the sentence that would
25 reflect the overall conduct of the accused, the participation and
1 attitude towards the executed crime, the sentence passed on my client of
2 20 years of imprisonment is not too mild; it is actually too severe and
3 too high.
4 First of all, Mile Mrksic was pronounced guilty for aiding and
5 abetting, and according to findings of the Trial Chamber, because of
6 significant practical assistance to members of the TO and the
7 paramilitary, and at the same time the Trial Chamber found that it was
8 not established that Mile Mrksic was guilty of ordering the perpetration
9 of those crimes and that it was not found that he had participated in the
10 joint criminal enterprise, whose common goal would be the perpetration of
11 these crimes. This part of the Trial Chamber's decision was not part of
12 the Prosecution's appeal, but even in spite of that, their appeal does
13 request a higher sentence, and the Mrksic Defence believes that such a
14 request is without grounds and it is untenable because in a real --
15 realistic review of all the facts presented to the Court would not lead
16 to such a sentence. The Trial Chamber itself established that the
17 sentence cannot be arbitrary or excessive. This is paragraph 683 of the
19 When talking about the gravity of the crimes, the Trial Chamber
20 states that the sentence must reflect the inherent gravity or the overall
21 punishable conduct of the accused, with due attention being given to the
22 specific circumstances of the case as well as the form and degree of
23 participation of the accused. This is paragraph 684 of the judgement.
24 The correct application of these principles, in view of the fact
25 that Mrksic learned about the endangerment and harassment of the
1 prisoners after the fact, and that beside ordering that security be
2 stepped up as needed, there is no evidence that after that any violence
3 or mistreatment of prisoners occurred until the time after 2235 hours
4 when the paramilitaries and members of the TO who were present started
5 killing them.
6 If because of awareness of this violence upon entering the hangar
7 and the mistreatment of prisoners Mrksic should be held responsible for
8 aiding and abetting, then the sentence for this aiding and abetting would
9 have to be much lower than the one that was passed on him. The Trial
10 Chamber established that in the morning, he omitted to prevent the
11 further commission of crimes of cruel treatment and torture at Ovcara, on
12 which he was informed, and the Trial Chamber finds him responsible on two
13 counts of the indictment. The Trial Chamber established that he was
14 informed by Lieutenant-Colonel Panic and Major Vukasinovic about these
15 facts. According to the positions stated in the judgement, he was
16 informed about this by 5.00 p.m.
17 However, if Mrksic had not been informed about torture and cruel conduct
18 but only about the fact that the civilians and the TO were endangering
19 the safety of the prisoners, and this had occurred later in the
20 afternoon, sometime by 5.00 p.m.
21 this would not happen anymore, and the statement of Witness Vezmarovic,
22 the -- whose testimony the Trial Chamber gave credence to, asserts that
23 from the time when he took control with his military police until the
24 end, until he left the hangar, there was no mistreatment or torture of
25 the prisoners or any contact of the paramilitary soldiers or the TO and
1 the prisoners because the TO and the paramilitary members were removed
2 from the hangar. I refer to transcript 8428, from line 8; to 8480; 8498,
3 from line 10; 8501; and 8504. If from that point of time on, which from
4 the transcript seems to be around 5.30 when Vezmarovic took over complete
5 control, no torture or mistreatment of the prisoners actually occurred
6 until the end, and there was no killing either. This is something that
7 this witness is very decisive about.
8 It is clear to the Defence, thus, that the Trial Chamber
9 pronounced the sentence because it found that Mrksic issued the order on
10 the withdrawal of the military police from Ovcara, thus committing aiding
11 and abetting in murder, but Mrksic really did not commit such an act
12 because he never issued such an order to anyone, not even Captain
13 Karanfilov, who did not -- whom he did not see on that day at all, and no
14 evidence was presented on this, that there was any contact between the
15 two of them on that day. The Trial Chamber established, however, that
16 Mrksic conveyed or issued an order directly to Karanfilov.
17 At the time when someone did make this decision and made it
18 possible for happen [as interpreted] what unfortunately did happen, these
19 are the killings at Ovcara, Mrksic was no longer in Negoslavci, and that
20 is why he really cannot bear responsibility for possible aiding or
21 abetting. If his responsibility could have been established for what he
22 found out about the mistreatment at Ovcara, and I repeat, they occurred
23 upon the prisoners' arrival, entry in the hangar, and immediately
24 afterwards, and this is what he was informed about only after the fact
25 and not to the degree that actually happened because what he was informed
1 about by the soldiers was more the actual endangerment and the need for
2 reinforcements rather than telling him fully what the prisoners
3 experienced when they arrived at the hangar and immediately after that.
4 In all of this the Trial Chamber, in the opinion of the Defence, did not
5 evaluate all the mitigating factors and did not evaluate or give proper
6 weight to the impeccable life conduct of Mrksic, professionally and
7 personally; prior to that, his years of service, his family
8 circumstances, and the fact that he voluntarily surrendered to the
9 Tribunal as soon as the law on the cooperation with The Hague Tribunal
10 was adopted in Serbia
11 Especially, they did not take into account his state of health,
12 since he had open-heart surgery and the procedures that that involved
13 during his time here in the Detention Unit of the United Nations.
14 Finally, the Mrksic Defence proposes that if the Appeals Chamber
15 were not to accept the appeal and does not acquit Mrksic of
16 responsibility pursuant to all counts of the indictment and does find
17 that he is guilty for aiding and abetting, either pursuant to all the
18 counts of the indictment on which he was pronounced guilty or only for
19 some of them, we suggest that in that case, he be sentenced to a much
20 lower prison sentence.
21 MR. VASIC: [Interpretation] Your Honours, this completes the
22 response of the Mrksic Defence to the Prosecution appeal.
23 Thank you very much. If you have no additional questions, then
24 we have completed our presentation.
25 JUDGE MERON: Thank you very much for completing your
1 presentation ahead of time. This means that we will now be able to move
2 on right away to the response by counsel for Mr. Sljivancanin. They have
3 altogether one hour and forty-five minutes. They can use now forty-five
4 minutes, and one hour we will use after lunch.
5 I also wanted to draw the attention of the parties, please, and
6 the Registry that since we are likely to complete our hearings today
7 earlier than planned on the amended timetable, I will hold the status
8 conference earlier than envisaged. We will just hold the status
9 conference, say, 10 or 15 minutes after the end of the hearing, simply to
10 enable for tapes to be inserted and so on, but we will not wait until the
11 time I have indicated for the status conference.
12 Mr. Bourgon.
13 MR. BOURGON: Thank you, Mr. President.
14 I will be presenting the first part of our response to the
15 Prosecution appeal, and I will be submitting arguments for Ground
16 number 1, crimes against humanity. And I will, of course, be answering
17 the question that was put forward by the Appeals Chamber, which was
18 suggested to us that we should answer. My colleague will answer -- this
19 afternoon will respond to the second ground of appeal, and, time
20 permitting, we will end our submissions with some remarks on sentencing,
21 which is the third ground of appeal of the Prosecution.
22 Mr. President, I move immediately to the first ground of appeal
23 from the Prosecution dealing with crimes against humanity.
24 As a result of the Appeals Chamber judgement in the Prosecutor v.
25 Martic, the Prosecution normally had two sub-grounds of appeal and has
1 withdrawn its second sub-ground. The second sub-ground was related to
2 the definition of "civilian" in Article 50 of Additional Protocol I and
3 the applicability of that definition to crimes against humanity pursuant
4 to Article 5 of the statute.
5 Accordingly, this morning the Prosecution has limited its
6 arguments to one issue, and that was, namely, whether Article 5 of the
7 Statute requires individual victims to be civilians, and they limited
8 their arguments on this issue to saying that the Appeals Chamber decision
9 in Martic resolves the issue.
10 My submissions this morning will be presented as follows: I will
11 first address the judgement rendered by the Appeals Chamber in the
12 Prosecutor v. Martic, which deals with the same issue as that raised in
13 the Prosecution's first ground of appeal. This will allow me to briefly
14 set out our position in respect of this issue. I will then focus the
15 majority of my submissions this morning to the Appeals Chamber's question
16 related to the evidence on the trial record concerning the requirement of
17 a widespread and systematic attack against a civilian population and, as
18 the Appeals Chamber put it, especially in relation to the events in
19 Vukovar, and of course the nexus between the acts of the accused and such
20 an attack.
21 Moving on immediately to the Appeals Chamber judgement in the
22 Prosecutor v. Martic, at paragraph 302 of its judgement, the
23 Appeals Chamber found that the definition of "civilian" contained in
24 Article 50 of Additional Protocol I does reflect the definition of
25 "civilian" for the purpose of applying Article 5 of the Statute. The
1 Appeals Chamber also found that the term "civilian," in the context of
2 Article 5 of the Statute, does not include persons hors de combat.
3 Mr. President, this corresponds to one of our main arguments set out in
4 our response brief, and we of course fully agree with both of these
5 findings by the Appeals Chamber, which we maintain are important for the
6 adjudication of this case.
7 That being said, Mr. President, the Appeals Chamber went on to
8 consider, and that is at paragraph 303 of the Appeals Chamber judgement,
9 whether the chapeau of Article 5 of the Statute, namely, that the attack
10 be directed against a civilian population, whether that chapeau also
11 requires that all victims of each individual crime under Article 5 have
12 civilian status. With respect to this issue, the Appeals Chamber
13 concluded at paragraph 307 that there was nothing in the text of
14 Article 5 of the Statute or in previous authorities of the
15 Appeals Chamber which requires that victims of crimes against humanity be
16 civilians. The Appeals Chamber went on to state at paragraph 303 that a
17 person hors de combat may thus be a victim of an act amounting to a crime
18 against humanity, provided, of course, that all other necessary
19 conditions are met; in particular, that the act in question, or the
20 crime, must be part of a widespread or systematic attack against any
21 civilian population.
22 Mr. President, for the reasons set out in the judgement under
23 appeal as further expanded upon in our response brief, we respectfully
24 disagree with this finding of the Appeals Chamber. We submit, as found
25 at paragraphs 102 and 120 of our response, that for the purposes of
1 Article 5 of the Statute, the victims of the underlying crimes must be
2 civilians as defined in Article 51 of Additional Protocol I, which
3 specifically excludes, as we know, soldiers, members of resistance
4 groups, former combatants who have laid down their arms, and/or
5 combatants who are now hors de combat. Consequently, Mr. President, we
6 respectfully ask the Appeals Chamber to revisit its judgement in the
7 Martic case in light of the additional arguments set out in our response.
8 That being said, with a view to focusing on the question put to
9 us by the Appeals Chamber this morning, we will not expand further on
10 this issue, and I will move right away to that question.
11 The question was at follows: First of all, the question takes,
12 as a premise, that the Appeals Chamber judgement in Martic will hold;
13 namely, that a person hors de combat may be a victim of a crime against
14 humanity, provided that all other necessary conditions are met, and in
15 particular that the act in question be part of a widespread or systematic
16 attack against any civilian population. In answering the Appeals Chamber
17 question, I will first set out what our position is as to whether the
18 chapeau requirement for Article 5 is met in this case. I will then
19 expand on the underlying legal principles which must be considered, and I
20 will follow by highlighting the evidence on the record which supports our
22 Our position, Mr. President, can be summarised as follows:
23 Firstly, on 20 November 1991
24 members of the TO and paramilitaries, there was no widespread and
25 systematic attack directed on the civilian population on that day.
1 Accordingly, in our view, this is sufficient for the chapeau requirements
2 not to be met and for the verdict of acquittal, which was returned by the
3 Trial Chamber for Counts 1, 2, 3, 5, and 6, to stand.
4 Secondly, should the Appeals Chamber hold on the basis of the
5 evidence on the record that there was a widespread or systematic attack
6 directed at the civilian population on 20 November 1991, then we say that
7 the acts committed by the perpetrators were not part of the widespread
8 and systematic attack directed at the civilian population on that day
9 and, of course, that there was no nexus between the acts committed by the
10 perpetrators and this attack. Consequently, the chapeau requirements of
11 Article 5 would not be met, and once again, this would justify that the
12 verdict of acquittal returned by the Trial Chamber for Counts 1, 2, 3, 5,
13 and 6 to stand.
14 Finally, Mr. President, the third step, should the
15 Appeals Chamber hold on the basis of the evidence in this case on the
16 record that there was a widespread or systematic attack directed at the
17 civilian population and that there was the necessary nexus between the
18 acts of the perpetrators and this attack, then it is our submission that
19 the perpetrators either did not know that their acts constituted part of
20 a pattern of widespread or systematic crimes directed at a civilian
21 population, nor did they know that their acts fitted into such a pattern.
22 Consequently, the mens rea requirement, pursuant to Article 5 of the
23 statute, would not be met, and once again, the verdict of acquittal
24 returned by the Trial Chamber for these counts should stand.
25 In this regard, Mr. President, it is our submission that the
1 mens rea requirement must also be assessed in this case from the point of
2 view of Mr. Sljivancanin as well as from the point of view of the
4 I now move on, Mr. President, to setting out briefly the legal
5 principles which form the basis of our position in this case.
6 Firstly, we believe that the first legal consideration of
7 importance is to understand the difference which exists between the
8 following notions: Armed conflict; attack pursuant to Article 5 of the
9 Statute; attack pursuant to Article 49(1) of Additional Protocol I; and
10 unlawful attack against a civilian population pursuant to Articles 51(2)
11 and 85(3)(A) of Additional Protocol I.
12 In this regard, it is well known that pursuant to Article 5 of
13 the Statute of this Tribunal, a requirement exists exceptionally that a
14 crime against humanity be committed in armed conflict, whether
15 international or non-international. Moreover, pursuant to the case law
16 of the International Tribunal, we know that an armed conflict exists
17 whenever there is a resort to armed force between states or protracted
18 armed violence between governmental authorities and organised armed
19 groups or between such groups within a state. I refer to Tadic,
20 paragraph 407, the jurisdiction decision of 2 October 1995, paragraph 70.
21 As for an attack within the meaning of Article 5 of the Statute,
22 it has been defined as a course of conduct involving acts of violence,
23 and it is not limited to the use of armed force, and it may also
24 encompass any mistreatment of the civilian population. This is found in
25 Kunarac Appeals Chamber judgement, paragraph 86. In this regard, it
1 follows, Mr. President, that the concept of armed conflict and the
2 concept of attack, pursuant to Article 5, are not identical; Tadic
3 Appeals Chamber judgement, paragraph 251. The two must be separate
4 notions, although, of course, under Article 5 of the Statute the attack
5 against any civilian population may be part of an armed conflict; Kunarac
6 Appeals Chamber decision, paragraph 86.
7 Moving on quickly, Mr. President, to the definition of attack for
8 IHL purposes, pursuant to international humanitarian law. Article 49(1)
9 defines "attack" as acts of violence against the adversary, whether in
10 offence or defence. In other words, "attack," pursuant to Additional
11 Protocol I, refers to the use of armed force by one party against
12 another, which of course will be his adversary.
13 The final notion that we need to address is that of unlawful
14 attack on a civilian population pursuant to the Laws of War and as
15 defined by reference to Articles 51(2) and 85(3) of Additional
16 Protocol I. In accordance with these provisions, the term "unlawful
17 attack" on a civilian population refers to an attack, as defined pursuant
18 to Article 49(1) of Additional Protocol I, which is unlawful because it
19 is directed at a civilian population as defined in Article 51(2), and of
20 course which results in civilian death, and that is as held by the
21 Appeals Chamber in the Prosecutor v. Kordic at paragraph 67.
22 From these definitions, Mr. President, it is possible to conclude
23 the following: Firstly, an attack pursuant to Article 5 of the Statute
24 does not necessarily involve an attack pursuant to Article 49(1) of
25 Additional Protocol I. In this regard, an attack may happen during an
1 armed conflict, and it may also -- and the attack against -- the
2 Article 5 attack, sorry, may happen during an armed conflict, and it may
3 also out-last the armed conflict. Secondly, the term "armed conflict"
4 may but does not necessarily involve an attack pursuant to Article 5 of
5 the Statute. Thirdly, an armed conflict will most likely involve
6 attacks, as defined pursuant to the Laws of War, Article 49(1) of the
7 Additional Protocol I, but the presence of attacks, pursuant to
8 Article 49(1), may very well be happening without there being an attack
9 pursuant to Article 5 of the Statute.
10 Putting all these notions together will be important when we
11 assess the facts and the evidence on the record in this case.
12 The second legal consideration which is, in our submission,
13 important is the meaning to be given to "directed against," in the
14 context of Article 5 of the Statute. The Appeals Chamber has clarified
15 that this term, "directed against," is an expression which specifies that
16 in the context of a crime against humanity, the civilian population is
17 the primary object of the attack. What is significant here are the
18 criteria which the Appeals Chamber has identified in order that if we
19 consider these criteria, we will be able to determine whether there was,
20 indeed, an attack directed against the civilian population, and these
21 include the means and methods used in the course of the attack; the
22 status of the victim - very important; the number of victims; the
23 discriminatory nature of the attack; the nature of the crimes committed
24 during the attack; the resistance to the assailants at the time; the
25 extent to which the attacking force may be said to have complied or
1 attempted to comply with the precautionary requirements pursuant to the
2 Laws of War; and finally, to the extent that the alleged crimes against
3 humanity were committed during the course of an armed conflict, that the
4 Laws of War, of course, provide a benchmark against which the nature of
5 the attack and the legality of the acts committed can be assessed. This
6 will be, again, also important when we assess the evidence on the record.
7 The third legal consideration which is of importance, in our
8 submission, is the meaning to be given to "widespread and systematic."
9 In our view, however, these terms are well defined in the case law of the
10 International Tribunal, and there's no need to further expand on them at
11 this point.
12 The last legal consideration which is of importance, in our
13 submission, is the meaning to be given to Article 5 of the Statute, the
14 requirement that the acts of the perpetrator must constitute part of the
15 attack. The Appeals Chamber in Kunarac has confirmed that this refers to
16 the nexus which must exist between the acts of the accused and the
17 attack. The Appeals Chamber has also said that the required nexus
18 comprises two elements; firstly, the acts committed which by its nature
19 and its consequence is objectively part of the attack; and, secondly, the
20 accused must know that there is an attack directed at the civilian
21 population and that his acts are part of it.
22 With respect to the first element, as part of, namely, the
23 commission of an act which by its nature and consequences is objectively
24 part of the attack, the Appeals Chamber has held that the acts need not
25 be committed in the midst of the attack, but it must be sufficiently
1 connected to be part of the attack. The Appeals Chamber has also held
2 that the crime must not be an isolated act.
3 Consequently, Mr. President, in our submission, the following
4 must be looked at to determine whether the crime is part of the attack:
5 The nature of the crime, the consequences of the crime, the context and
6 the circumstances in which the crime was committed, and the connection
7 between the crime and the attack.
8 As for the second element of the term "as part of," it requires
9 two things. The accused must know that there is an attack directed at
10 the civilian population, and he must know that his acts are part of that
11 attack against the civilian population. This knowledge, of course, is
12 part of the mens rea requirement for crimes against humanity. Even
13 though it is not necessary for the accused to have knowledge of the
14 details of the attack itself, the attack which was directed at the
15 civilian population, evidently the accused must have known the nature and
16 the consequences of the attack directed against the civilian population.
17 And, more particularly, what is of critical importance, that the target
18 victim group comprises civilians as defined in Article 51 of Additional
19 Protocol I. Why is this so important? Simply because when the time
20 comes to determine whether the accused knew that his crime was part of
21 the attack against the civilian population, it will be necessary to
22 compare the knowledge -- his knowledge of the target group of his crime
23 and his knowledge with the target group of the attack against the
24 civilian population. It will also be necessary to compare the knowledge
25 of the accused regarding the consequences of his acts, meaning his
1 crimes, with the knowledge -- his knowledge of the consequences of the
2 attack against the civilian population.
3 Having looked at the legal considerations which are of importance
4 to support our submission, we can now move on to the exact questions
5 which were put to us by the Appeals Chamber.
6 Of course, the first question, which is not included, is: Was
7 there an armed conflict on 20 November 1991
8 that is at paragraph 422, that an armed conflict existed in the broader
9 area of the municipality of Vukovar
10 commenced by the end August 1991 and continued until after the events
11 charged in the indictment. Accordingly, it is not disputed in this
12 appeal that there was an armed conflict on 20 November 1991, but the
13 most -- the more important question: Was there on 20 November 1991 a
14 widespread or systematic attack directed at the civilian population of
15 Vukovar? And to answer this question, we must first look at the events
16 up to 18 November based on the Trial Chamber's findings.
17 The Trial Chamber found - paragraph 465 - that from 23 August
18 until 18 November, the town of Vukovar and its surroundings were
19 increasingly subjected to shelling and other fire, and the damage to the
20 city was devastating. The siege of Vukovar commenced on 25 August 1991;
21 that is paragraph 37. At paragraph 465, in essence, the city of Vukovar
22 was encircled and under siege until the Croat forces capitulated on 18
24 I also refer to the following findings of the Trial Chamber at
25 paragraph 468, where the battle of Vukovar caused a large number of
1 casualties, both dead and wounded, combatants and civilians, and the
2 Chamber accepted as a reliable estimate that the casualties were 60 to
3 75 per cent civilian; paragraph 466, that the buildings were shelled,
4 including schools, kindergartens, and wells were also targeted and
5 destroyed; paragraph 470, that the attack consciously and deliberately
6 directed against the city of Vukovar
7 population, trapped as they were by the military blockade of Vukovar;
8 paragraph 472, the extensive damage to civilian property and civilian
9 infrastructure, the number of civilians killed or wounded during the
10 military operations, and the high number of civilians forced to flee,
11 clearly indicate that the attack was carried out in an indiscriminate
12 way, contrary to international law.
13 Accordingly, the Trial Chamber found that at the time relevant to
14 the indictment, there was in fact not only a military operation against
15 the Croat forces in and around Vukovar but also a widespread and
16 systematic attack by the JNA and other Serb forces directed at the Croat
17 and other non-Serb civilian population in the wider Vukovar area; 472,
18 trial judgement.
19 On the basis of this evidence, Mr. President, the following
20 conclusions can be drawn: Firstly, that from late August 1991 until 18
21 November, there was an unlawful attack against the civilian population,
22 pursuant to the Laws of War and Article 51(2) and 52(1) of Additional
23 Protocol I; secondly, in parallel to this attack, in the same period
24 there was a widespread and systematic attack directed against the
25 civilian population pursuant to Article 5 of the Statute; and, thirdly,
1 according to the Trial Chamber, the acts of violence and the unlawful
2 acts which constituted the unlawful attack against the civilian
3 population and civilian objects, pursuant to the Laws of War or
4 Additional Protocol I, are the same acts of violence and unlawful acts
5 which it qualified as a widespread or systematic attack directed against
6 the civilian population.
7 That being said, we now turn to the period what happens between
8 the 18th of November and the 20th of November. Once again, a two-step
9 process is required. First, we need to look at the findings of the Trial
10 Chamber. It found that the Croatian forces in and around Vukovar
11 capitulated on 18 November, but on 18 November, 4.000 civilians took
12 steps to leave Vukovar and that their evacuation was assisted by the JNA;
13 paragraph 157. At paragraphs 130 to 144, the Zagreb Agreement is
14 discussed. The Zagreb Agreement was reached on 18 November, agreement on
15 a humanitarian convoy to evacuate the wounded and the sick from the
16 Vukovar Hospital
17 and along the agreed evacuation route. Preparation for the evacuation of
18 the hospital was done between 18 to 20 November - that's paragraphs 180
19 to 189 of the trial judgement - and on 20 November at 700 hours in the
20 morning, the beginning of the evacuation of the hospital, at
21 paragraph 199.
22 We also need to look at the following evidence on the record, and
23 we respectfully refer the Trial Chamber to the following exhibits: 368,
24 417, 418, 419, 421, 425, 734, and 735. These exhibits, Mr. President,
25 are combat reports submitted by Operation Group South to the command of
1 the 1st Military District Command, as well as from the 1st Military
2 District Command to the Operations Centre of the SFRY, and these combat
3 reports cover the period from 18 to 22 November.
4 We also respectfully refer the Appeals Chamber to Exhibits 314,
5 315, 316, 320, 321, 322, 323, 333, 334, 339, 340, 341, and 344. These
6 are reports prepared by the European Community [sic] Monitoring Mission
7 during the period from 16 to 27 November 1991. And of course, we also
8 refer the Appeals Chamber to Exhibit 40, which is the Zagreb Agreement,
9 which is a document setting out the agreement between the Republic of
11 the Red Cross, Medecins Sans Frontieres, as well as the Maltese Cross.
12 This agreement regarding the convoy to evacuate the wounded and sick from
13 the Vukovar Hospital
14 includes, among other things, an undertaking by both parties, Croatia
15 the Yugoslav People's Army, to guarantee a cease-fire in the area of
16 Vukovar Hospital
17 Mr. President, it is our submission that these documents
18 establish amongst other things the ongoing efforts and the intent of the
19 Yugoslav People's Army during this period to organise the evacuation of
20 civilians, to evacuate the wounded and sick, and to care for the civilian
21 population. These documents also establish that there is no more
22 shelling and no more offensive operations, although there are, according
23 to the reports, a few skirmishes where Croat forces refused to surrender.
24 Consequently, it is our submission on the basis of this evidence,
25 including the exhibits referred to and the findings of the Trial Chamber,
1 and of course bearing in mind the criteria mentioned earlier, which must
2 be considered to determine whether there is a widespread or systematic
3 attack directed at the civilian population, and our submission is that
4 the unlawful attack against the civilian population, pursuant to
5 Additional Protocol I, ended on 18 November with the surrender of the
6 Croat forces. Also, the widespread and systematic attack directed
7 against the civilian population, pursuant to Article 5, also ended on 18
8 November 1991, as evidenced by the fact that there was no longer any
9 course of conduct involving the commission of acts of violence directed
10 at the civilian population, and, of course, there was no longer any
11 course -- any mistreatment of the civilian population.
12 In other words, Mr. President, during the period from 18 to 20
13 November, there has been a complete change in the situation, which has
14 evolved from fighting using armed force between the Yugoslav People's
15 Army and Croatian forces to a situation where both parties and, more
16 importantly, the Yugoslav People's Army, displayed the will to protect
17 the civilian population and not to hurt or mistreat the civilian
18 population in any way. We're talking about, of course, humanitarian
19 efforts. On this basis, we respectfully submit that on 20 November,
20 there was no widespread or systematic attack directed at the civilian
21 population in the Vukovar area, and that for this reason, the chapeau
22 requirements of Article 5 was not met.
23 What is significant here, Mr. President, is the parallel that was
24 established by the Trial Chamber between the unlawful attack pursuant to
25 the Laws of War and the widespread and systematic attack against the
1 civilian population pursuant to Article 5 of the Statute. The evidence
2 makes it clear that both of them ended on 18 November 1991.
3 The third question which needs to be addressed is the following:
4 Were the unlawful acts committed at Ovcara on 20 November part of any
5 widespread or systematic attack directed at the civilian population which
6 ended on 18 November 1991
7 answer to that question, Mr. President, is a definite no. According to
8 the Prosecution, a sufficient nexus exists between the events at Ovcara
9 because it happened two days after the end of the surrender, in the same
10 geographical area, and because it was committed by persons who were
11 involved in the fighting or the same persons who were involved in the
12 fighting, persons who would -- who harboured feelings of animosity
13 towards enemy Croatian forces. It is our submission, Mr. President, that
14 this is not sufficient to establish the necessary nexus. As we have seen
15 earlier, the nexus comprises two elements; firstly, the acts at Ovcara
16 must be objectively part of the attack - of course, the Article 5 attack
17 - by their nature and consequences; and the accused must know that the
18 crimes are part of the attack directed at the civilian population.
19 Assessing the first of these elements on the basis of the
20 evidence on the record, we find the following: Firstly, the nature of
21 the crime, the torture of prisoners of war at Ovcara, is entirely
22 different. During the fighting, before 18 November, the use of armed
23 force was directed indiscriminately at the civilian population and the
24 civilian infrastructure. Vukovar was under siege, and the fighting
25 against the Croatian forces at that moment was legitimate.
1 Looking at the consequences of the crime, they are completely
2 different. The victims at Ovcara were exclusively prisoners of war,
3 while the victims of the widespread and systematic attack against the
4 civilian population before 18 November were primarily and mostly
5 civilians, and the consequence was devastation of the civilian
6 infrastructure. Looking at the context and the circumstances in which
7 the crimes at Ovcara were committed, they have no connection with the
8 unlawful attack against the civilian population at the time when Vukovar
9 was under siege. Active fighting was taking place between parties to the
10 conflict, and the Croatian forces had not yet surrendered. At Ovcara,
11 prisoners of war were detained and mistreated, there was no more
12 fighting, and the Yugoslav People's Army was focusing all of its efforts
13 on the evacuation and the care of civilians. As a matter of fact, a
14 clear distinction can be established between the unlawful acts of the TOs
15 and paramilitaries and even the acts and intent of the JNA forces at the
16 same moment. Consequently, the crimes of the TOs and paramilitaries at
17 Ovcara exclusively against prisoners of war were not directed at the
18 civilian population of Vukovar.
19 Assessing the second element on the basis of evidence, we find
20 the following: Firstly, it can be said on the basis of the evidence that
21 the perpetrators of the mistreatment at Ovcara were aware of the
22 widespread or systematic attack directed against the civilian population
23 up to 18 November. That being said, they knew that both the unlawful
24 attack against the civilian population pursuant to the Laws of War, the
25 shelling and so, as well as the widespread and systematic attack directed
1 against the civilian population, pursuant to Article 5, both of them
2 ended on 18 November, and the perpetrators knew this, and they knew that
3 the focus of the JNA after that date was the evacuation and the care of
4 both civilians and the sick and wounded. The real question, then, is
5 whether they knew that their crimes, the crimes they committed, were part
6 of the Article 5 attack.
7 The following findings of the Trial Chamber are important in this
8 regard: The persons removed by the JNA forces from the Vukovar Hospital
9 on 20 November and taken to Ovcara, there by Serb forces, had been
10 specifically identified, being that they were known or were believed to
11 have been active in the Croatian forces; paragraph 480. They were
12 identified and taken into JNA custody as prisoners of war; same
13 paragraph, 480. The perpetrators of the offence against the prisoners of
14 war on 20-21 November acted in the understanding that their acts were
15 directed against members of the Croatian forces, not against the civilian
16 population. The members of the Serb forces who had custody of the
17 victims on 20 November and those who executed them that evening and night
18 at Ovcara acted in the knowledge and belief that the victims were
19 prisoners of war, not civilians, as well as in the understanding that
20 their acts were directed against the members of Croatian forces;
21 paragraphs 480, 481.
22 On the basis of these findings, Mr. President, here's what we
23 have to look at: We have two things. First, we have to look at the
24 knowledge of members of the TOs and paramilitaries concerning the
25 widespread and systematic attack before the 18th of November; then, the
1 knowledge and the understanding of members of the TOs and paramilitaries
2 concerning their own crimes on 20 November. As mentioned earlier, this
3 comparison must take place on the basis of the consequences, the context,
4 the circumstances, and the connection, if any, between the crimes in both
5 cases. Consequently, on this basis, on the basis of the totality of the
6 evidence on the record, there's only one possible conclusion, and that
7 is, Mr. President, that the members of the TOs and the paramilitaries who
8 committed crimes at Ovcara on 20 November were not aware that these
9 crimes fit in or were part of the widespread or systematic attack which
10 -- directed at the civilian population of Vukovar, which ended on 18
11 November 1991.
12 Lastly, Mr. President, it is necessary to look at these events
13 from the point of view of Mr. Sljivancanin. Is it reasonable to think
14 that Mr. Sljivancanin knew that the mistreatment of the prisoners of war
15 at Ovcara, considering the nature, the consequences, as well as the
16 context and the circumstances in which crimes were committed, is it
17 reasonable to think that he knew that this was part of the widespread or
18 systematic attack directed at the civilian population which ended on 18
19 November? Of course not, Mr. President. According to the Trial Chamber,
20 Mr. Sljivancanin was entrusted by his commander to organise the
21 evacuation of the civilians at the Vukovar Hospital
22 operation, to ensure that members of the Croatian forces would be dealt
23 with in accordance with the law. With the help of others, he personally
24 screened and made sure that to the best his knowledge no members of the
25 Croatian forces would evade their responsibility as potential war
1 criminals by being evacuated with the civilians he was caring for and no
2 civilians would face legal proceedings along with members of the Croatian
3 forces who were now prisoners of war.
4 At one point, when 12 to 15 persons were returned from the JNA
5 barracks to the hospital, to the Vukovar Hospital
6 review his own prior decisions to ensure that this was so. Some of them
7 were put with the civilians who were evacuated; others were returned to
8 the JNA barracks where they pursued with the prisoners of war.
9 And although we maintain that he was never at Ovcara, if the
10 Appeals Chamber holds that he did go there and that he did see any
11 mistreatment, there was certainly no doubt in his mind that prisoners of
12 war were being mistreated and not civilians, by members of the TO and the
13 paramilitaries who at that time did not agree nor act in accordance with
14 the humanitarian efforts of the Yugoslav People's Army, that this was
15 unrelated to the widespread or systematic attack directed at the civilian
16 population of Vukovar which ended on 18 November.
17 For all these reasons, Mr. President, we respectfully request the
18 Appeals Chamber to dismiss the Prosecution's ground of appeal and confirm
19 the verdict of acquittal returned by the Trial Chamber for Counts 1, 2,
20 3, 5, and 6.
21 Respectfully submitted, Mr. President.
22 JUDGE MERON: Thank you, Mr. Bourgon.
23 We will now break for one hour and fifteen minutes, which would
24 bring us to 1.30. We will meet at 1.30, at which time your team will
25 have one more hour to speak. I hope you will not use all of that time,
1 but you will have up to one hour. I am not sure that we will need a
2 pause in the afternoon. I will check on the tapes question. And then
3 the Prosecutor will have 45 minutes to reply. After that, we will have
4 personal statements, if the appellants are interested in making short
5 personal statements. After that, we will have a few minutes' break, and
6 we will have a status conference.
7 So we will now rise until 1.30.
8 --- Luncheon recess taken at 12.13 p.m.
9 --- On resuming at 1.28 p.m.
10 JUDGE MERON: Please be seated.
11 So if I'm not mistaken, the counsel for Mr. Sljivancanin has
12 another up to 60 minutes.
13 MR. LUKIC: [Interpretation] Thank you very much, Mr. President.
14 I would now like to provide argumentation of the Defence that has
15 to do with our response to the second ground of appeal of the OTP. The
16 essence of it is in the alleged error of the Court in paragraph 672 of
17 the judgement. That is the core of the matter.
18 According to the Prosecutor, no reasonable trier of fact would
19 come to the conclusion that the Trial Chamber came to; namely, that
20 Sljivancanin had reason to believe that members of the Territorial
21 Defence and the paramilitaries would not attempt murder because then it
22 was the Yugoslav People's Army that was providing security for the
23 prisoners. That is paragraph 99 of the appeal. Its argumentation is
24 based on the previous knowledge of Sljivancanin about the actions of the
25 TO and the paramilitaries, as well as his awareness of the JNA not
1 preventing these persons from committing crimes in the previous period.
2 That is what the OTP says.
3 The OTP, lacking argumentation concerning this alleged error made
4 by the Trial Chamber, actually extensively repeats the conclusions and
5 findings of the Court on the evidence provided that should show that
6 Sljivancanin was aware of the behaviour of the members of the TO as
7 persons who are capable of committing murder.
8 All assertions made by the Prosecutor on Sljivancanin's awareness
9 of previous crimes of members of the TO and paramilitaries were something
10 that the Trial Chamber did have in mind when they found what they did in
11 paragraph 672, and they unequivocally said that, stating: It is true
12 that Sljivancanin must have been aware on the basis of his knowledge of
13 the events at Velepromet on the 19th of November, 1991, that at least
14 some of the TOs and paramilitaries were capable of killing.
15 However, what the Trial Chamber established as a key fact in its
16 findings as to why Sljivancanin could have assumed there would be no
17 killings was the presence of the security of the JNA. The Prosecutor did
18 not show that the Trial Chamber erred in those findings that led to a
19 miscarriage of justice.
20 The Prosecutor did not challenge the key findings of the Trial
21 Chamber from the judgement, which had as a direct consequence this
22 consequential conclusion from paragraph 672 that we are discussing. In
23 actual fact, the Trial Chamber, in paragraphs 620 and 621, concluded that
24 the danger came to be, in terms of the lives of the prisoners in the
25 hangar, after the JNA security withdrew. The Prosecution did not
1 challenge the evidence that the Trial Chamber refers to. Evidence
2 actually shows that the killings were committed after the military
3 security withdrew; paragraphs 252 and 294.
4 It is clear that the JNA and the members of the security of the
5 military police of the 80th Motorised Brigade were actually between the
6 immediate perpetrators of the crimes of murder and the victims. The
7 Trial Chamber did not establish that the killings occurred in the period
8 while there was security provided by the JNA at Ovcara; paragraphs 494
9 and 508. That was also not challenged by the Prosecution in their
11 Had the Trial Chamber concluded on the basis of the evidence
12 adduced that there was a danger for the lives of prisoners even at the
13 time when the JNA was providing security at Ovcara and that this danger
14 had as a direct consequence a direct attack against the lives of
15 prisoners, then there could be a connection established between possible
16 previous knowledge of Sljivancanin about the proneness of members of the
17 TO in terms of committing crimes and possible incapacity to provide
18 security in order to prevent killings from taking place.
19 In contrast to that construction made by the Prosecution, the
20 Trial Chamber established that the killings started after 2100 hours,
21 that is to say, after the security withdrew. The military police of the
22 80th Brigade was that buffer in whose presence the members of the TO
23 could not jeopardise the lives of the prisoners on that afternoon.
24 The Prosecutor himself in paragraph 186 claims that the
25 withdrawal of the security of the JNA from Ovcara left the prisoners in
1 the hands of the TO and the paramilitaries, who then killed them over
2 several hours. Then, in paragraph 199 of their appeal, the OTP says that
3 the order on the withdrawal of security after 2100 hours, the prisoners
4 remained in the hands of the TO and the paramilitaries, and that then
5 they: [In English] "... vented their desire for revenge without
7 [Interpretation] And they refer to paragraph 620 of the judgement
8 as a reference for this assertion. And in that paragraph that the
9 Prosecutor refers to, the Trial Chamber, in relation to the consequences
10 of the withdrawal of security, says the withdrawal of the JNA guards
11 removed this one restraint. What followed dramatically demonstrates that
12 the JNA guards had been effective, and the gravity and intensity of the
13 hatred and desire for revenge was then able to be unleashed without
15 It is not only that the OTP does not challenge these findings of
16 the Trial Chamber, but as a matter of fact they support it, and in their
17 own appeal, in their third ground, they refer to it. The Prosecutor
18 supported this same thesis two days ago - transcript reference
19 7317 - when Mr. Rogers said, in relation to Mr. Mrksic:
20 [In English] "He ordered the withdrawal of 80th Motorised
21 Brigade, the only protective force keeping the killers at bay."
22 [Interpretation] And then on page 87, line 11, he also says:
23 [In English] "When he did act, it was to withdraw the only
24 security they had and to consign them to their fate."
25 [Interpretation] In the judgement, the Trial Chamber concluded
1 that Sljivancanin, on the basis of his prior knowledge on their behaviour
2 during the events in Ovcara, had to be aware that some of them might
3 commit crimes, including murders.
4 The Defence, in their response in paragraphs 188 through 198, and
5 also in our appeal, paragraph 441 to 467 inclusive, dealt in detail with
6 the argumentation in which we challenged the findings of the Court in
7 terms of this element of Sljivancanin's mens rea.
8 In his appeal, the Prosecutor, in support of these findings of
9 the Court, provides some evidence that would corroborate that. He bases
10 Sljivancanin's prior knowledge on written reports prior to the 18th of
11 November, 1991, his emphasis on the necessity of prevention of any kind
12 of conflict with the prisoners who were handed over on the 18th of
13 November, that is to say, two days prior to what had happened, then
14 information on the events in Velepromet obtained from Colonel Vujic, his
15 knowledge about what happened in the barracks and events in Ovcara during
16 his alleged stay there, and his alleged knowledge on the withdrawal of
17 the security.
18 In relation to these points made by the Prosecution, we wish to
19 remind you, first and foremost, that the Sljivancanin Defence asserts
20 that Sljivancanin was not in Ovcara, was not in the barracks, was not
21 informed by Vujic about the events in Velepromet, and that he did not
22 have knowledge on the withdrawal of security. We presented our arguments
23 about that in detail in various paragraphs in our reply.
24 If the Honourable Appeals Chamber accepts any one of these
25 assertions made by the Defence, then the thesis on his previous knowledge
1 concerning the behaviour of members of the TO is untenable. Also, even
2 if you were to accept the findings of the Trial Chamber in this regard,
3 Your Honours, this should not at all change the conclusion of the Trial
4 Chamber that Sljivancanin, as stated in paragraphs 672 of the statement
5 [as interpreted], reasonably -- could have reasonably believed in the
6 circumstances that the TOs and the paramilitaries would be unlikely to
7 resort to killing.
8 Just a moment, please. What I've said here, it's not
9 "statement." It should say "judgement." I see that there is an error in
10 the transcript.
11 We wish to point out that the Prosecutor says that Sljivancanin's
12 concern that there would be a clash between the members of the JNA and
13 the first group of prisoners on the 18th of November and that they base
14 their complaint on that, and it was Karanfilov and then the security
15 followed, so if Sljivancanin had reason for a concern, this concern not
16 to have any kind of conflict occur, then it has to be established what it
17 was that actually happened because that also constitutes Sljivancanin's
18 awareness of the possibility of killings in Ovcara on the 20th of
19 November and the functioning of the JNA.
20 On the 18th of November, everything functioned impeccably. On
21 the next morning, the prisoners were transferred from Ovcara to the
22 Mitrovica prison without any incidents whatsoever. We wish to point out
23 that this is the same security, at the same place, with the same group of
24 prisoners, roughly, like two days later, when the crime that you are
25 dealing with here today actually occurred.
1 After this security provided on the 18th of November,
2 Sljivancanin only could have been aware that there was no danger of a
3 conflict and that the members of the military police of the 80th
4 Motorised Brigade were, indeed, possible of providing security in that
5 facility for such a large number of prisoners.
6 Also, according to the judgement, the members of the JNA
7 prevented the entry of members of the TO and paramilitaries in the area
8 of the hospital on the 19th of November. That is paragraph 184.
9 Then the crimes that the Trial Chamber established had taken
10 place in Velepromet, if they're not viewed as an isolated incident, but
11 within the context of the sources of knowledge as to whether it could
12 have reasonably been assumed that killings would occur at Ovcara, this
13 leads to a completely different conclusion from that that is drawn by the
14 Prosecutor. The members of the JNA in Velepromet prevented crimes
15 through their activities. Obviously, in that facility that was under the
16 Territorial Defence, when a large number of civilians arrived on the 19th
17 of November, 1991, there was confusion and crimes did take place.
18 Obviously, like in the first moments when the prisoners arrived in the
19 barracks and at Ovcara on the 20th of November, the present members of
20 the JNA at first did not react appropriately. However, that cannot be a
21 conclusion that would indicate the passivity of the JNA in relation to
22 possible killings.
23 It can clearly be established from the findings of the Court that
24 through any activity of the members of the JNA -- that all activities of
25 the members of the JNA led to the withdrawal of TO members or, rather,
1 that they refrained from any further assaults. This is indicated in the
2 findings of the Trial Chamber in several paragraphs in relation to
3 Velepromet; for example, when a JNA officer appeared, the attacks against
4 the prisoners stopped; that's paragraph 163. When another officer of the
5 JNA arrived, he took the members of the Territorial Defence away and they
6 did not -- they could no longer attack Witness Vujic. That is
7 paragraph 171. That means that the bus managed to leave when the JNA
8 intervened without further obstruction.
9 Then in the evening hours, certain prisoners were transferred to
10 the prison in Sremska Mitrovica with the guards of the JNA;
11 paragraph 168. There was an identical situation at the barracks. The
12 attacks of the TO and paramilitaries and the alleged passive behaviour of
13 the JNA in barracks at first could not be viewed in an isolated manner.
14 This is most tellingly demonstrated by the -- by paragraph 216 of the
15 judgement that the OTP does not challenge; that is to say, that 30
16 minutes after the bus arrived in the barracks, there was order
17 established when the military policemen of the JNA removed the members of
18 the TO and the paramilitary forces from the compound of the barracks.
19 The Prosecution witnesses, prisoners from the bus, testified,
20 stating that JNA soldiers did not allow anyone to enter the bus, and this
21 was testified to by P-012 on page 3732; Dodaj, page 5598; then Witness
22 Karlovic, then Witness P-030, page 9741. Karlovic confirmed that at that
23 moment while he was on the bus, he felt safe, since JNA security was
24 there; that is transcript reference 6335. Witness Berghofer said that he
25 was not mistreated in the barracks, and the conclusion of the Trial
1 Chamber, in paragraph 216, supports this testimony.
2 It is clear that the JNA, through its efficient action, managed
3 to remove the members of the TO and paramilitaries from the bus and the
4 barracks and to establish full control over their security. This is the
5 information that Sljivancanin received from Vukasinovic, his deputy, and
6 that the Trial Chamber refers to in paragraph 374 of the judgement. The
7 same conclusions have to be made in relation to the events in Ovcara
8 during the course of the afternoon. Although the security at first did
9 not react in an appropriate manner, the further sequence of events and
10 conclusions of the Trial Chamber show that the security was effective and
11 efficient in relation to the lives of the prisoners, protecting the
12 lives. I would like to underline that.
13 When Captain Vezmarovic arrived, the commander of the military
14 police or the brigade that provided security for the hangar, all persons
15 except for the prisoners and security were removed from the hangar. The
16 Trial Chamber says in paragraph 265: It was only members of the military
17 police that remained in the hangar. The witness Vezmarovic testified
18 himself, and my colleague Mr. Domazet also referred to his testimony, and
19 we consider that to be very important; namely, that through his orders,
20 he fully established control in the hangar - transcript reference 8421,
21 line 19 - and that is when, in his view, the security started functioning
22 in a normal manner, and then he repeated again that from then onwards,
23 the situation was under control; 8568, line 15 is the transcript
25 The conclusions of the Trial Chamber in paragraph 620 that we
1 already mentioned is unequivocal -- are unequivocal. This paragraph
2 states the JNA was, in the main, a disciplined military force with a
3 strong leadership. Then, it says, the presence of JNA guards at Ovcara
4 that day had provided effective restraint against the members of the TO
5 and paramilitary forces.
6 And, finally, fundamentally in relation to the topic that we are
7 discussing, the withdrawal from Ovcara of the only remaining JNA soldiers
8 guarding the prisoners of war had an immediate and direct effect on the
9 commission of the murders that followed. This thesis, expounded in the
10 judgement, is fully supported by the OTP because they refer to it in
11 their own appeal, as we've already said at the very beginning. The
12 Prosecutor cannot consider some findings from the judgement good in the
13 case of one accused person and bad in the case of another person; the
14 very same findings, that is. The Prosecution did not challenge the
15 findings of the Court that are directly related to that paragraph, and
16 I'm referring to paragraph 658. The Trial Chamber says, at the most, he
17 could have been aware that crimes might be committed if the TOs and
18 paramilitaries were allowed access to the prisoners of war without proper
19 security, and that's what I underline, "without property security." The
20 OTP did not challenge those findings of the Trial Chamber either. I wish
21 to conclude this part of my remarks.
22 Not through a single one of their arguments did the OTP show that
23 the Trial Chamber erred when they established, in paragraph 672 of the
24 statement, that Sljivancanin reasonably could have believed in the
25 circumstances that the TOs and paramilitary would be unlikely to resort
1 to killing. On the contrary, through their arguments, the OTP, and
2 supporting the findings of the Trial Chamber from paragraph 620, showed
3 themselves how right these findings of the Trial Chamber were.
4 As I continue, I'm going to present our position in relation to
5 question number 3. The question of the Appeals Chamber was: What is our
6 position about the time when Sljivancanin found out about Mrksic's order
7 to withdraw? Our response is simple. Sljivancanin at no point during
8 the relevant period in the indictment did not find out about the decision
9 to withdraw security from Ovcara. This position of the Defence was
10 accepted by the Trial Chamber in its judgement. The Chamber
11 specifically, in its findings in paragraph 661, provided all arguments
12 which counter the construction of the Prosecution. The Trial Chamber
13 established, I quote:
14 "There is no indication in the evidence that Veselin Sljivancanin
15 was at Negoslavci at the time the order was first given by Mile Mrksic."
16 He could have been informed by other means, but this is merely
18 The Prosecution does not dispute in its appeal the assertions
19 from paragraph 661 of the judgement. This entire paragraph speaks about
20 the findings of the Trial Chamber, which completely differently evaluate
21 evidence from the current attempt by the Prosecution. The Prosecution
22 now, especially in its reply, is doing what -- is constantly repeating
23 that it is unacceptable to do something in the appeals procedure, and
24 that is to make its own evaluation and interpretation of the findings of
25 the Trial Chamber which are contrary to those same findings. All the
1 arguments of the Prosecutor are practically an attempt to take the
2 conclusion about the knowledge of Sljivancanin or awareness about the
3 withdrawal of the security be derived from an additional or subsequent
4 assessment of the evidence that has already been evaluated. The
5 Prosecution is trying to base its assertions on the fact that it will
6 draw its conclusions on the basis of indirect evidence and conclusions of
7 the Trial Chamber that talk about completely different facts, and thus,
8 they claim that Sljivancanin had to have known about the decision to
9 withdraw the security, because -- so this is something that cannot be
10 substantiated in the findings of the Trial Chamber.
11 The Defence asserts that his knowledge should be based on his
12 duties to the prisoners and not about when the security was withdrawn.
13 That is why the Trial Chamber has found that Sljivancanin's
14 responsibility stopped with the withdrawal of the security detail. So
15 the position of the Defence is that that finding of the Trial Chamber
16 cannot substantiate the assertions of the Prosecution. Thus, the Trial
17 Chamber established when his duty towards the prisoners of war stopped
18 and not whether he knew about the withdrawal.
19 The Prosecutor said that Sljivancanin found out about the
20 withdrawal of the security that evening at Negoslavci when he returned
21 there, but Vukasinovic, as he testified, or Borisavljevic, neither of
22 them testified that at that time when they were in touch with Vukasinovic
23 and Sljivancanin was it known that the security was withdrawing.
24 [Defence counsel confer]
25 MR. LUKIC: [Interpretation] There were no conversations that the
1 security was withdrawing, and there was nothing to indicate that there
2 was information that they were aware, either of them, that the security
3 was withdrawing. Vukasinovic and Sljivancanin both testified that
4 Vukasinovic told Sljivancanin only what was happening at Ovcara during
5 the time he was there, about which Mrksic was subsequently informed as
7 The Trial Chamber established that it would be pure conjecture
8 that Sljivancanin found out about the decision of the withdrawal not when
9 it was reached, but also in any other way, and the Trial Chamber
10 evidently had this in mind, as well, when it reached that conclusion,
11 which now the Prosecution is attempting to interpret differently.
12 According to the Prosecutor, Sljivancanin admitted that he had discussed
13 the outcome of the SAO government meeting, which included references to
14 the transferring of custody of the prisoners of war. What Sljivancanin
15 heard from Mrksic was quoted by the Prosecutor today, and this is his
16 testimony in transcript pages which have been quoted. The content of
17 Sljivancanin's testimony is unequivocal. There is no reference about the
18 information that Mrksic or anyone else ordered the withdrawal of the
19 security from Ovcara. From his testimony, it can be established what we
20 noted in paragraphs 213 and 214 of our response, and that is that
21 Sljivancanin was not concerned because he had received information that
22 the police was there, the commander and the unit. This is what he
23 testified, to the letter, during the examination.
24 When the Prosecutor received this answer, in continuing its
25 probing about the conversation with Mrksic, the Prosecutor did not seek
1 further clarification, nor did they dispute that part of the testimony,
2 and this is on pages 13983 to 13990.
3 Now, if we look at the construction that the Prosecution now is
4 trying to assert, then we can also present our position, in turn, and
5 that is that Sljivancanin had a superior commander. He didn't have any
6 reason to believe that the commander was concealing anything from him.
7 He testified on a number of times and, also, the Trial Chamber
8 established that the commander was fully informed and was making
9 decisions pursuant to that information.
10 Paragraph 389 of the judgement, to which the Prosecutor refers in
11 footnote 199 of their appeal as a reference, which should corroborate
12 that Sljivancanin knew about this decision, does not actually mention at
13 all that Sljivancanin knew about the withdrawal of the security.
14 Your Honours, according to what Sljivancanin said, or in the
15 words that Sljivancanin used, you cannot find the meaning that those
16 words do not contain. That is precisely what the Prosecution is
17 attempting to do right now, to interpret the evidence and the conclusions
18 of the Trial Chamber in their own way.
19 The Defence must underscore here that Sljivancanin was available
20 to the Prosecution for cross-examination for four days and that the
21 Prosecutor could have asked him about any nuance and explanation about
22 their testimony arising from the examination-in-chief, including his
23 conversation with Mrksic. The Prosecutor questioned him in detail about
24 that particular conversation, but there was no mention or no question of
25 hearing what Sljivancanin said in response to this particular question
1 that they are now trying to interpret in their own way. The Trial
2 Chamber could not have based its findings on suppositions. In the
3 situation when one could draw several conclusions or a number of
4 conclusions from Sljivancanin's testimony, any Trial Chamber would need
5 to hold to the standard in dubio pro reo, as it mentioned in paragraph 11
6 of the judgement. The thesis of the Prosecution about the alleged
7 awareness of Sljivancanin about the withdrawal of the Prosecution is not
8 corroborated by evidence or by the findings of the Trial Chamber.
9 I would just like to also argument [as interpreted] some aspects
10 of the matter covered by Mr. Bourgon this morning. I'm just going to
11 refer to some factual matters that are actually concerned with another
12 question, and also, I would like to address a response that could be
13 prompted by some arguments brought out by the Prosecution.
14 The Prosecution links Sljivancanin's duty to act in -- according
15 to international humanitarian law throughout the afternoon, evening, and
16 night of the 20th of November, 1991, including after the decision on the
17 withdrawal of security. The Prosecution holds the view that he was
18 informed about this decision on withdrawal by Mrksic in paragraph 113 of
19 the appeal brief of the OTP.
20 In our response to question 3, we provided arguments challenging
21 this thesis because the Court did not find that Sljivancanin knew about
22 that decision at any time on the 20th of November, 1991. Therefore, his
23 duty to act in accordance with international humanitarian law after the
24 withdrawal of the security cannot stem from information he might have had
25 on the withdrawal of security. His duty to act in accordance with
1 international humanitarian law can follow from the task assigned to him
2 by Mrksic. That task was linked to the plan of transferring the
3 prisoners of war to the prison in Mitrovica, and after the plan was
4 changed, he no longer had any sort of activity assigned to him in
5 connection with that convoy.
6 It's our case that Sljivancanin was in no way involved in the
7 decision on transferring the prisoners to Ovcara. Even though the Trial
8 Chamber found that there are no elements of any criminal responsibility
9 of his in these activities, at paragraph 660, according to the Defence
10 case, the factual findings in paragraph 659 cannot be upheld, which is
11 why we provided arguments to support our case in our appeal in paragraphs
12 344 to 365 of our appeal brief. To indicate that the duty entrusted to
13 him by Mrksic was then taken from him, we shall use the arguments of the
14 Prosecutor of two days ago, which we have presented in our closing brief.
15 The Trial Chamber clearly found that all orders, reports, and
16 actions, after the government session, concerning the further direction
17 or location of security and security itself for the prisoners of war,
18 were made bypassing Sljivancanin. Mrksic withdrew the decision on
19 transferring the prisoners to Mitrovica, and I quote the findings of the
20 Trial Chamber in paragraph 607 of the judgement. Then Colonel Mrksic
21 issued a decision that the prisoners be taken to Ovcara, and he carried
22 it out through the staff of the command of Operative Group South in
23 Negoslavci; paragraph 305. Let me remind you that at that time
24 Mr. Sljivancanin was in hospital -- in the hospital.
25 Colonel Mrksic ordered Captain Susic to secure the buses in the
1 barracks; paragraph 298. Lieutenant-Colonel Panic went to Ovcara to
2 convey information to Mrksic about what he had seen there; paragraph 307.
3 Lieutenant-Colonel Vojnovic informed Lieutenant-Colonel Panic on the
4 measures he had taken in Ovcara in paragraph 309. The commander of the
5 80th Motorised Brigade informed the Chief of Staff of Operations Group
6 South on the spot. These are the findings of the Trial Chamber. Major
7 Vukasinovic briefed Colonel Mrksic on what had happened at Ovcara.
8 That's paragraph 311 of the judgement; and finally, in paragraph 661, the
9 Trial Chamber says that there is no evidence on the involvement of
10 Sljivancanin in the withdrawal of security from Ovcara. Therefore,
11 Mr. Sljivancanin's duty in relation to the prisoners of war ceased when
12 the original task he had been assigned by Colonel Mrksic was changed.
13 And, finally, in answer to the claims put forward by the
14 Prosecutor today, if the Appeals Chamber should find that Sljivancanin
15 was at Ovcara as established by the Trial Chamber, we shall ask what he
16 could have seen there, and in relation to any possible murders, because
17 this is the topic addressed by the OTP, he might have seen his superior
18 officers there making decisions on security; Lieutenant-Colonel Panic and
19 Lieutenant-Colonel Vojnovic. The hangar was in their zone of
20 responsibility. At that time, no one could have foreseen that there
21 would be any murders, and his actions, as the Prosecutor suggests, and
22 his presence in front of the hangar could have had no effect on the later
23 commission of murders.
24 In relation to the arguments put forward by the Prosecution today
25 as to what measures Mr. Sljivancanin might have taken, if the danger that
1 the prisoners of war might be murdered came into being after the
2 withdrawal of the security, as established by the Trial Chamber, and as
3 we have seen, the OTP accepts this in their arguments, then we might ask
4 how the measures suggested by the Prosecutor could have prevented the
5 murders, and how could, as Ms. Brady said, that Sljivancanin might have
6 transferred the prisoners to another location, how could this have
7 prevented the murders if, after that, somebody issued the order that
8 security withdrawn from this other location or, as she suggests, he might
9 have asked that security be reinforced by bringing in more policemen and
10 murders might take place when the security withdrew? What sort of link
11 is there between this bringing in of vast numbers of military policemen
12 or other forces to protect the prisoners if someone later on made the
13 decision that all these guards and the security be withdrawn, or if he
14 took measures to chase away all the Territorials and paramilitaries from
15 around the hangar and then somebody withdraw security?
16 According to the case supported by the Trial Chamber and the OTP,
17 the withdrawal of security ensured the unhindered access to the prisoners
18 by the Territorials and the paramilitaries, which led to the murders.
19 The duty to respond and to prevent any possible murders, if it became
20 certain that there was a danger of murder after the withdrawal, this can
21 be viewed only in relation to the decision to withdraw security. As we
22 have shown, the Trial Chamber did not find that Sljivancanin had any
23 knowledge of that decision.
24 Your Honours, I have concluded our arguments. We will not
25 address any issues related to sentencing, as all this is contained in our
1 written submissions, and we have also made in writing our submissions in
2 response to the Prosecution brief as relates sentencing, and I am at your
3 disposal to answer any questions Your Honours might have.
4 JUDGE MERON: Thank you, Mr. Lukic. Questions, questions?
5 In this case -- sorry, there are no questions, and thank you for
6 your argument and for completing it in a timely fashion.
7 MR. LUKIC: [Interpretation] I would only, as this is my last
8 chance to address you, wish to take this opportunity on behalf of all the
9 Defence teams to thank you for giving us this opportunity to address you
10 and present our arguments, to thank all the participants in the
11 proceedings, and also to express our gratitude to the interpreters
12 because I know what a hard time they had today, trying to keep up with
13 our arguments.
14 Thank you very much.
15 JUDGE MERON: Thank you, Mr. Lukic, for your kind words, and we
16 will now move on to the Prosecutor, Ms. Brady. You have 45 minutes.
17 Following on the salutary example set by the other party, you might
18 prefer not to use all of them, but it's up to you.
19 MS. BRADY: Thank you, Your Honour. We'll definitely heed your
20 words, or we'll try to.
21 Your Honours, I can be quite brief in reply to some of the points
22 that were made this afternoon by Mr. Lukic when responding to the
23 Prosecution's second ground of appeal concerning the aiding and abetting
24 of murder.
25 I will just make a few short points, and then I believe that the
1 majority of this reply will be used by my colleague, Mr. Marwan Dalal, to
2 make some submissions in response to the Article 5 arguments that we
3 heard from Mr. Bourgon.
4 On the question, firstly, of Mr. Sljivancanin's knowledge in the
5 afternoon, on this point we fully realise that this issue is not about
6 merely did he know that the TOs were capable of committing murders. That
7 as much we know as a Trial Chamber finding. But we say, in effect, that
8 it must have been clear that the JNA was unable, largely -- it was -- it
9 can be described as, on the whole, ineffective in stopping the violence.
10 Now, he points to paragraphs -- paragraphs he said we didn't
11 challenge in the trial judgement, such as paragraphs 620, 621. Your
12 Honours, we accept that this is a very nuanced point. We accept, and I
13 said in my submissions this morning, we acknowledge that the JNA was able
14 at times to get some kind of control over the situation pertaining to the
15 TOs and the paramilitaries, and, for example, at some point at the JNA
16 barracks, at some point at Velepromet. But I think, Your Honours, this
17 can be best summarised -- the difficulty of the situation that was
18 clearly pertaining to Ovcara can be best summarised in, actually,
19 paragraph 625 of the Trial Chamber's findings. Those findings, of
20 course, are to be found in the Mrksic section, one could call it, of the
21 judgement, and it -- but it really -- it's a very long paragraph, Your
22 Honours. I don't have time -- or I probably don't have time at the
23 moment to read the whole paragraph to you, but this paragraph very much
24 paints the situation where the situation between the TOs vis-à-vis the
25 JNA was highly volatile. It could have been that there were lulls in
1 violence at times, but the TOs were getting back on top of the situation.
2 The JNA, as I said, was largely ineffective.
3 So when Mr. Lukic says that they were a buffer - they were his
4 words - we ask you to consider, really? Were they really a buffer? And
5 this point that we make, it is not inconsistent with any of our
6 submissions that we made in relation to Mr. Mrksic's appeal, as Mr. Lukic
7 has indicated that somehow we're running an inconsistent case here.
8 We're not.
9 Mrksic did order what we call the last remaining vestiges of
10 protection. Yes, there was some JNA there; of course. This is who he
11 ordered the removal of. But this in itself was insufficient, and then
12 Mrksic orders the last remaining vestiges of this patently insufficient
13 body, the 80th Military Police, the patently insufficient body in the
14 face of this Croat -- this determination by Serb TOs and paramilitaries
15 to harm the Croat prisoners.
16 The second point I'd like to make is regarding the evidence about
17 Velepromet. Mr. Lukic made a submission this afternoon to the effect
18 that the JNA was there and preventing crimes and so that we can't rely on
19 his knowledge that people were killed there to show that the JNA was
20 ineffective. Your Honours, for this, I point you to the evidence
21 regarding whether -- regarding the fact that the Velepromet was, in fact,
22 under guard of the JNA at the time, although the TOs were running
23 Velepromet. Clearly, Velepromet was being used as an assessment centre
24 for finding extremists and possible disguised members of the MUP and ZNG
25 by the Guards Military Brigade OB led by Borisavljevic, and in this
1 regard Sljivancanin himself testified that his subordinate,
2 Borisavljevic, a member of the Guards Motorised Brigade, had been, quote,
3 "given the task of making sure that there was sufficient order and
4 discipline there," and he personally give him that task. That's at
5 paragraph 13603 to 13607.
6 I also point Your Honours to the evidence of Vujic at transcript
7 4502, who likewise talks of the JNA being at Velepromet when these crimes
8 were happening on the night of the 19th. So I think, Your Honours, the
9 evidence is that the killings occurred that night in Velepromet. The
10 events speak for themselves as to the presence of the JNA at that time.
11 The third point I'd like to mention is the question of his
12 knowledge at 8.00 p.m.
13 reasonable conclusion, that it's inconceivable that Mrksic omitted and,
14 in fact, actively misled him to believe that the JNA in the form of the
15 80th was still at Ovcara. He refers to paragraph 661 of the judgement,
16 and Your Honours, if you go to this paragraph, again, it's a paragraph
17 which goes across two pages, it's a very lengthy paragraph, but these
18 essentially -- when you have a chance to look in detail at this
19 paragraph, these findings are essentially the Trial Chamber's findings on
20 whether he was involved in the transmittal of that order to withdraw.
21 And in that conclusion, the Trial Chamber draws the -- makes the findings
22 in Sljivancanin's favour. They do not find beyond reasonable doubt that
23 he was involved in transmitting that order to withdraw through his
24 deputy, Karanfilov.
25 Now, the Trial Chamber goes on to say, as Mr. Lukic pointed out:
1 "He could have been informed by other means, but this is merely
3 And this is precisely the point at which we're asking you to make
4 the only reasonable finding which we say is available on the evidence, is
5 that it's not a matter of conjecture. If you take the evidence and you
6 draw the inferences -- the only reasonable inferences that must be drawn
7 from that, Your Honours will be satisfied, we say, about that factual
8 conclusion which the Trial Chamber never really makes because if you look
9 at paragraph 389, that's the other paragraph which connects to this
10 paragraph 661, the Trial Chamber there doesn't make a finding in
11 paragraph 389 about whether he was told about the order to withdraw, so
12 this is where we're asking you to find that the Trial Chamber legally
13 erred as to the expiry of the duty, and then you, yourselves, will be
14 convinced beyond reasonable doubt that he must have learned of the order.
15 I also point out, and it may have been an interpretation error or
16 maybe my colleague misspoke, but he referred to Borisavljevic's having
17 testified about what he told Sljivancanin, and just to point out that
18 Borisavljevic did not testify. The only people who testified on this
19 conversation are Sljivancanin, and we have a small amount of testimony
20 from Vukasinovic. I see my friend nodding, so I think we're in agreement
21 about that point.
22 The final point I want to make is concerning the duty error. Of
23 course, our argument proceeds on the basis that he learned of the
24 withdrawal order. Our argument also proceeds on the basis that he had
25 been entrusted by Mrksic not just in terms of separating and identifying
1 the war crimes suspects at the hospital, but also for their transport and
2 security, and most of the arguments that he makes today on this duty
3 error are really trying to unseat, unpick that factual finding, and this
4 being the Prosecution's appeal, of course, we are entitled to rely on
5 that finding, that he was delegated authority, and not only that finding
6 but the one in paragraph 660, that he, in fact, was also involved in the
7 transmittal of the order to send the prisoners to Ovcara, so those two
8 findings which the Trial Chamber found in our favour, in the
9 Prosecution's favour.
10 That would conclude my submissions, Your Honours, in the reply,
11 and I'd like to now hand over to my colleague, Mr. Dalal, on the
12 Article 5 points.
13 Thank you.
14 JUDGE MERON: Thank you, Ms. Brady, and we'll be hearing
15 Mr. Dalal.
16 MR. DALAL: Good afternoon, Your Honours.
17 I will be addressing the Prosecution's reply in the context of
18 our appeal in Ground 1. Before going through my submission, I have three
19 comments to make about the issue of the timing of the attack, which was
20 raised by my learned colleague.
21 The first point is the fact that the military attack ended on 18
22 November in the finding of the Trial Chamber does not mean that the
23 attack in the meaning of Article 5 also ended, and I don't think there's
24 a dispute between the parties on this question. Indeed, the
25 victimization of the civilian population continued after the 18th of
1 November; for example, in Velepromet, where hundreds of non-Serb
2 civilians were brought from the Vukovar Hospital
3 were severely mistreated, and some were even killed, and this is at
4 paragraph 167 of the trial judgement; see also paragraphs 130, 161, 163,
5 164, and 177, where also the victimization of civilians is mentioned
6 there beyond the 18th of November.
7 The second point is to say, Your Honours, that after the
8 devastation of Vukovar and its surrounding that the evacuation of
9 civilians was voluntary and based on agreements is not to do justice to
10 the truth. There was a victor in Vukovar and its surroundings that was
11 dominating the geography and the local civilian population, the non-Serb
12 local civilian population. This population was compelled, in fact, to
13 evacuate as a direct result of the relentless bombardment of their homes.
14 They were -- they were still under attack in the meaning of Article 5.
15 And the third and last point on this subject, Your Honours, is
16 that even if we were to accept for the sake of the argument that the
17 attack in the meaning of Article 5 indeed ended on the 18th of November,
18 still the Article 5 requirements, namely, the nexus requirement, is still
19 satisfied based on the law of the Tribunal, and, indeed, crimes --
20 convictions for crimes against humanity should be entered against the
21 accused as set out in our appeal brief.
22 I now would like to move to the submission -- the prepared
23 submission which addresses your question directly.
24 Your Honours, the attack by the JNA and other Serb forces on
25 Vukovar and its surrounding had horrific consequences. The JNA attacked
1 with aircraft, artillery, tanks, and rockets; paragraph 52. 60 to
2 75 per cent of the casualties during the conflict were civilians. The
3 Vukovar Hospital
4 and electricity supply and roads were severely damaged. Your Honours,
5 kindergartens were shelled; paragraphs 466 and 468.
6 As a direct result of the JNA attack, destruction befell many
7 towns in the Vukovar area, not only in the city of Vukovar; for example,
8 the towns and villages such as Luzac, Opatovac, Stompajvci, Tolonik,
9 Trpinja, Brsadin, Petrovci, Negoslavci, and Borovo Naselje; paragraph 55.
10 Ambassador Herbert Okun, at the time UN special adviser, who visited
11 Vukovar on the 19th of November, observed the city -- observed that the
12 city was completely shattered and compared it to Stalingrad. Ambassador
13 Kypr of the ECMM, on arrival in Vukovar on 20 November, 1991, noted that
14 every house had suffered damage; paragraph 56 and Exhibit 320.
15 Ambassador Kypr of the ECMM described the attacking pattern that had
16 evolved against the non-Serb population in Vukovar and its surroundings.
17 This is at paragraph 43 and Exhibit 312, dated 8th of November, 1991.
18 There were four steps in the description of Ambassador Kypr of
19 this attack. The first one: Tension, confusion and fear is built up by
20 a military presence around a village or a bigger community and
21 provocative behaviour; B, the second step, there is then artillery or
22 mortar shelling for several days, mostly aimed at the Croatian parts of
23 the village. In this stage, churches are often hit and destroyed. The
24 third stage: In nearly all cases, JNA ultimatums are issued to the
25 people of the village demanding the collection and the delivery to the
1 JNA of all weapons. Village delegations are formed, but their
2 consultations with JNA military authorities do not lead, with the
3 exception of Ilok, to peaceful arrangements, with or without --
4 THE INTERPRETER: If the speaker could slow down, please.
5 MR. DALAL: I will slow down.
6 With or without waiting for the results of the ultimatum, a
7 military attack is carried out.
8 And the last stage of the attack: At the same time or shortly
9 after the attack, Serb paramilitaries entered the village. What then
10 follows, and this should be underscored, varied from murder, killing,
11 burning, and looting to discrimination.
12 Your Honours, Exhibit 317 is a video of an aerial view of Vukovar
13 which was tendered through Ambassador Kypr of the ECMM. It shows damage
14 resulting from the widespread and systematic attack against Vukovar and
15 its surrounding.
16 Please show Exhibit 317.
17 [Videotape played]
18 MR. DALAL: Another exhibit is Exhibit 136, which is a Sky News
19 report that illustrates some of the results of the attack. In it, we can
20 see some of the effects on the civilian population in Vukovar and
21 surrounding, including the damage to the Vukovar Hospital. We will show
22 the first four minutes and forty seconds, approximately, of the report
23 which is, in total, around six minutes and twenty seconds, which speaks
24 for itself.
25 Both exhibits, by the way, were accepted, of course, by the Trial
2 Please show Exhibit 136.
3 [Videotape played]
4 MR. DALAL: Is there a voice? There should be also a commentary
5 with it. There should be a commentary with this exhibit.
6 [Appeals Chamber and registrar confer]
7 MR. DALAL: There should be a commentary with this exhibit.
8 JUDGE MERON: Maybe in the meantime you could proceed with your
9 argument, and when the system is up, we'll go back to it, okay?
10 MR. DALAL: No problem.
11 JUDGE MERON: So proceed with your oral argument.
12 It seems to be working now.
13 [Videotape played]
14 JUDGE MERON: So what's missing, the commentary?
15 MR. DALAL: It appears to be working now.
16 JUDGE MERON: It's working, yes.
17 [Videotape played]
18 MR. DALAL: Your Honour, at the time --
19 THE INTERPRETER: Microphone, please.
20 MR. DALAL: Your Honours, at the time General Zivota Panic was
21 the commander of the 1st Military District and the overall JNA commander
22 of the fighting that took place in Vukovar area. On the 1st of April,
23 1998, a magazine from Belgrade
24 interview, he was asked the following question:
25 "You are the victor of Vukovar. Could, in the military sense,
1 that affair have been resolved otherwise, without so much destruction?"
2 General Panic's answer was very clear and included the following
4 "If you want to take a city, it is better to demolish it with as
5 few casualties as possible than have people get killed and lose the
7 This is at Exhibit 696, pages 5 to 6.
8 Indeed, Your Honours, in conclusion to this part of my
9 submission, the attack against Vukovar and the surrounding was both
10 widespread and systematic. It was not merely a military operation.
11 Civilians were faced with the worst options: death, injury, or
12 displacement. The damage covered all of Vukovar and the town surrounding
13 it. The attacking force wanted to punish the victimised civilian
14 population. For all of these reasons, the attack requirement in
15 Article 5 indeed has been met.
16 I now turn to the issue of the nexus between the acts of the
17 accused and the widespread and systematic attack.
18 Legally, the acts of the accused must be part of the widespread
19 and systematic attack. Two elements need to be established in order to
20 conclude that the acts of the accused were part of the attack. The first
21 one is an objective requirement. The acts need to be sufficiently
22 connected with the attack as opposed to being an isolated act. They need
23 not to be at the midst of this attack. They can be before or after the
24 attack; Kunarac appeal judgement, paragraphs 99 to 100; Tadic appeal
25 judgement, paragraph 251.
1 In Martic appeal judgement at paragraph 318, the Appeals Chamber
2 concluded that the close timing between the attack and the crime, and
3 given that the same perpetrated both -- or were part of the execution of
4 the attack and the crime, the only reasonable inference should be that
5 the crimes were committed as part of the attack.
6 Your Honours are also referred to Krstic trial judgement
7 paragraphs 61 to 67 and the Prosecution appeal brief at paragraph 29 to
9 In this case, the conduct of the accused is objectively part of
10 the attack. First, the Trial Chamber held that at the time relevant to
11 the indictment period, a widespread and systematic attack had occurred in
12 Vukovar and its surrounding; paragraph 472. Second, the context of the
13 conduct of the accused, including its location, is inherently linked to
14 the attack against Vukovar. Indeed, the crimes had been committed in the
15 Vukovar area by the TO and volunteers who played a significant role in
16 the attack itself against Vukovar. And, third, the crimes in question
17 are similar in nature to TO and volunteers' crimes committed during the
18 attack against civilians and prisoners of war alike; see paragraph 47 of
19 the trial judgement, relying on Ambassador Kypr's testimony that on 10
20 October 1991, Serb volunteers in Lavoc [phoen] had attacked specific
21 homes and killed 22 Croats and 1 Serb; see also paragraph 43 and
22 Exhibit 312, report by Ambassador Kypr, which I have mentioned, and also
23 Exhibit 636, page 2.
24 The second element related to the question of the nexus between
25 the acts of the accused and the attack is the awareness or the mens rea
1 element. The accused must have known that there is an attack on the
2 civilian population and that his acts comprised part of that attack, or
3 at least he took the risk that his acts were part of the attack; Kunarac
4 appeal judgement, paragraph 102.
5 In this case, Sljivancanin and Mrksic knew of the attack, of
6 course, as they were in Vukovar starting from October 1991;
7 paragraphs 465, 664, and transcript pages 13460 to 13461 regarding
9 Both Sljivancanin and Mrksic were aware of the violent and
10 lawless conduct of the TO and volunteers which was directed against
11 civilians and POWs during the attack against Vukovar and its surrounding.
12 This conduct included the killing and brutal treatment of civilians and
13 prisoners of war as well as looting and other violent and lawless
15 And now I would like to refer to some exhibits which demonstrate
16 the knowledge of the accused of the violent conduct of the TO and
17 paramilitaries, the perpetrators of the crime. The first is Exhibit 718.
18 This exhibit Sljivancanin admitted that he had read, and this is in the
19 finding of the Trial Chamber at paragraph 664. It's a report from the
20 1st Military District, and it reaches also the security organ, which is
21 Sljivancanin's unit. In it, the first page, it says that there are
22 paramilitaries, Arkan's men, that are committing unauthorised killings of
23 arrested ZNG members and arresting Croatian individuals and committing
24 certain acts against them. This is from 18th of October, 1991.
25 The second exhibit is Exhibit 636. It is directed to the 1st
1 Military District, which is the district of the OG South, and it mentions
2 at page 2 explicitly, murderous, violent conduct, albeit not necessarily
3 in the zone of both Mrksic and Sljivancanin, but they should have been
4 aware of this conduct if we also add the other reports to that. It says
5 in a clear wording:
6 "In the combat activity zone of the 1st PGMD, the main motive
7 behind the presence of several groups of different paramilitary
8 formations from Serbia
9 self-styled volunteers, is not to combat the enemy, but to loot the
10 people's property, and" - and this is the most important thing - "engage
11 in the sadistic abuse of innocent civilians of Croatian nationality."
12 Exhibit 415 is distributed order from the commander of both
13 Mrksic and Sljivancanin, Panic, the commander of the 1st Military
14 District, where he mentions the lawless conduct of TO and paramilitary
15 and asks to take action against such conduct. At page 4 of this Exhibit,
16 paragraph 8 :
17 "Every unit must fully control the situation on the territory of
18 its area of responsibility. Commanders at all levels will be responsible
19 for this. Wartime laws have not entered into force, and therefore, as
20 always, nobody has the right to retribution and other kinds of revenge
21 which some local of TO, Territorial Defence, units carried out. In
22 future, arrest those who commit any such acts and undertake appropriate
23 legal measures."
24 And this is from 18th of November, 1991.
25 The last two reports are drafted by Sljivancanin himself. The
1 first one is from 23rd of October, 1991, Exhibit 823, where he talks
2 about the TO and the volunteers' lawless conduct, in this context,
3 looting. He mentions that at the first page -- on the first page:
4 "Searches of personal possessions discovered last quantities of
5 looted items and various valuables which go to show what their primary
6 aims were."
7 And probably most importantly, a report by Sljivancanin, which,
8 also, by the way, these reports get to Mrksic, his superior -- get to
9 Mrksic, a report which is Exhibit 843 from 10 December 1991 by
10 Sljivancanin where he talks about his awareness during the fighting,
11 during the attack in the Article 5 meaning, he writes on page 2:
12 "In addition to the GMTBR, large number of volunteers also
13 participated in the fighting. The volunteers came in groups,
14 individually and with no organisation. Our unit had major difficulties
15 in receiving, checking and equipping them, and in employing them in
16 combat. A large number of volunteers arrived with party insignia, which
17 might have had some considerable effects on the order and discipline of
18 the units conducting combat tasks."
19 These reports, Your Honour, in our submission, demonstrate the
20 awareness of the violent criminal conduct of the TO, which was a constant
21 during the attack in Vukovar, and the accused, both of them, were aware
22 of this conduct.
23 There's a common theme in the criminality of the TO and the
24 attack by the JNA, which is the punishment theme. The perpetrators', and
25 that is in the finding of the Trial Chamber, motivation was indeed to
1 punish the victims, for cultural reasons, probably, but the theme of
2 punishment was clear, and the Appeals Chamber is referred to
3 paragraph 671 for the punishment theme for the attack and paragraphs 47,
4 532, 535, and 510 for the punishment theme for the crimes themselves that
5 were perpetrated.
6 In conclusion, Your Honours, the Article 5 requirement, namely,
7 the attack, the widespread and systematic attack, as well as the nexus
8 with the acts of the accused, were satisfied, in our submission, and we
9 ask Your Honours to enter convictions for crimes against humanity against
10 both accused as set out in the Prosecution appeal brief in Ground 1.
11 If you have -- unless you have questions, Your Honour, with this,
12 I would conclude my submission.
13 JUDGE MERON: Thank you.
14 MR. DALAL: Your Honour, of course, we have still one submission
15 with regard to the sentence of Mrksic in reply, unless you have
16 questions, of course.
17 JUDGE MERON: No, you have six, seven minutes.
18 MR. DALAL: Thank you, Your Honour.
19 JUDGE MERON: Thank you, Mr. Dalal.
20 MR. ROGERS: Your Honours, I will endeavour to match Your
21 Honours' need for speed, as it were, in the final six minutes and to
22 tread the thin line of brevity and eloquence that Mr. Lukic has already
24 Your Honours, in relation to Mr. Mrksic's sentencing submissions,
25 may I just say this: We in our appeal have advanced various grounds, and
1 in particular we focused upon the Trial Chamber's failure to
2 significantly address the position of responsibility that Mrksic held as
3 an aggravating feature in its assessment of the gravity of the crimes.
4 Your Honours will see, when you look at the judgement, that there really
5 is scant reference to this. They touch upon it as being material but say
6 nothing more than that. They do not specifically address it in
7 considering gravity, and in our respectful submission, given the need for
8 a reasoned opinion, they should have done, and this feature of the case
9 in relation to him is clearly one of the most significant features
10 relating to him.
11 Furthermore, they did not specifically address, other than by
12 referring to the fact there had been convictions for them, they did not
13 address the torture and cruel treatment of the prisoners during the
14 course of the afternoon. Clearly, they record that there was a
15 conviction and it happened, but it doesn't appear to have featured in any
16 significant way in their sentence, and certainly, there is no reference
17 to how or in what way they considered it affected the overall sentence
18 that was imposed.
19 And, finally, there's no indication that the Trial Chamber
20 considered the encouragement, the encouraging effect of his inactions on
21 both the torture and cruel treatment and also in relation to the
22 withdrawal on the gravity of the crimes or as an aggravating feature.
23 Again, they -- there's brief reference to it, but really nothing more
24 than that. And if they had properly considered these matters, the
25 sentence would have been significantly higher.
1 And finally, we submit that they started, effectively, from the
2 wrong place. The Trial Chamber said that it could find no comparable
3 cases to assist it, but, Your Honours, we draw your attention to the
4 Vasiljevic Appeals Chamber decision on sentence, which in our submission
5 is the a clear indication of the correct starting point for sentence in
6 relation to aiding and abetting murder and inhumane treatment. In that
7 case - and Judges Guney and Meron may recall it - you imposed a series of
8 15 years' imprisonment on a low-level perpetrator in relations to five
9 crimes of murder and two crimes of cruel treatment based upon a single
10 incident on the side of the Drina River
11 was at the lowest possible level and at which he, the accused, was also
12 at the lowest possible level. Your Honours found, in assessing his
13 culpability, that he had no intent to commit the crimes - clearly, that's
14 why he was convicted for aiding and abetting - but the reason for that
15 was there appeared to have been a very late change of heart or change of
16 mind by the principal perpetrators and that the intent to kill was formed
17 at a very late stage, and so Vasiljevic's involvement as an aider and
18 abetter was simply in escorting the eventual victims from the car to the
19 river and preventing their escape, and their murders, therefore, took
20 place. There was no evidence that he shoot at any of them. That's why
21 he was convicted as an aider and abetter.
22 Now, whilst, of course, we recognise that there are limitations
23 in the comparison of cases as has been recognised here, Your Honours have
24 said in the Celebici appeal judgement that where there are similar
25 factual and legal cases, and we submit these are similar both factually
1 and legally, although of course the rank and responsibility of the
2 accused in each case is different - one at the very bottom and, in our
3 submission, Mrksic at the very top - there clearly are comparisons that
4 could and should properly be made. As Judge Meron recognised in Galic in
5 his dissenting opinion, that a review of comparable cases can assist in
6 determining whether a sentence is "clearly out of proportion" to other
7 comparable cases. In our submission, Vasiljevic is a clear indicator
8 that the sentence for Mile Mrksic is wholly out of proportion.
9 Your Honours, having regard to Mrksic's involvement, whilst we
10 accept that he did not personally carry out the acts himself, as
11 Judge Shahabuddeen observed in Galic in his separate opinion at
12 paragraph 41, after quoting the District Court in Eichmann, that the
13 appellant engaged increased responsibility because, quote, "the degree of
14 responsibility generally increases as we draw further away from the man
15 who uses the fatal instrument with his own hands and reached the higher
16 levels of command." And, Your Honours, we submit that that is as
17 applicable in the case of an aider and abetter as it is in any other
19 Mile Mrksic was the commander of Operational Group South. He was
20 well aware of the intent of the killers, although he did not himself
21 share it, but the Trial Chamber found that he anticipated the threat,
22 quote, "would manifest itself in considerable and life-threatening
23 violence and, indeed, death." Trial judgement 621; that the considerable
24 likelihood of serious injury and murder was one that was quote "obvious
25 to Mile Mrksic," trial judgement 621. His mens rea, therefore, whilst
1 not as high, of course, as a principal perpetrator is but, in our
2 submission, a shade away from it and far different from that of the case
3 of Vasiljevic. Of course, in this case the numbers of the murders were
4 far in excess of Vasiljevic, 194, and in addition, 194 victims were
5 tortured, kept in appalling conditions with a palpable atmosphere of
6 fear, and beaten throughout the course of that afternoon and into the
7 evening of the 20th of November, 1991, for which he was also convicted.
8 Your Honours, there is a risk in this case that a sentence of 20
9 years can seem substantial, but as His Honour Judge Shahabuddeen
10 recognised again in his separate opinion in Galic, the proper question is
12 " ... not how the sentence imposed appears in absolute terms.
13 Thus viewed, a sentence of 20 years' imprisonment may appear to be
14 substantial. The question is how the sentence imposed appears in
15 relation to the sentence which is reasonably judged to be merited by the
16 gravity of the appellant's crimes."
17 Your Honours, in this case, the gravity of the appellant's
18 crimes, when compared to the bar set by this Chamber in Vasiljevic,
19 clearly demonstrates that 20 years is inadequate to reflect the totality
20 of his criminal responsibility. A mere five additional years for 189
21 other murders and cruel treatments and torture, for the encouraging
22 effect of his actions and inactions, for his position of responsibility
23 and his high mens rea in this case, shows that the sentence is manifestly
24 inadequate and one that demonstrably shocks the conscience of the
25 International Community, and we respectfully request that Your Honours
1 revise the sentence, cautious as we appreciate you will be, but this is a
2 case which demands that the sentence is increased, and for those reasons,
3 we invite you, respectfully, so to do.
4 Those are my submissions, unless I can assist you any further.
5 JUDGE MERON: Thank you very much. I take it that this completes
6 the case of the Prosecution.
7 MR. ROGERS: Yes, Your Honour, it does.
8 JUDGE MERON: In this case, I think that the tapes -- Registrar,
9 we are all right on the tapes still, aren't we? So in this case I would
10 ask the appellants, Mr. Mrksic and Mr. --
11 [Appeals Chamber and registrar confer]
12 JUDGE MERON: I will ask the --
13 THE INTERPRETER: Microphone, please.
14 JUDGE MERON: Mr. Mrksic, would you like to make a personal
16 THE ACCUSED MRKSIC: [Interpretation] I would, Your Honour, yes.
17 JUDGE MERON: In that case, go ahead, and I would appreciate if
18 you could remain within the limit of something like ten minutes.
19 THE ACCUSED MRKSIC: [Interpretation] Your Honours, I will be
21 I would like to use this opportunity to state once more my regret
22 about the victims of Vukovar, first of all, to the families of the
23 soldiers who were killed, young soldiers, fighters, officers, and the
24 citizens of Vukovar, all those who were killed; also, the fighters
25 defending Vukovar who were killed, and in particular those who were
1 killed at Ovcara. This is something that should not have happened and
2 must not have happened.
3 I can state that I did not order the military police to withdraw.
4 I went to Belgrade
5 the same way that all the previous assignments were carried out.
6 Thank you.
7 JUDGE MERON: Thank you. I take it you have finished. You may
8 sit down.
9 THE ACCUSED MRKSIC: [Interpretation] Yes, Your Honour.
10 JUDGE MERON: Thank you for your statement.
11 Mr. Sljivancanin, would you like to make a brief personal
12 statement? If so, you may do so.
13 THE ACCUSED SLJIVANCANIN: [Interpretation] Yes, sir.
14 JUDGE MERON: Please go ahead.
15 THE ACCUSED SLJIVANCANIN: [Interpretation] Your Honours, I thank
16 you, first of all, for making it possible for me to address you at the
17 end of this hearing. I also wish to take this opportunity to express my
18 gratitude to you for giving me provisional release. I abide by all your
19 decisions, and I state that I will continue doing so in the future.
20 Also, I trust that in this case as competent Judges, as in every
21 other case, you will be led exclusively by truth and justice because the
22 law cannot be just if it is opposed to truth and righteousness.
23 I addressed the Trial Chamber at the beginning of my trial and
24 also at the very end of the trial, thus taking the opportunity to state
25 what I expected from the trial. I abide by everything I said on those
1 occasions. I believe you are aware of what I said, and I do not wish to
2 repeat myself.
3 In addition to this, I testified for more than a week about
4 everything I have been charged with in the indictment. My testifying was
5 a condition I immediately put to my Defence counsel, and I state again
6 before the Court and the public everything I know about the charges
7 against me.
8 The second condition I put to my counsel was that only those
9 witnesses be called in my Defence who wished to come of their own free
10 will to testify here, and that not a single one of them must ask for any
11 protective measures. Had someone like that turned up, I would have
12 desisted from calling that witness because I did not wish any witnesses
13 to appear before the Court who are afraid of anything, and there were, in
14 fact, no such witnesses. Only public and sincere testimony can remove
15 the stain from the honour of the members of the JNA who were killed in
16 Vukovar carrying out their soldierly duties, and only the full truth and
17 not prejudices can bring peace to the families of the victims in their
19 I wish to state once more that I regret all the victims in this
20 war. I have heard many very moving testimonies in the courtroom. The
21 families of the victims have the right to know what happened, and by my
22 testimony and through my Defence, I wish to contribute to this.
23 Unfortunately, in spite of all this, even after the trial, it
24 turns out that much of the truth has been concealed.
25 I spent most of my life in the army. That army played a large
1 role in shaping my values and virtues. It taught me to be courageous.
2 Those who are courageous are not afraid of the public. They're not
3 afraid of the truth. Therefore, I hope today that you, as honest men and
4 women, because that is what Judges are, will not allow injustice to
5 prevail over justice in this case.
6 Your Honours, I am used to doing everything I do in public. I
7 did everything I did in Vukovar publicly. Some experience me as a
8 Communist wearing a five-pointed star, of which I was proud. Others saw
9 me as an aggressor. But I wished and tried to do professionally the job
10 I had been trained for, and I had taken an oath I would perform. Some
11 saw this as a sin, but I am proud of it. If it's a sin that I believed
12 in a country in, which nobody else seems to have believed at that time,
13 and that I performed the job I was bound by law to perform, then my
14 belief was my mistake, but I do not lose my faith. I have not lost it,
15 and I believe that you, Your Honours, will reach the decision that I am
16 not guilty.
17 Finally, when it has now turned out that I'm the last to address
18 you, I wish to repeat the words I said at the beginning of the trial, and
19 I hope that everyone in this courtroom will accept these words. They
20 were written by our Nobel Prize-winning writer, Ivo Andric. I quote:
21 "There is not much justice in the world, but the less justice
22 there is, of more value it is. It is slow, yes, and it is often late,
23 but sooner or later it arrives. That's why I say, rely on justice and be
24 not afraid."
25 Thank you, Your Honours.
1 JUDGE MERON: Thank you, Mr. Sljivancanin, for your personal
2 statement. You may be seated.
3 THE ACCUSED SLJIVANCANIN: Thank you.
4 JUDGE MERON: This brings us to the end of this hearing and of
5 this appeal case, and I would like before rising to thank the parties for
6 their participation, the appellants, the lawyers for both the appellants
7 and the Prosecution, and, of course, the staff, the Registry, and
8 especially the interpreters, who had a very, very difficult task and
9 performed it extremely well, and I really would like to congratulate them
10 for the level of the interpretation, which was so essential to an
11 effective hearing of this case.
12 I suggest that we reconvene at quarter to 4.00 for the status
13 conference. I understand that the Registry needs about 30 minutes to
14 change the tapes.
15 We will now rise.
16 --- Whereupon the hearing adjourned at 3.11 p.m.
17 to be followed by a Status Conference.