1 Monday, 5
2 Appeal Proceedings - Submissions
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 10.05 a.m.
6 JUDGE HUNT: Call the case, please.
7 THE REGISTRAR: This is the Celebici appeal,
8 case number IT-96-21-A.
9 JUDGE HUNT: Appearances, please.
11 MR. YAPA: May it please Your Honours, I'm
12 Upawansa Yapa, appearing for the Prosecution, with
13 Mr. William Fenrick, Mr. Christopher Staker, Mr. Norman
14 Farrell, and Mr. Roeland Bos.
15 JUDGE HUNT: For Mr. Delalic.
16 MR. ACKERMAN: Good morning, Your Honours.
17 I'm John Ackerman. I appear on behalf of Mr. Zejnil
18 Delalic, along with my co-counsel from Sarajevo, Edina
20 JUDGE HUNT: Is your client here?
21 MR. ACKERMAN: No he's not, Your Honour.
22 JUDGE HUNT: Thank you.
23 Mr. Mucic.
24 MR. KUZMANOVIC: Good morning, Your Honours.
25 Appearing on behalf of Mr. Mucic are Tom Kuzmanovic and
1 Howard Morrison.
2 JUDGE HUNT: Thank you.
3 Mr. Delic.
4 MR. KARABDIC: [Interpretation] Good morning,
5 Your Honours. I'm Salih Karabdic, attorney from
6 Sarajevo, representing Mr. Delic along with Tom Moran
7 from Houston, representing Hazim Delic.
8 JUDGE HUNT: Thank you.
9 And for Mr. Landzo.
10 MS. SINATRA: Good morning, Your Honours.
11 I'm Cynthia Sinatra, and along with me is Professor
12 Peter Murphy, representing Esad Landzo.
13 JUDGE HUNT: Thank you. I propose to ask
14 each of the three appellants who are here whether they
15 can hear the proceedings in a language they
17 Mr. Mucic?
18 THE APPELLANT MUCIC: [Interpretation] Yes.
19 JUDGE MAY: Mr. Delic?
20 THE APPELLANT DELALIC: [Interpretation] Yes.
21 JUDGE HUNT: And Mr. Landzo?
22 THE APPELLANT LANDZO: [Interpretation] Yes.
23 JUDGE HUNT: I don't propose to ask you that
24 each day, but if you have any problem in hearing,
25 please don't hesitate to let us know.
1 JUDGE BENNOUNA: Mr. President, we have some
2 problems with the French translation.
3 JUDGE HUNT: Would you check that, please.
4 Yes, Mr. Yapa.
5 MR. YAPA: Your Honours, before the arguments
6 commence, may Your Honours be pleased to give me
7 permission to mention three matters. First is in
8 respect of the request that Your Honour made at the
9 last Status Conference about the confidentiality of any
10 documents, any material in the Prosecution response
11 brief, and we have already informed that there aren't
12 any documents or any material that we wish to have
13 marked confidential or protected in the response brief,
14 and we have indicated that the response brief could be
15 made a public document.
16 The second matter, Your Honours, is we have
17 already handed over an outline of the argument that we
18 propose to present in the course of the proceedings.
19 May I be permitted to hand over copies of the outline.
20 It is only a bare outline, but we feel that it may
21 assist my learned friends and also Your Honours, with
22 great respect, in following the argument we propose to
24 JUDGE HUNT: This represents only some sort
25 of summary of the material you've already filed.
1 MR. YAPA: It is. It may be termed a summary
2 of the summary, but we have given the order of argument
3 and made reference to the pages of the brief where the
4 arguments are taken up.
5 JUDGE HUNT: Thank you.
6 MR. YAPA: The third matter, Your Honour, is
7 in respect of an oral motion that we intend to make
8 before Your Honours in regard to certain confidential
9 documents which we propose to utilise maybe in the
10 course of the proceedings or in the future.
11 The presentation will be made by Mr. Norman
13 JUDGE HUNT: Thank you.
14 MR. FARRELL: Good morning, Your Honours.
15 JUDGE HUNT: Mr. Farrell, the motion or the
16 documents we've had so far have all been filed on a
17 confidential basis. What is the basis of the need for
19 MR. FARRELL: Thank you very much, Your
20 Honour. First of all, we've reviewed the documents and
21 the documents don't contain any reference to any
22 confidential witnesses that were made confidential
23 witnesses during the trial, so that certainly isn't a
25 Secondly, one of the reasons is the documents
1 have not been filed with the Court. Obviously, that
2 doesn't preclude their use as public documents, but it
3 was just out of an abundance of caution, in light of
4 the fact there are certain allegations that will made
5 in a tentative form or in the preliminary form in light
6 of the fact that the documents haven't been proved.
7 The authenticity of the signatures haven't been
8 proved. Of course, that will be something if we're
9 successful, and file the documents will be done at
11 So it's the simple fact that there are
12 allegations that will be made as to their relevance,
13 and as the documents have not been filed as matters
14 before this Court, and as they contain allegations
15 which relate to the accused, more out of an abundance
16 of caution for the accused than the Prosecution, we
17 tender them originally as confidential.
18 In terms of their actual content, Your
19 Honour, there's nothing in there that the Prosecution
20 is concerned about per se.
21 JUDGE HUNT: Allegations are made every day
22 in courts. It doesn't mean they've been proven.
23 MR. FARRELL: That's fair enough, but maybe
24 the difference is that we haven't even made a decision,
25 to be frank, yet whether we're proceeding with filing
1 the documents. So until the documents are before you
2 on an actual motion for them being tendered before the
3 Court, that was the only distinction that the
4 Prosecution made, though I accept your position.
5 JUDGE HUNT: It's very difficult for us to
6 deal with anything if you haven't made up your mind
7 yet, Mr. Farrell.
8 MR. FARRELL: Well, with respect, part of the
9 difficulty in making up our mind, Your Honour, is
10 actually assessing the value and the worth of the
11 documents, and that's the very reason why we bring the
12 motion. Understandably, the previous motion for an
13 adjournment of the oral hearing was denied,
14 particularly on the basis that there wasn't a
15 determination of whether the documents had any
16 relevance to the issues before the appellant Chamber.
17 As a result, with this oral motion we've
18 filed with the Court, as you're aware, Your Honour, and
19 with the Defence counsel, the documents, five documents
20 in translation, which I'm intending to, with the
21 Court's indulgence, to make submissions on the
22 relevance of these documents, simply for the purpose of
23 requesting that the proceedings not be closed at the
24 end of the oral hearing, at the end of this week, and
25 that if the Court grants it, that the Court permit,
1 within a reasonable period of time, the filing of
2 written submissions on the documents solely for the
3 purpose of determining their admissibility under Rule
4 115. And if they are admissible under Rule 115 and
5 they could have affected the verdict, that they then
6 are considered by the Court for the purposes of
7 remitting the matter back to the Trial Chamber.
8 Essentially the standard application for fresh
9 evidence, or new additional evidence under Rule 115,
10 Your Honour.
11 JUDGE HUNT: Well, is the only basis upon
12 which you're addressing us, upon which you're
13 addressing us at the moment, is that you want the
14 matter kept open; you're not going to argue that they
15 should be admitted as fresh evidence or that they
16 should be taken into account, but you want to be able
17 to argue at some subsequent stage that we should take
18 them into account on one basis or the other?
19 MR. FARRELL: That's basically the summary of
20 it, yes.
21 JUDGE HUNT: There is, of course, a third
22 situation you may like to consider: that they be
23 relevant, if they are relevant, only to a
24 reconsideration of the evidence rather than as a fresh
25 evidence point. If a matter is being reheard, as it
1 were, in the Appeals Chamber, as I understand it, it
2 would be heard upon the current state of the material
4 MR. FARRELL: I'm sorry, Your Honour. Maybe
5 I'm --
6 JUDGE HUNT: Well, if you fail to get them in
7 as fresh evidence --
8 MR. FARRELL: Correct.
9 JUDGE HUNT: -- and nevertheless persuade us
10 that we should reconsider this issue of command
11 responsibility about Mr. Delalic, then we would have to
12 reconsider it on the material which is presently
13 available, would we not?
14 MR. FARRELL: Yes. Absolutely. The purpose
15 of the argument this week is to demonstrate the errors
16 of law or errors of fact, and that this is a subsequent
17 argument. And in fact, if we are correct, if we do
18 file them and if they do meet the Rule 115 standard,
19 the approach would be that if it could affect the
20 verdict or demonstrate under Tadic that the verdict was
21 unsafe, then presumably the appropriate remedy would be
22 that a new trial should be ordered.
23 JUDGE HUNT: That's something which we can
24 consider at a later stage, but at this stage there is
25 nothing wrong with us proceeding with the Prosecution
1 appeal in relation to Mr. Delalic. And all you want us
2 to do is to decide to leave your options open; is that
4 MR. FARRELL: That would be fair enough.
5 JUDGE HUNT: Well, what would you like to say
6 in relation to that very narrow issue?
7 MR. FARRELL: Thank you very much. As I've
8 indicated, there are five documents, Your Honour, that
9 were placed before you, and I understand they've been
10 given to Defence counsel as well. They include both
11 the original version, which is the Serbo-Croat version,
12 and a translation.
13 JUDGE HUNT: We don't have the original. We
14 only have the translation.
15 MR. FARRELL: Sorry. Just one moment, Your
16 Honour. My apologies.
17 If I could seek the assistance of the usher.
18 Thank you, sir.
19 These are the complete versions of both, Your
21 The reference to the documents obviously has
22 to at least meet some type of minimum threshold, the
23 threshold being that they are of significant relevance,
24 or potential relevance, in fact, to the matters before
25 you, that they relate to the issues regarding the
1 culpability of the appellants such as there is a basis
2 for granting the adjournment. So I will take the steps
3 of going through them very briefly just to indicate the
4 relevance or the potential relevance.
5 The first document which is before you,
6 document number 37 -- I should indicate that the
7 document number, Your Honours, doesn't indicate --
8 isn't specifically defined in relation to those matters
9 that have been indexed or translated. This is a number
10 the Prosecution gave to the documents when they arrived
11 in the office.
12 Document 37 is July 18th, 1992. You'll see
13 from the original that it's a draft order, with
14 apparently handwritten corrections on it. At the end
15 of the draft order it's signed by apparently
16 Mr. Delalic, with the name written in as to Commander
18 If you look at the document itself, it's
19 dated July 18th, 1992, and the document indicates in
20 the first sentence that it's on the basis of the
21 appointment made by the Main Staff of the Bosnian armed
22 forces, then it gives the --
23 THE INTERPRETER: Could the counsel please
24 slow down when reading, for the benefit of the
25 interpreters, please.
1 MR. FARRELL: My apologies to the
3 JUDGE HUNT: That's not the first time that
4 it's been said to you, Mr. Farrell, so please keep it
5 in mind.
6 MR. FARRELL: I'm fond that you remembered.
7 If I can begin by reviewing the document
8 again. It's dated July 18th, 1992. The document
9 reads, in the first sentence:
10 "On the basis of the appointment made by Main
11 Staff BH armed forces, number 02/349-343, from 11 July
12 1992, and the order with the force of law of BH armed
14 And then the next line states, in capital
15 letters: "I hereby appoint ..." And then it states,
16 "For the duties in TG-1 Konjic the following
18 And I'd simply ask you to note, Your Honours,
19 that the first one is an individual by the name of
21 If you turn to the second part of the
22 translation, you'll see that about two thirds of the
23 way down, it says -- just more than half down, I'm
24 sorry, "Assistant to commander for moral education
25 Smajo Prevljak." And then three places below that, the
1 appointment of the supervisor of the regional prison in
2 Celebici, Zdravko Mucic.
3 In the Prosecution's submissions, the
4 potential relevance, assuming that the document is
5 accepted, is first of all the date of the letter is
6 July 18th, 1992; and the letter, apparently signed by
7 Mr. Delalic, demonstrates his knowledge of an order on
8 July 11, 1992. The position of the Defence at trial
9 was that the accused at trial, Mr. Delalic, had no
10 knowledge of the order until sometime after July 27, as
11 he was carrying out operations on Mount Igman, and that
12 he didn't actually take over any responsibility until
13 July 30th in relation to the -- his role in all the
14 formations. And this was found by the Trial Judge.
15 This document, if accepted, potentially
16 demonstrates that in fact that's not the case, that
17 Mr. Delalic clearly took over as commander prior to
18 July 30th, that he is aware of his appointment, at
19 least on July 18th, and that as a result he takes
20 actions regarding the appointment.
21 The second demonstrable relevance is that in
22 the judgement and the position of the Defence of
23 Delalic at trial, as quoted in the judgement at
24 paragraph 674, is that Mr. Delalic had no knowledge as
25 to when and how Mr. Mucic became a warden of the
1 prison. Well, with respect to that position at trial,
2 it appears it's directly contradicted by this document
3 in that if this document is accepted, it appears, on
4 the face of the document, that Mr. Delalic is actually
5 appointing Mr. Mucic as the regional prison commander
6 of Celebici, and, importantly, it's for duties in
7 Tactical Group 1 in Konjic. So not only is he
8 appointing Mr. Music; it appears, from the face of it,
9 that there is some evidence from which to conclude that
10 these are duties within the command of Tactical Group
11 1, something that the Defence has alleged and the Trial
12 Chamber has found, that there was no relation between
13 Tactical Group 1 and the prison.
14 Thirdly, I would note that there appears --
15 once again this is all on the face of the document, and
16 I appreciate that the Defence may, if they are filed,
17 refute them, but on the face of the document it says
18 that for the duties of Tactical Group 1 there's an
19 appointment of -- excuse my pronunciation -- Mr.
20 Ceravac, which is number one, assistant to the head of
21 staff for operative educational work.
22 You'll recall that in July of 1992,
23 Mr. Delalic signed some documents -- these are release
24 documents -- and that the Trial Chamber concluded that
25 he was signing these release documents on behalf of
1 Mr. Ceravac and that Mr. Cerovac testified that though
2 he didn't have any direct control over the prison, he
3 had asked Mr. Delalic to sign on his behalf.
4 I would submit that this is clearly called
5 into question by the fact that in fact Mr. Ceravac is
6 his subordinate. He's not signing it on behalf of
7 Mr. Ceravac. The inference may be drawn from the
8 evidence that in fact Mr. Ceravac couldn't do it and,
9 as the superior to Mr. Ceravac in Tactical Group 1, he
10 took over the position.
11 These are just inferences on the face of the
12 document, I understand.
13 The last --
14 JUDGE HUNT: Have you got a paragraph
15 reference to the judgement there?
16 MR. FARRELL: For Mr. Ceravac? No, I'm
17 sorry, I will have to get it for you. If you don't
18 mind, I'll continue until I can. I'll try and find
19 that as I'm going along, Your Honour.
20 The last point to be made with respect to the
21 first document is that you will recall that the release
22 orders that were signed by Mr. Delalic, there were
23 three of them in July, and the first one was on July
24 17th. The second one, as I recall, for Dr. Grubac, was
25 the 22nd of July, and the third one for Witness P,
1 you'll recall, was on the 22nd of July as well.
2 The Trial Chamber finds that Mr. Delalic was,
3 in fact, a coordinator during this time because he
4 didn't take over the position as Tactical Group 1
5 commander until after July 27th, presumably the 30th of
6 July. That being the case, they accept that he was
7 signing for the head of investigations for these
8 release orders and, therefore, had no authority
10 If you look at this draft order, it's dated
11 July the 18th. This is around the same time as the
12 first release order was signed and certainly prior to
13 the signing of the two release orders on July 22nd. If
14 this document is accepted, Mr. Delalic was not the
15 coordinator during this time, and he was not a civilian
16 coordinator who had no authority, and he was not simply
17 signing on someone else's behalf, although I think it
18 was the head of the investigations.
19 The inference can be drawn from this that on
20 July 22nd when Dr. Grubac and Witness P were released,
21 their release orders were signed by Mr. Delalic as
22 his -- in his capacity as commander and as the
23 commander, he has a supervisory role over the Celebici
24 prison. That being the case, the release orders were
25 not signed as a coordinator on behalf of someone else
1 that indicate no evidence of command responsibility.
2 Those are the references I wanted to make to
3 the first document.
4 In relation to your question about the
5 relation to Mr. Ceravac, I'm just going to attempt
6 to -- it appears to be at paragraph 685.
7 JUDGE HUNT: Thank you.
8 MR. FARRELL: The second document Your
9 Honours, is the one numbered 120, dated the 30th of
10 October, 1992.
11 This is apparently, a document from Smajo
12 Prevljak, who is the deputy commander for morale. It's
13 from October the 30th, 1992, and if the previous
14 document is accepted, you'll be able to draw the
15 inference, the trier of fact will, I'm sorry, that
16 Mr. Prevljak, in fact was subordinate to Mr. Delalic
17 under the appointment for the duties of Tactical Group
18 1 Konjic.
19 The letter is to the Konjic War Presidency,
20 and it's with regard to the act of the commander of
21 Tactical Group 1 from a particular date, and it's a
22 report to the War Presidency. The commander of
23 Tactical Group 1, it's clearly submitted, is
24 Mr. Delalic in October of 1992 as found by the Trial
1 The singular importance of this document is
2 found, in the Prosecution's submission, at the top of
3 the second page of the translation. The document is
4 with respect to the military investigation commission.
5 This is the commission that was to look into the
6 prisoners detained at Celebici prison for their
7 classification and potential release.
8 At the top of page 2 of the document, it says
9 the investigation of the imprisoned persons in the
10 prison of Celebici was conducted by an investigation
11 commission that was composed of experts which was
12 formed by Mr. Delalic, and the inference to be drawn
13 is, therefore, he did have control, at least in the
14 formation of this commission.
15 You will recall in the evidence, as found by
16 the Trial Chamber, that at one point in time
17 Mr. Delalic -- I think it was on June the 2nd -- was at
18 a meeting in the administration building of the
19 Celebici prison camp, and this is at paragraph 678 of
20 the judgement.
21 The witness was Witness D, and he indicated
22 that Mr. Delalic and most members of the military
23 investigative commission met on the 1st of June, 1992
24 at the Celebici prison camp.
25 Mr. Delalic, according to the witness and as
1 is stated by the Trial Chamber, "Appeared to be
2 directing the proceedings. He read out some kind of
3 order which had arrived by fax, which Mr. Delalic
4 explained to them as indicating how they were to
5 conduct the interrogation of detainees based on a list
6 of categories."
7 The Trial Chamber recognises this fact and
8 that the categories of detainees were read out from the
9 facts. This is in paragraph 681. The Trial Chamber
10 then is cautious to attribute the creation of the
11 categories, this is the categories of prisoners who are
12 to be released, to Mr. Delalic. And they further find
13 that there was no evidence that Mr. Delalic had any
14 position of authority or superiority over any of the
15 members in the investigative commission and that
16 Mr. Delalic could not exercise any authority over the
17 prison camp at Celebici, its commanders or its
18 personnel. This is at paragraph 682.
19 It appears, from the face of this document,
20 that at a minimum, he had some authority over the
21 investigation commission to the extent that, in fact,
22 the investigation commission into the prison itself was
23 formed by Mr. Delalic.
24 I'll now refer to the third document, number
25 137. This is a document which is dated the 14th of
1 November, 1992.
2 You will recall that the evidence appears to
3 be that by mid-November, sometime around November 17th
4 or thereafter, Mr. Delalic is no longer acting as
5 commander of TG-1. It's not clear, but it's in the mid
6 of November.
7 There was, of course, the document which was
8 excluded, which had some -- I'll deal with it when I
9 come to the documents that are excluded on the face of
10 the matter before the Trial Chamber.
11 This is a letter to Mr. Delalic as the
12 commander of TG-1. It's from the chief of the prison
13 guards in the Musala prison. The Musala prison, as
14 you're aware, is not the Celebici prison. It's a
15 sports hall where -- essentially the sports hall where
16 people were detained, as I understand it.
17 This is a complaint made directly to
18 Mr. Delalic, as the commander of Tactical Group 1, with
19 respect to Mr. Hazim Delic. It seems a little odd that
20 if there was no relationship between the two, that the
21 platoon commander and chief of prison guards in one
22 prison is complaining about the conduct of Mr. Delic
23 directly to a tactical group commander who allegedly
24 has no control authority and involvement whatsoever in
25 relation to people who work in the prison.
1 The complaint is not directly with respect to
2 the Celebici prison camp but with respect to the acts,
3 in other words, the conduct of Mr. Delic. And the
4 complaint is apparently, on the face of this document,
5 to his commander in relation to his conduct.
6 Therefore, the inference, it is submitted, can be
7 easily drawn that he thought that Mr. Delic is the
8 subordinate. Why else would another commander be
9 submitting a report on the conduct of someone who has
10 no relationship and is not a subordinate?
11 The document submitted indicates that Delalic
12 did have authority over Mr. Delic. It also, it is
13 submitted, indicates that Mr. Delic is, therefore, part
14 of Tactical Group 1, which is consistent with the first
15 document that I referred to which showed that the
16 Celebici prison fell under the duties of Tactical
17 Group 1.
18 I would note that on the first page of
19 translation, at the end of the page, the last full
20 paragraph starts with the words, "He was also regularly
21 boasting". That "he" is Mr. Delic, and he is boasting
22 to the prisoners, it appears in the Musala, when he
23 entered the Musala prison, and it states that he, that
24 is Mr. Delic -- I'm sorry, Mr. Delic I'm talking
25 about: "Mr. Delic was also regularly boasting to the
1 prisoners that he," Mr. Delic, "could release any
2 prisoner he wanted while I," that's the commander of --
3 the chief of prison staff, "was not able to do that
4 because he said he had the stamp of TG-1. Thus he
5 released from the Celebici prison the prisoner Ratko
6 Vujicic who had been his colleague at work. MUP, the
7 Ministry of the Interior, will take him to the prison
8 again today."
9 it's submitted that the reference here is that
10 TG-1 obviously has authority over the prison if
11 Mr. Delic is using its stamp to personally remove
12 people from the prison who are his former colleagues.
13 On the second page, in relation to a comment
14 by the chief of the prison guards about the visit of
15 the International Committee of the Red Cross, he
16 indicates that there was a complaint that he, the
17 author of this document, did not allow members of the
18 International Committee of the Red Cross to visit.
19 What he states in the letter essentially is
20 that they could visit but he was hesitant to actually
21 allow him to interview the detainees without witness,
22 which is a condition of ICRC visits to prisoners of
24 The explanation for that, not permitting them
25 to interview without witness, is given and it states
1 that he was requesting the clearance of the supervisor
2 of the prison, Mr. Mucic, or another person of Tactical
3 Group 1. It appears he's seeking clearance from people
4 who are his superiors which go up the chain to Tactical
5 Group 1.
6 Lastly, he, in the second last paragraph, the
7 last line and the last paragraph, he asks Mr. Delalic,
8 as the commander of Tactical Group 1, to prohibit
9 Mr. Delic's entrance to the premises of Musala prison
10 and also asks Mr. Delalic, in the very last sentence,
11 to review the list of released prisoners as well as the
12 whole work of the administration of Celebici prison.
13 Once again, it seems a little odd, in light
14 of the Trial Chamber's judgement, that a member of
15 another prison, who is the Chief of Staff and who is
16 involved in the detention of prisoners in the region at
17 the time, is indicating that a tactical group
18 commander, who allegedly has nothing to do with the
19 prison, actually take control over one of the
20 subordinates of the prison, give orders as to who can
21 enter the prison, grant clearance as to whether an
22 international organisation can speak with detainees,
23 prohibit Mr. Delic from entering the prison by his own
24 order, and to review the release -- list of released
25 prisoners and the administration of Celebici prison.
1 The next document is document 62. This is
2 dated August 21, 1992. It's signed by Pavo, so the
3 inference that would have to be drawn is that Pavo is
4 the -- is Mr. Mucic and the commander of the prison.
5 The first sentence states: "In respect of
6 the detention of Petko Grubac in the Celebici barracks,
7 the director of the barracks declares the following."
8 It's submitted that the inference is that
9 Mr. Mucic, Pavo, is writing a report with respect to
10 the detention and subsequent release of a detainee at
11 Celebici prison. This detainee is Dr. Grubac, which we
12 know his testimony is referred to by the Trial Chamber
13 and he's one of the persons who a release order, as I
14 recall, on July 22nd, is signed by Mr. Delalic.
15 The significance, it is submitted, is that
16 the report -- there's a report and an order. The order
17 doesn't relate to the prison, it relates to persons who
18 appear to have occupied Mr. Grubac's apartment, but the
19 significance, from the Prosecution's perspective, is
20 the report itself on the release and -- the detention
21 and subsequent release of a detainee is sent to
22 commander of Tactical Group 1. If you look at the
23 copies to be -- on the second page of the translation,
24 Your Honours, it says, "To be delivered to supervisor
25 of the prison," presumably this is Mucic copying
1 himself, the commander of Tactical Group 1, the person
2 detained himself; and the municipal secretariat.
3 It's important to note that the only military
4 body and the only body of authority addressed here is
5 to Tactical Group 1. It's not addressed to the Konjic
6 Territorial Defences or the MUP, the Ministry of the
7 Interior, the police. And clearly, in the
8 Prosecution's submission, there is an inference that
9 could be drawn, if this document is accepted,
10 consistent with the others that the reporting mechanism
11 and the command structure goes to Tactical Group 1.
12 The last document which I refer to and which
13 is before you is that dated August the 7th, 1992. This
14 is not in direct relation to the prison itself but what
15 it demonstrates is, in the Prosecution's submission,
16 the link between Tactical Group 1 and the Konjic
17 municipal staff of the Bosnian armed forces. This is a
18 warming, in relation to a previous order, to the Konjic
19 municipal staff of the armed forces from Mr. Delalic.
20 Now, the Trial Chamber, as we know,
21 distinguished between the role of Tactical Group 1 from
22 the activities of the territorial forces or armed
23 forces in Konjic. This appears to be on its face an
24 order by Mr. Delalic to the municipal staff of the
25 armed forces in Konjic, and, therefore, he is
1 subordinating them to himself as commander of Tactical
2 Group 1, and this goes to the role he plays in the
3 region consistent with, it is submitted, the first
5 Your Honours, I apologise for taking a little
6 bit of your time, but this is the submitted potential
7 relevance of the documents and the basis upon which the
8 Prosecution seeks the -- at least the opportunity to
9 fully review the documents. If the Prosecution, after
10 reviewing all the documents, is of the view that it
11 would have rendered, at least in the Prosecution's
12 submission, the conviction unsafe, which appears to be
13 the requirement under Rule 115 of the Tadic decision,
14 then the remedy requested is that the proceedings not
15 be closed, that there be a time period for the filing
16 of this, that if the Prosecution does not intend to
17 file a Rule 115 application, that it simply file a
18 notice with the Court indicating such and at that point
19 in time, if it does not, the proceedings will be
20 closed. Thank you.
21 JUDGE HUNT: Is your application restricted
22 to these five documents or is somebody beavering his
23 way through the documents to see if there's anything
25 MR. FARRELL: Well, I hope they are.
1 JUDGE HUNT: So there may be other documents
2 as well.
3 MR. FARRELL: These are simply a sample to
4 try and address your concerns that there was nothing of
5 relevance put before you on the previous motion, yes.
6 Thank you.
7 JUDGE HUNT: I see.
8 Well, Mr. Ackerman, we certainly don't expect
9 you to answer the point made about the relevance unless
10 you can demonstrate that everything the Prosecution has
11 said is wrong. All I think we need to determine at
12 this stage is whether we permit the Prosecution to keep
13 its options open. What would you like to say about
15 MR. ACKERMAN: Your Honour, with regard to
16 that specific question, the Rules permit the Prosecutor
17 to keep their options open. We're in a kind of a
18 procedural limbo here because if they wanted to bring
19 new material to the attention of the Appeals Chamber,
20 the Rules say that should have happened at least
21 15 days prior to the date set for hearing the appeal.
22 The other option that the Prosecution and the
23 Defence have is that within one year after the
24 judgement on this appeal to apply for a review.
25 So it seems one of those two options is what
1 is open to the Prosecutor or any of us with regard to
2 this matter.
3 I have just seen these documents for the
4 first time this morning just as you have, so I'm not in
5 any kind of position to deal with them at all. We
6 might want, later on in this proceeding, to make a very
7 short submission similar to what the Prosecution has
9 It's very clear that if these documents are
10 going to be considered at any stage of these
11 proceedings, a great deal more than just submission of
12 the documents is required because there's serious
13 question, at least in my mind, regarding their
14 authenticity, who authored them. One of them has no
15 signature at all. So there's a great deal of
16 additional information that would be necessary before
17 their content and their alleged import could be
18 considered by this Chamber or any other Chamber.
19 What I would prefer to do at this point, Your
20 Honour, is leave the matter as it stands, with the
21 possibility that we would request some time later on in
22 these proceedings for just a few moments to address the
23 Chamber regarding these matters before we depart for
24 other places. But I think it seems to me that the
25 proper way to proceed at this point is to -- for the
1 Prosecutor to simply go on with their business
2 regarding these documents, and if after the judgement
3 has been entered on this appeal they determine that
4 there's a basis for an application for review based on
5 these documents, then let them file that.
6 It's clear that whatever's done with these
7 documents, it's going to require the taking of evidence
8 from witnesses regarding their authenticity, whether or
9 not they were actually delivered, signed, things of
10 that nature. One of them has no signature, I've
11 noticed. So ...
12 JUDGE HUNT: Well, Mr. Ackerman, if we
13 deferred any decision on it, it would mean after the
14 end of the argument by the Prosecution on the command
15 responsibility issues, they would simply say, "We leave
16 our case open." It's at that stage I see the issue
18 If you have no objection to them doing that
19 so that you have the opportunity, perhaps tomorrow or
20 the next day, to address us on keeping it open
21 throughout and you have no objection to them not
22 closing their argument at this stage, then we need not
23 decide it at this stage.
24 MR. ACKERMAN: I'm not absolutely certain
25 about my position at this point, but I think my
1 position is this, Your Honour: That having not made
2 the application 15 days before the date set for oral
3 argument, that the Prosecution's remedy at this point
4 is post-judgement application for review, so that we
5 should simply close the matter at this point, the
6 arguments be heard, that the Chamber make its ruling,
7 whatever that is, file its judgement, announce its
8 judgement, and then if the Prosecution, within one year
9 after that, determines that there are documents that
10 justify review, then bring it up in the review
12 JUDGE HUNT: I'm not altogether certain that
13 you are correct on that. This would be a review, I
14 would have thought, of the Trial Chamber's decision
15 rather than of our decision.
16 MR. ACKERMAN: The Rule indicated it can be
17 either of a Trial Chamber or an Appeals Chamber
19 JUDGE HUNT: Well, we won't argue it now, but
20 there may be a problem from the Prosecution's point of
22 Well, then, you're objecting that if at the
23 end of the argument today they say, "We want to leave
24 it open," you object to that.
25 MR. ACKERMAN: Yes, I would object to that.
1 JUDGE HUNT: You had said that you wanted
2 some time to make some further submissions.
3 MR. ACKERMAN: I think that's what we would
4 like to do. As I stand here right now, I would object
5 to that, but we have just seen these. I haven't had a
6 chance to consult.
7 JUDGE HUNT: I understand, and so have we
8 just seen them perhaps a quarter of an hour before you
9 did, but at the end of the Prosecution argument the
10 issue arises. Are they entitled to say at that
11 stage, "We still want you to consider allowing these
12 documents in but we don't press for a decision on that
13 at this stage."
14 Now, if you object to that at that stage,
15 we're going to have to say whether we permit them to
16 keep their options open at least until sometime towards
17 the end of the hearing or shortly after it.
18 I understand what you say about the 15-day
19 rule. That's something that can be extended and the
20 Rules permit that if explained. I'm not suggesting one
21 way or the other which way the Appeals Chamber would
22 decide it, but they asked for an adjournment, and that
23 was refused on the basis that we thought they could
24 proceed with their appeal.
25 Now, if you still object at the close of
1 their argument, we will have to decide at that stage
2 whether we permit them to keep their options open; not
3 to admit the documents, but just to keep their options
4 open. If you want extra time to consider that
5 particular application, to keep their options open, for
6 myself, I'd be happy to give it to you. But we still
7 have to make a decision one way or the other, even if
8 to defer the decision at the end of the Prosecution's
9 argument on these grounds of appeal.
10 MR. ACKERMAN: I understand that, and what I
11 would like to do is state my position on that at some
12 later stage, probably today.
13 JUDGE HUNT: I'm hoping that the Prosecution
14 will have finished their argument on command
15 responsibility, surely before the end of today.
16 MR. ACKERMAN: I would think so. I would
17 suspect there would be a break at some point. I just
18 need to consult with Ms. Residovic a bit.
19 JUDGE HUNT: That's perfectly reasonable, as
20 long as you understand that we have to make a decision
21 one way or the other at the conclusion of the
22 Prosecution case on these grounds of appeal.
23 MR. ACKERMAN: I understand.
24 JUDGE BENNOUNA: [Interpretation] I would like
25 to add something. I would like to say something to
1 Mr. Ackerman.
2 If I understand rightly, you say that since
3 the time allowed had not been respected, the 15 days,
4 then the Prosecutor would have to ask for a review of
5 the judgement because of new facts being presented.
6 The problem is that in the situation we have
7 here, these facts come up after the judgement has been
8 given, whereas here we are at the beginning of the
9 hearing for oral applications. We are not here talking
10 about the review of a judgement that has been given, a
11 judgement that is definite, and where you have new
12 facts arising after the judgement, because the new
13 facts we have now have arisen before the judgement has
14 been given. So I would like you to have this in mind
15 when you speak later on. I'm not asking you to speak
16 about that right now.
17 JUDGE HUNT: Well, Mr. Ackerman, clearly
18 there will be a break during the course of the argument
19 on the Prosecution's treatment of the command
20 responsibility grounds. I think we are entitled to ask
21 you at the end of that break what attitude you're going
22 to take to keeping their options open.
23 MR. ACKERMAN: And I will tell you at that
25 JUDGE HUNT: Thank you very much.
1 Well, now, Mr. Yapa, who is dealing with the
2 command responsibility?
3 I'm sorry. Yes, Mr. Morrison.
4 MR. MORRISON: If it please Your Honour, you
5 will see from those documents that they are also
6 pertinent to the case of Pavo Mucic. Now, I appreciate
7 that the position of Mucic is very different from the
8 others in this case, but those documents cause us very
9 considerable concern at this stage in the proceedings,
10 and it's pertinent to the matters just raised a moment
11 ago by your honourable and learned colleague.
12 My learned friend, Mr. Kuzmanovic has tried
13 unsuccessfully to obtain documents from Croatia before
14 now, and on the face of it some of the documents which
15 the Prosecution have are exactly the sort of documents
16 we would like to have seen, not only for the appellate
17 purposes, but they would have been very useful at
18 trial. They're fundamental as far as Mr. Mucic is
19 concerned. They go not only to the basis of his
20 conviction but to the scope of his conviction, because
21 he was only convicted upon the basis of superior
22 command responsibility in respect of his command of or
23 supervision of the Celebici prison. These documents
24 are exactly germane to that. And the knock-on effect
25 in this case is enormous, because it goes to other
1 issues, other findings contained in the judgement, not
2 least the question of sentence.
3 For myself and for my learned friend
4 Mr. Kuzmanovic, we're very grateful for the Prosecution
5 for providing the samples of documents which they
6 have. We've seen five, three of which are extremely
7 germane, and we are very keen to explore the
8 possibility of their use, not simply as an adjunct to
9 this appeal, but as part of the body of the appeal
11 There are 149 other documents. We have no
12 idea at the moment what they may be. But if they are
13 of such moment to Mr. Mucic's case as three of these
14 five documents are, then the position of Mr. Mucic on
15 appeal may be fundamentally altered in two ways: first
16 in respect of what he himself can advance through
17 counsel, or potentially by the calling of witnesses
18 that we simply did not know existed until the
19 production of these documents.
20 The other thing it may do is alter the
21 Prosecution's own position as to Mr. Mucic, because
22 they've been advancing, for instance, certain dates as
23 to his supervision of the prison, and they may take a
24 different view of that when all the documents are at
25 hand. So it may be that concessions will come from the
1 Prosecution side, and I appreciate they can't even
2 begin to consider that matter until they have seen,
3 correlated, and analysed all of those documents.
4 But let me suppose for the moment that as far
5 as providence, accuracy, and relevance of the documents
6 are concerned, that the Appeal Chamber is satisfied to
7 the extent that they become admissible in these
8 proceedings in some form or another.
9 What is the effect? Are we really going to
10 have an appeal judgement based upon the facts of a
11 trial which may be easily proved to be erroneous, upon
12 a judgement which may have been reached upon the basis
13 of a lack of information or of false information? It
14 seems to me that in those circumstances the potential
15 for a miscarriage of justice is vast.
16 Now, we didn't see these documents until this
17 morning and we had no input into the Prosecution's
18 application for an adjournment of certain parts of this
19 appeal until those documents have been analysed and
20 placed before the Court. But for Mr. Mucic,
21 Mr. Kuzmanovic and I are extremely concerned that there
22 should be any further consideration of Mr. Mucic's
23 appeal as to command responsibility and as to the
24 knock-on effect of that, whatever it may be, until
25 we've had sight of all of those documents and we're
1 able to put the matters before the Court in a proper
2 and coherent way. As your learned colleague said, this
3 isn't a question of information coming to an appellant
4 court post-judgement; this is information which has
5 come to this Court pre-judgement, and it seems to me to
6 ignore it is to make ourselves hostages to very
7 dangerous fortune.
8 JUDGE HUNT: Is the basis of your remarks the
9 prospect that you too may be making an application for
10 these documents to be admitted as fresh evidence?
11 MR. MORRISON: It's quite possible.
12 Certainly in respect of three of those documents, we
13 would dearly have loved to have had them in our
14 possession. I wasn't involved in the trial. I didn't
15 come into this case until appellate proceedings were
16 virtually -- well, I came in just before sentencing.
17 But it would have made a very considerable difference
18 to the way that Mr. Mucic's appeal had been conducted
19 had, for instance, these documents surfaced a week
20 after the judgement. There would have been a very
21 different approach, I think both by the Prosecution and
22 by Mr. Mucic.
23 Now, I accept that I'm treading on toes in
24 all sorts of ways, and the last thing I want to do is
25 be the cause of adjournments and delays. But if I
1 don't raise this matter now, I'm doing no service to my
2 client. There is in this case a very real potential
3 for a very real miscarriage of justice, and now is the
4 time, with respect, to address it.
5 JUDGE HUNT: May I suggest that during the
6 adjournment -- there is obviously a great deal of
7 material which we can go on with, but during the
8 adjournment you speak to the Prosecution, hopefully the
9 Prosecution will break its usual rule and talk to
10 counsel for the Defence, and find out what the
11 timetable is likely to be for them to have all the
12 documents translated so that you know what position
13 you're going to be in.
14 MR. MORRISON: Making a submission of this
15 nature before an appellate court 18 or 19 months after
16 the judgement is as attractive as rolling naked
17 downhill in a barrel of fish hooks, as somebody once
18 said to me, but it has to be made, and whatever the
19 consequences. I think, by and large, my relations with
20 the Prosecution are good enough for them to talk to me.
21 JUDGE HUNT: Well, may I suggest you do talk
22 to them so that we're in a better position to know just
23 where we're heading. And we can nevertheless go on
24 with the appeal at this stage, bearing in mind that you
25 foreshadowing an application for an adjournment of
1 anything dealing with your client's command
3 MR. MORRISON: I'm much obliged.
4 JUDGE HUNT: Yes, Mr. Yapa. Who is dealing
5 with this particular issue?
6 MR. YAPA: If Your Honours please, the
7 argument to be taken up will be in respect of grounds
8 of appeal falling within group 1. The first matter is
9 in respect of command responsibility. That is ground 1
10 of the Prosecution's grounds of appeal. It will be
11 dealt with by Mr. William Fenrick.
12 JUDGE HUNT: Thank you. Yes, Mr. Fenrick.
13 MR. FENRICK: Your Honours, what I would
14 intend to do here over the course of approximately one
15 half hour is give you an overview of the Prosecution's
16 approach to the law of command responsibility so that
17 we would try and address a range of legal issues and at
18 the same time provide you with a complete picture of
19 the doctrine itself, as this is perhaps the first time
20 when this Chamber has addressed this range, the whole
21 spectrum of command responsibility issues.
22 JUDGE HUNT: May I just interrupt you for a
23 moment, Mr. Fenrick. In your submissions you refer to
24 the World War II cases. I know that we do have the
25 Nuremberg judgments in the library here, but I don't
1 think we've got all of the Japanese ones. If you're
2 going to rely upon any of these, we really do need
4 MR. FENRICK: Your Honour, I would be
5 referring very briefly -- well, first of all, I don't
6 expect to be making a large number of case references,
7 to be quite honest.
8 JUDGE HUNT: But you've referred to them
9 generally in your submissions, and if you want us to
10 look at this sort of thing, I'm afraid we're going to
11 have to ask you to provide copies.
12 MR. FENRICK: It's our understanding
13 everything is in the book of authorities, Your Honour.
14 Now, if I may start, first of all it's the
15 position of the Prosecution that Article 7(3) of our
16 Statute is not all by itself some kind of a code. What
17 it does is incorporate the existing law relating to the
18 doctrine of command responsibility.
19 Secondly, the existing law, or the entire
20 doctrine of command responsibility is basically rooted
21 in custom or case law. If one looks, for example, at
22 the statute for the International Military Tribunal at
23 Nuremberg, or the statute which applied to the Tokyo
24 trials, or Control Counsel Law number 10, which
25 regulated a lot of the subsequent proceedings at
1 Nuremberg, in no case is there any reference to a
2 doctrine of command responsibility. When those
3 statutory or treaty provisions refer to criminal
4 liability, essentially what they are concerned with is
5 the traditional doctrine of individual criminal
6 responsibility, referring to perpetrators and people
7 who order, incite, or aid and abet.
8 The doctrine of command responsibility, it is
9 our submission, originated essentially in an
10 application of what might be referred to as a doctrine
11 of aiding and abetting for superiors to the kinds of
12 situations which we had in the post World War II
13 period. And I think, or I submit, that we've got to
14 place a very considerable emphasis on those post World
15 War II decisions and bear in mind what they are. They
16 aren't rooted in a treaty provision, or at least not
17 rooted to a great extent.
18 Beyond the post World War II cases, what we
19 have is Additional Protocol I, which applies to
20 international conflicts, and there are two articles in
21 that Additional Protocol I: Articles 86 and 87. Those
22 two, although they have been referred to by some as
23 codifying the doctrine of command responsibility, we
24 would submit are at best a partial codification of the
25 doctrine. To a considerable extent, even to interpret
1 Articles 86 and 87, we have to pay considerable
2 emphasis to what the customary law is outside of those
3 articles, or outside of Additional Protocol I.
4 It's the submission of the Prosecution, which
5 we would suggest is essentially uncontested, that there
6 are three essential elements for command responsibility
7 for failure to act. The first of these essential
8 elements is the existence of some form of superior
9 subordinate relationship.
10 This particular element, or the
11 interpretation of this element, is particularly
12 relevant to this case in two respects. One -- and what
13 I will be doing later is talking about each of these
14 elements in turn. But just to highlight things, in
15 connection with the superior subordinate relationship,
16 there is a question of whether or not that relationship
17 applies to instances of what might be called influence
18 -- that's particularly relevant with reference to the
19 Delalic appeal -- and also with whether or not the
20 superior subordinate relationship applies to de facto
21 in addition to de jure relationships is relevant to the
22 appeal of Mr. Mucic.
23 The second element is that the superior new
24 or had reason to know that a criminal act was about to
25 be or had been committed. The interpretation of this
1 particular provision is, we submit, an important point
2 of law, which we have requested the Court to rule on,
3 specifically, what the meaning of "had reason to know"
4 is, but it is not directly relevant to the appeals of
5 any of the individual accused in this case.
6 The third element is that the superior failed
7 to take the necessary and reasonable measures to
8 prevent the criminal act or punish the perpetrator
9 thereof. It is our understanding that the meaning of
10 that particular provision is not in issue here, but we
11 shall nevertheless refer to it very briefly.
12 Now, if I may discuss the superior
13 subordinate relationship, the first essential element
14 that we have submitted exists, or must exist for a
15 command responsibility case.
16 Normally, in most cases, when the doctrine of
17 command responsibility applies, there is some kind of a
18 hierarchical relationship, a chain of command, between
19 the perpetrators or the units to which the perpetrators
20 belong and the person in command or the person holding
21 a position of superior authority. It is, however, the
22 submission of the Prosecution that this doctrine can
23 also apply to a wider range of categories of
24 superiors. It is our submission that the relationship
25 exists when a superior has effective control over the
1 persons committing the underlying violations, in the
2 sense of having some kind of material ability to
3 prevent and punish. It is also certainly our
4 submission that the doctrine of command responsibility
5 can apply to both civilian and military leaders.
6 The duty to prevent or punish arises from the
7 power to control perpetrators in a particular set of
8 circumstances as well as in certain general
9 circumstances. In particular, it's our submission that
10 a direct relationship of superior and subordinate, that
11 is, a direct chain of command between the perpetrator
12 and the superior, is not necessary. The superior may
13 have responsibility for an area in which the
14 perpetrator commits an offence.
15 For example, in the High Command in the
16 Hostages cases, both of which are referred to in the
17 Trial Chamber judgement, the military commanders were
18 held responsible in some cases because they had some
19 kind of an area or zone of occupation responsibility,
20 and they were held responsible even if they did not
21 have direct command responsibility over the units which
22 were in the area and which had committed offences.
23 Somewhat similarly, the superior may exercise
24 a substantial degree of influence over the perpetrator
25 or over the entity to which the perpetrator belongs.
1 And with reference, as substantiation for those
2 propositions, we refer to the Muto case, which is
3 referred to in the Trial Chamber judgement, and also
4 Hirota and Roechling. These cases are discussed at
5 paragraphs 355 to 363 in the Trial Chamber judgement.
6 Those cases involved people in a range of
7 different circumstances. Muto was a Japanese general
8 who was the chief of staff for General Yamashita, and
9 it was held that although Muto, or General Muto, was
10 not in a chain of command, he had, because of his
11 position as chief of staff, a substantial degree of
12 influence over what was happening in the units which
13 were subordinate to the headquarters to which he was
14 chief of staff.
15 Hirota, of course, was a Japanese foreign
16 minister, who clearly had no direct ability to --
17 certainly did not have the soldiers who were committing
18 offences subordinate to him in some kind of a chain of
20 And Roechling involved German industrialists,
21 who once again did not have a strict hierarchical
22 relationship between the perpetrators and the
23 individuals committing the offence.
24 If I might also refer to Article 87 of
25 Additional Protocol I, which talks about the duty of
1 military commanders, it says:
2 "The high contracting parties and parties to
3 the conflict shall require military commanders with
4 respect to members of the armed forces under their
5 command and other persons under their control to
6 prevent and, where necessary, suppress breaches."
7 Clearly, even the Additional Protocols
8 envisage something more than a strictly hierarchical
9 relationship for the imposition of command
11 As indicated in the Prosecution's appeal, in
12 our brief, paragraphs 3.22 and 3.27 to 3.53, the
13 Prosecution submits that the doctrine of superior
14 responsibility includes liability for a person who,
15 although not a superior in a direct chain of command
16 over the perpetrator, exercises sufficient control,
17 authority, or power of substantial influence, that is,
18 to have the material ability to prevent or punish the
19 commission of the crimes.
20 The Prosecution certainly does not suggest or
21 submit in any way that Article 7(3) includes any person
22 who exercises some influence in a given situation. For
23 example, one could easily envisage a situation where a
24 journalist has some knowledge of an offence that either
25 is about to be committed or has been committed, and
1 technically, by publicising that fact, he or she may
2 have some impact on whether or not the offence is
3 committed or whether there is punishment for it. But
4 certainly a journalist, although a person of influence,
5 would not be someone who would be scooped into this
6 substantial influence aspect of command responsibility,
7 which we submit exists.
8 If we might give another example of where we
9 would not think the doctrine would apply, it would not
10 apply to, say, military commanders when you have two
11 formations side by side, one in one area, one in
12 another, and the commander of one formation becomes
13 aware of, for whatever reasons, or doesn't become aware
14 of, offences being committed by a similar level
15 formation next door. We would certainly not submit
16 that the side-by-side commander is one who would be
17 scooped up within this doctrine of command
18 responsibility. But we would submit that if there is
19 this substantial influence, which we concede is
20 something which has got to be determined essentially on
21 a case-by-case basis, if this superior does have the
22 material ability to prevent or punish, he or she should
23 be within the confines of this doctrine of command
24 responsibility as set forth in Article 7(3).
25 And as a last observation in connection with
1 the superior subordinate relationship aspect, clearly,
2 on the basis of our case law, including, one might add,
3 the Aleksovski appeal position, a superior may be held
4 liable because he or she possesses de jure or de facto
5 authority or a combination of both. There is no
6 requirement that the authority be de jure exclusively.
7 In fact, if one just relied on de jure responsibility,
8 one could end up with ludicrous results. I believe
9 that the Queen of England, for example, would
10 technically be listed as the commander-in-chief of the
11 British Armed Forces, but one would not suggest that
12 the Queen is someone who should be held liable on the
13 basis of the doctrine of command responsibility. One
14 must look at de facto responsibility in addition to a
15 technical de jure qualification.
16 What is significant is not the title that a
17 person holds, whether they be called a commander, a
18 deputy commander, or a coordinator, or any range of
19 labels. What is significant is the actual reality of
20 their superior authority.
21 That is all I have to say, Your Honours, in
22 connection with the superior subordinate relationship
23 aspect. I would now propose to move on to the "knew or
24 had reason to know" issue, unless there were any
1 In that case, I will move on to "knew or had
2 reason to know." There is certainly no question, one
3 would submit, that someone could be held liable on the
4 basis of 7(3) if proof of actual knowledge had been
5 established, and that, of course, can be established by
6 either direct or circumstantial evidence. The real
7 issue is what is the meaning of "had reason to know."
8 Does it mean that one must prove that there is
9 information virtually in the hands of the superior or
10 does it mean something a little bit broader?
11 It is the submission of the Prosecution that
12 "had reason to know" refers to situations where either
13 the superior has information which puts him or her on
14 notice or which tends to suggest that subordinates were
15 about to commit or had committed crimes. That
16 essentially is the approach that was adopted by the
17 Trial Chamber, if I recollect accurately. And in
18 addition, however, it is the submission of the
19 Prosecution that "had reason to know" also includes the
20 situation where a superior had no such information in
21 his or her actual possession, but lacked such
22 information as a result of a serious dereliction of his
23 or her duty to obtain information of a general nature
24 within his or her reasonable access relating to the
25 conduct of his or her subordinates.
1 If I might draw the attention of Your Honours
2 to the Blaskic decision in addition to the Celebici
3 decision. In the Blaskic trial decision, in fact the
4 Trial Chamber came to a conclusion about the meaning of
5 "had reason to know" which is essentially similar to
6 this somewhat broader approach taken by the Prosecution
7 vis-a-vis the Trial Chamber in the Celebici case.
8 If I may just quote very briefly. In
9 Blaskic, paragraph 332, the Trial Chamber found that:
10 "If a commander has exercised due diligence
11 in the fulfillment of his duties, yet lacks knowledge
12 that crimes are about to be or have been committed,
13 such lack of knowledge cannot be held against him.
14 However, taking into account his particular position of
15 command and the circumstances prevailing at the time,
16 such ignorance cannot be a defence where the absence of
17 knowledge is the result of negligence in the discharge
18 of its duties. This commander had reason to know
19 within the meaning of the Statute."
20 If I may just briefly indicate what
21 essentially appears to have happened with the Trial
22 Chamber decision in the Celebici case. Essentially,
23 the Trial Chamber in Celebici, if I understood the case
24 correctly, decided that what we had, or what had
25 happened was that as a result of the post World War II
1 war crimes cases, "had reason to know," or the
2 mental -- the knowledge element required for command
3 responsibility included, as a matter of customary law,
4 sort of a "should have known" standard, a standard
5 similar to the one which we have been putting forward
6 by the Prosecution in this case. But then when
7 Additional Protocol I was drafted, for some reason the
8 legal standard was narrowed; and then, however, they
9 appear to concede that as time marched on and we had
10 the Statute of the International Criminal Court
11 adopted, then the meaning of customary law broadened
12 again. But during the particular period of time when
13 offences were committed in this case, you had a
14 narrowed version of the scope of the knowledge standard
15 as a result of the wording of Additional Protocol I.
16 When one looks at the rationale for the
17 Celebici Trial Chamber coming to that decision, they
18 certainly paid a very great deal of attention to the
19 negotiating record, to the travaux preparatoires for
20 the Additional Protocols.
21 It is our submission that, in fact, they paid
22 too much attention to that negotiating record and that,
23 in fact, it is, first of all, equally practicable to
24 interpret the provisions in Additional Protocol I in a
25 fashion which results in the same knowledge standard
1 that we have put forward here, particularly when you
2 read Articles 86 and 87 together, and even if that
3 interpretation of Additional Protocol I is wrong, and
4 we submit it is not, the customary law standard
5 continued to co-exist with the provisions of Additional
6 Protocol I.
7 If I may give a particular example to
8 substantiate that second aspect of our argument. As a
9 result of the post-World War II war crimes trials,
10 there developed essentially a doctrine that superior
11 orders was not a defence to a war crimes charge.
12 When Additional Protocol I was negotiated,
13 there was extensive discussion about putting into that
14 instrument a provision related to superior orders.
15 Eventually the negotiators were unable to agree on a
16 text. There is nothing in Additional Protocol I or
17 Additional Protocol II, for that matter, which refers
18 to the doctrine of superior orders.
19 Having said that, no one, I would submit, has
20 since suggested that well, because Protocol I didn't
21 address superior orders, all of a sudden superior
22 orders might become a legitimate defence again. The
23 old customary law continued along because there was
24 nothing in there.
25 Now, here we've got a provision addressing --
1 or two provisions addressing command responsibility,
2 after a fashion, in the Additional Protocols, but there
3 was first, we would submit, a legitimate basis for
4 interpreting Articles 86 and 87 together and to
5 maintain sort of what can be regarded almost as a
6 "should have known" standard.
7 Secondly, there is -- it is also legitimate,
8 we would submit, to argue that the old customary law
9 continued to co-exist with Additional Protocol I,
10 particularly bearing in mind that the Statute for the
11 International Criminal Court also, for the most part,
12 tends to adopt a standard somewhat similar to the one
13 that we are putting forward here.
14 That concludes my -- or our submissions with
15 respect to the "knew or had reason to know" standard.
16 Once again, Your Honours, I ask if there are any
17 questions that you would like to pose.
18 JUDGE BENNOUNA: [Interpretation] Mr. Fenrick,
19 I would have one question to put to you. You mentioned
20 the Blaskic judgement, and you said that it was spoken
21 about negligence of the commander and absence of
23 According to you, and since you have also
24 mentioned custom law, according to you, does this go
25 under the due diligence doctrine, i.e., the doctrine
1 which mentions this notion of superior responsibility
2 in cases of negligence when there is an absence of
3 action, when the necessary measures have not been
4 implemented, the so-called due diligence doctrine as it
5 is called by international law? This is a question I
6 would like to put to you.
7 MR. FENRICK: Yes, Your Honour, that would
8 essentially be our position. Our position is that if
9 one is, to use the wording of Protocol I as an example,
10 if one is to consider the scope of the knowledge
11 requirement, it cannot be considered -- or cannot be
12 assessed in the absence of the duty to inform. A
13 military commander has in particular, as a result of
14 Article 87 but also as a preexisting obligation, a duty
15 to take all practicable measures to ensure that his
16 armed forces comply with the law. As part of that
17 duty, he must ensure that the forces are adequately
18 trained. He must also set up some kind of a reporting
19 mechanism, and he must make sure that that reporting
20 mechanism actually works.
21 The superior is not entitled to just stand
22 there and say, "Well, I'm sorry, but I was
23 concentrating on other things. I was busy engaged in
24 fighting a war, I wasn't paying attention to what my
25 people were doing to prisoners," or things like that.
1 It is a part of the duty of this superior to be
2 informed. It doesn't mean there is any kind of a
3 strict liability standard here, but it certainly does
4 mean that he or she is obligated to try and set up a
5 system and make sure that a -- set up a reporting
6 system, that is, and to make sure that that system
7 reports or functions properly.
8 If he or she does not do that and as a result
9 does not become aware of information indicating an
10 offence is about to be committed or has been committed,
11 then, generally speaking, yes, he or she could be held
12 criminally responsible for failing to carry out that
13 duty, and determining the knowledge standard must be
14 done at -- while bearing in mind the duty requirement,
16 JUDGE BENNOUNA: [Interpretation] Thank you.
17 JUDGE POCAR: Thank you. Following on what
18 my colleague said now, in answering his question, you
19 mentioned that you are not invoking strict liability,
20 but you would be basing all your negligence.
21 Don't you think in that case -- I want to
22 find out what is the borderline between the two
23 notions, because wouldn't it be necessary in that case
24 to prove the negligence, in specific terms, not to
25 be -- not to remain within strict liability, I mean.
1 Which would be your comment on that?
2 MR. FENRICK: I would -- I think that's
3 accurate, Your Honour. I would suggest, however, that
4 one can establish that negligence by circumstantial
5 evidence in the same way as one could establish by
6 circumstantial evidence that the accused or the
7 superior must have known.
8 In the Celebici judgement itself, there is,
9 in the discussion of proof of actual knowledge by
10 circumstantial means, a list of criteria that one might
11 look at in order to determine, on a circumstantial
12 basis, whether or not the accused actually knew of the
13 offences being committed.
14 I would suggest that evidence of that nature
15 might also be sufficient to establish whether or not
16 the accused should have known, within the meaning of
17 the Blaskic decision, in the same way. One can, of
18 course, also, if practicable, obtain information about
19 the actual reporting systems that were available to the
20 accused and those things that he set up.
21 JUDGE HUNT: I think the time has come to
22 take a break, Mr. Fenrick. You would have to add,
23 would you not, to your answer to Judge Pocar, that the
24 system that he should have set up would, in fact, have
25 determined or found out that there were offences being
1 committed. There would have to be a factual causal
2 link between the failure to keep himself informed and
3 being able to stop these things happening or to be able
4 to find out that they had happened.
5 MR. FENRICK: If I recollect my argument
6 earlier, Your Honour, I said that not only must the
7 reporting systems be set up, but one must -- it must be
8 monitored to determine that it works.
9 JUDGE HUNT: Yes, but you have to prove that
10 if it had worked, he would have found out. That's the
12 But anyway, let's take the break now. We'll
13 resume at 12.00.
14 --- Recess taken at 11.34 a.m.
15 --- On resuming at 12.00 p.m.
16 JUDGE HUNT: Yes.
17 MR. MORRISON: If it please Your Honour, I
18 adopted Your Honour's invitation to speak to the
19 Prosecution during the short adjournment. The net
20 result is that on behalf of the appellant Mucic, we
21 make this application: That insofar as his case is
22 concerned and matters pertaining to his case, that
23 there be no final determination by the Appeals Court
24 until such time as we've had the opportunity to see and
25 examine all of the documents that the Prosecution may
1 wish to rely upon or may wish to adduce in this case or
2 seek to adduce, and, thereafter, be permitted to make
3 such application or raise such motion as is appropriate
4 after having seen those documents.
5 I am told that they are all in the hands of
6 the translators at the moment. There are 12
7 translators working upon them, and most of the
8 documents are no longer than the ones that have already
9 been shown to the Court. So we're talking about two,
10 three pages in the main.
11 Nobody can give an exactly predicted time
12 scale, or I think the Prosecution may have a better
13 idea after this adjournment than they had before it,
14 but I would simply undertake, on behalf of the
15 appellant, to move as expeditiously as possible, as
16 soon as those documents are available.
17 JUDGE HUNT: Well, some time limit is going
18 to have to be imposed upon the Prosecution assuming
19 that we allow them to leave this option open, so that
20 it would be more or less the same time for you, I would
21 have thought, or at least to give us notice of an
22 application to alter your grounds of appeal.
23 MR. MORRISON: Yes.
24 JUDGE HUNT: Yes. Well, thank you, very
25 much, Mr. Morrison.
1 Mr. Ackerman.
2 MR. ACKERMAN: Your Honour, I think what we
3 have seen this morning is the tip of what will turn out
4 to be a very difficult iceberg to deal with.
5 It seems to me that this Tribunal must take
6 the position that there comes a point where every case
8 The situation that exists in the former
9 Yugoslavia is such that it is entirely possible that in
10 every case that is heard by this Tribunal, at some
11 point following the Trial Chamber's judgement or the
12 Appeals Chamber's judgement or somewhere in between as
13 we have here, that somebody will discover some
14 additional documents that could have been relevant in
15 some way to the proceedings. That's the nature of
16 these cases, especially considering the extraordinarily
17 difficult task of securing documents from the former
19 We all know that in every case that is before
20 this Tribunal, that there are materials available
21 somewhere in the former Yugoslavia that would assist a
22 Trial Chamber in deciding the cases, but it seems to me
23 in the interests of finality of this Tribunal's work,
24 that there must come a time when you say, "That's it.
25 We don't care if there are any additional documents,"
1 unless in the very extreme example that some document
2 would appear that would show that someone is absolutely
3 not guilty who had been convicted. There would be a
4 substantial injustice that would simply need to be
6 So I think it is unwise, at this point, for
7 the Tribunal to allow this matter to remain open and go
8 forward, because you would be setting a precedent that
9 cases simply cannot end here, and I think they must
11 JUDGE HUNT: You understand, though, that all
12 of those considerations you put forward would be
13 relevant to any decision which is made when the
14 Prosecution seeks formally to tender this as fresh
15 evidence or whatever use it wishes to make of this
17 MR. ACKERMAN: I understand that, Your
18 Honour. I think, however, it's my duty on behalf of my
19 client to oppose the Prosecutor's request, and I do
21 JUDGE HUNT: Thank you.
22 Yes, Mr. Farrell.
23 MR. FARRELL: Excuse me, Your Honour. I just
24 wanted to inform you that we have been informed by --
25 the first thing is the Translation has indicated, if
1 it's relevant to your determination, that on Friday,
2 June 23rd, would be, in their expectation, the date on
3 which the documents would be translated. That's my --
4 so I think approximately three weeks. The 23rd of June
5 is --
6 JUDGE HUNT: This is for 145 documents of two
7 or three pages long.
8 MR. FARRELL: That's my understanding from
9 the --
10 JUDGE HUNT: With 12 translators working on
12 MR. FARRELL: No. I think that was a bit of
13 a misunderstanding and that may have been a problem in
14 discussions with Mr. Morrison.
15 The Translation Unit, as you know, is part of
16 the Tribunal. The indexing of the documents is part of
17 the Office the Prosecutor. The Office of the
18 Prosecutor placed 12 people in the Evidence Unit of the
19 Prosecutor's Office to have them properly indexed and
20 numbered, which is the first step before they can be
21 handed over to the Translation Unit.
22 JUDGE HUNT: Did nobody think of making
23 photostat copies so that they could go to the
24 translators earlier?
25 MR. FARRELL: In light of the procedure that
1 we follow, it took two days of 12 people. So in light
2 of the fact that the photocopying might have saved two
3 days, that may have been the case, but the Translation
4 Unit requires that they be received in a manner in
5 which they are properly indexed. So there were only
6 two days that it took, the Wednesday and the Thursday
7 morning to have them indexed.
8 JUDGE HUNT: There are times when bureaucracy
9 does have to be put to one side, Mr. Farrell.
10 MR. FARRELL: Yes, Your Honour.
11 JUDGE HUNT: The 23rd seems to me to be a
12 very long time.
13 MR. FARRELL: I can certainly --
14 JUDGE HUNT: If somebody sat and read them
15 out, the translators here in the court would have them
16 done in a couple of hours, wouldn't they?
17 MR. FARRELL: I presume that may be the case,
18 although I can't pass judgement on that. I think the
19 concern is that there are something like 1.5 million
20 documents that are presently being considered for -- in
21 other cases, as you're aware, for disclosure and
22 translation, and unless we can take precedent over
23 other cases, I don't know whether -- at least the
24 Office of the Prosecutor, I don't know whether we can
25 indicate to the Translation Unit that these are the
1 first priority.
2 I can certainly make further inquiries if you
3 wish, and I'll try and raise this after the lunch break
4 to try and leave it --
5 JUDGE HUNT: I think it might be a good
7 MR. FARRELL: Of course, Your Honour. Unless
8 you wish to hear from me on the comments of the other
10 JUDGE HUNT: Well, yes. That's what I called
11 upon you for.
12 MR. FARRELL: Yes. That's what I was going
13 to say.
14 The first comment, simply, is that
15 Mr. Morrison appears to be, at this stage, joining in
16 the application of the Prosecutor, and has, it appears
17 from his submissions this morning, indicated that in
18 his view, the documents are substantially germane, as
19 he indicated. That being the case, it appears that not
20 only does he see the necessity for the proceedings to
21 remain open, but it appears from the wording he used
22 that upon his initial review on the face of them, they
23 are, in fact, significantly influential or
24 significantly important.
25 JUDGE HUNT: Well, he has, of course, a
1 ground of appeal directed specifically to command
2 responsibility, and what he wants to do, as I
3 understand what Mr. Morrison said, is to consider
4 whether he can have these entered as fresh evidence in
5 order to assist him on his arguments under ground 9, I
6 think it is. It's a bit difficult to remember what Mr.
7 Mucic's ground numbers are; they change so often.
8 MR. FARRELL: Ground 7, Your Honour.
9 JUDGE HUNT: So you would not oppose the
10 delay of his ground being argued until they've had the
11 opportunity to consider this material?
12 MR. FARRELL: Maybe there's a
13 misunderstanding between Mr. Morrison and myself on the
14 application of Rule 115. I would submit that the
15 Prosecution's position is that there are two distinct
16 issues here. The first is whether there was an error
17 committed at the trial level, which of course are to be
18 seeking guidance of the Appeals Chamber, which includes
19 of fact and errors of law.
20 The second issue is the determination as to
21 whether or not under Rule 115 additional evidence could
22 have rendered the conviction unsafe. That's a separate
23 issue which I would submit doesn't necessarily require
24 this Court to actually take those documents and apply
25 it to the present grounds of appeal.
1 The grounds of appeal may stand on their own
2 or fall on their own in light of the record before the
3 Trial Chamber. The additional issue is whether, based
4 on the facts before the Trial Chamber, including the
5 new evidence, not making findings necessarily of --
6 complete findings of fact on them, but including the
7 new evidence, that those new facts could have affected
8 the verdict rendered. If that's the case, then the
9 matter, we would submit, would be remitted back to the
10 Trial Chamber. It's not that this Court then makes all
11 new findings of fact with respect to the totality of
12 the evidence at trial and a determination of findings
13 of fact de novo on new evidence before it; it's just to
14 reach the threshold that the conviction was unsafe and
15 therefore is remitted back to the Trial Chamber. I see
16 those as two distinct issues.
17 JUDGE HUNT: Yes, but if that one succeeds,
18 then there's no need for us to determine whether the
19 Trial Chamber made an error of fact based upon the
20 material that was at the trial.
21 MR. FARRELL: Well, likewise, if you make a
22 determination that they made an error of fact in the
23 first place, you would send it back, remit it back for
24 a new trial and wouldn't have to determine the other
25 issues. So I see them as the same --
1 JUDGE HUNT: Yes.
2 MR. FARRELL: -- with respect.
3 Just with respect to Mr. Ackerman's comments,
4 Your Honour, his comments about finality are
5 appreciated and, in general, agreed with. But in our
6 submission, that's why we have the Rules. The Rules
7 themselves, in fact, set out what the finality is in
8 relation to the proceedings before this Chamber, and
9 Rule 115 specifically sets out the issue relating to
10 finality, and as well as Rule 119 and Rule 120 for the
11 review proceedings.
12 So absent a determination of this Chamber
13 that under Rule 127 an adjournment wouldn't be granted
14 to file it, I would submit that the Rules, in fact,
15 that we're attempting to apply determine the issue, and
16 I think it would be, in our respectful submission, a
17 little bit -- wouldn't be the correct result if these
18 documents were found 5 days previously, which would
19 make it within the time frame of 15 days, and they
20 could be admitted simply for the sake of the --
21 JUDGE HUNT: Well, it's not the question of
22 when they were found, but when you make an application.
23 MR. FARRELL: And whether due diligence was
24 exercised, Your Honour. Thank you.
25 JUDGE HUNT: But if we were to grant the
1 Prosecution's application to leave its options open,
2 there would have to be some very strict timetables
3 imposed, and that is why I think, if I may say so, the
4 Translation Unit's attitude is important.
5 MR. FARRELL: Yes, Your Honour.
6 JUDGE HUNT: One would have thought that
7 these documents could be done so that we would see them
8 by the end of this week.
9 MR. FARRELL: I'll certainly look into seeing
10 whether that's possible, and I obviously agree with
11 your comments about the need for a strict time frame.
12 JUDGE HUNT: Yes.
13 MR. FARRELL: Excuse me for one minute, Your
15 MR. ACKERMAN: Your Honour, may I just add
16 something that I neglected when I was up a moment ago?
17 JUDGE HUNT: Yes.
18 MR. ACKERMAN: If the Chamber determines that
19 the Prosecutor's options are to be left open, we would
20 appreciate you entering an order that those documents
21 be immediately provided to the Defence, translated or
22 untranslated. We would like the original B/C/S
23 documents, copies of them, immediately. We're willing
24 to wait until the Translation Unit finishes the
25 translation and receive those seriatim as that goes on.
1 JUDGE HUNT: Yes. Thank you.
2 MR. FARRELL: Sorry, Your Honour. I just
3 needed to get a document.
4 With respect to the -- two matters. First of
5 all, I was informed by Mr. Huber, the case manager,
6 that he has asked what the earliest possible date was,
7 and it's the indication that the earliest possible date
8 would be the 19th, that the Translation Unit has made
9 it a priority, that it would take approximately one to
10 two weeks to translate and then give themselves
11 approximately one week to revise. I will once again
12 confirm those dates, but that's just further
13 information for you, Your Honour.
14 JUDGE HUNT: I think the Translation
15 Department can do far better than that.
16 MR. FARRELL: I'll certainly impress upon
17 them the Chamber's concern.
18 Secondly, with respect to the request for the
19 disclosure of the documents immediately, the
20 Prosecution just has a few comments in that regard.
21 First of all, all the documents haven't been
22 reviewed, obviously, as you're fully aware, and the
23 Prosecution's concern, of course, is that there may be
24 some material in there, sensitive or otherwise, that
25 may have to be redacted. At this point in time, Your
1 Honour, we don't -- the Prosecution doesn't know.
2 JUDGE HUNT: This, of course, is where you do
3 have your 12 people working on it.
4 MR. FARRELL: Absolutely. As I understand
5 it, it's not the general practice of the Tribunal to
6 require disclosure of documents which there hasn't been
7 a determination of their potential relevance and
8 whether the Prosecution may not intend to rely on,
9 subject, of course, to the obligations for disclosure
10 under the Rules, which the Prosecution will of course
11 abide by. At this point in time, until we've had the
12 chance to determine the content of the documents and
13 the relevance, and to a certain extent, obviously,
14 their sensitivity, we wouldn't submit that the
15 disclosure of them in B/C/S would be appropriate.
16 JUDGE HUNT: How about a rolling disclosure?
17 In other words, you give them what you've done already,
18 or your 12 investigators have got through, and you keep
19 supplying them as they are processed through this
20 bureaucracy that resides upstairs.
21 MR. FARRELL: Assuming, of course, that the
22 Prosecution is going to tender them under Rule 115,
23 then we'll disclose them.
24 JUDGE HUNT: I was thinking really also of
25 Mr. Mucic, who wants to know what the documents are
1 from his point of view, as well as Mr. Ackerman's.
2 MR. FARRELL: Once we're in a position to
3 assess the ones that we have gone through, and if the
4 Prosecution intends to rely on them and they don't have
5 sensitive documents that don't need to be redacted,
6 then yes.
7 JUDGE HUNT: You say you still haven't made
8 up your mind even about the documents that these 12
9 people have been working on hopefully over the weekend,
10 are you?
11 MR. FARRELL: Yes. I'm sorry. The documents
12 that the persons have been working on were for the
13 purposes of having them properly what's called indexed,
14 for the purpose of having them given a proper
15 identification number. There have been other persons
16 working full time on having them translated, and those
17 were some of the documents that we presented to you
18 today. So to the extent that we are able, yes, Your
19 Honour, we'll attempt to.
20 JUDGE BENNOUNA: [Interpretation] Mr. Farrell,
21 I'm sure you are well aware of the fact that the
22 Appeals Chamber must at least have a list of your
23 documents which you wish to submit as additional
24 evidence. We cannot wait for you. We cannot wait for
25 this machine of yours to produce documents one after
1 the other. We have at some point in time to make a
2 decision. Either we accept additional evidence, as is
3 planned by Rule 115 of our Rules of Procedure, and that
4 is for the Appeals Chamber to decide, and then we have
5 to grant you an additional delay for the submission of
6 these documents and we have to set a very precise time
7 frame. But in order to do so, we must have a list of
8 this additional evidence, even though these documents
9 are not translated.
10 You must try to act swiftly and you must try
11 to give us a list of your documents of which you think
12 that you may want to submit them as additional
13 evidence, a decision which will in turn enable us to
14 make a decision allowing you to tender them within the
15 framework of Rule 115. And this decision can only be
16 made if we have a list of these documents and at least
17 an idea of what this document is all about.
18 You don't need 12 people to achieve that, you
19 don't need a hundred people to achieve that; you just
20 need someone who is familiar with the B/C/S language
21 and who is able to give you an idea of the content of
22 the document so that you may decide whether or not this
23 document is relevant and for you to decide whether or
24 not you will choose to submit this document to us.
25 This must be done within the days that remain during
1 this week.
2 Absent these measures, we cannot make a
3 decision, an enlightened decision. You understand
4 that. You cannot have carte blanche. You cannot have
5 that kind of tool between your hands. I speak in my
6 own name, but I would oppose such a decision that would
7 basically give you carte blanche in order to make
8 things easier for you.
9 MR. FARRELL: Thank you very much, Your
10 Honour. If there is a necessity, an order of this
11 Court, we certainly will try to abide by it. The
12 difficulty in giving you a summary at this stage is,
13 quite frankly, that until there's a determination by
14 the Office of the Prosecutor with respect as to whether
15 or not we're even going to file a Rule 115, the
16 Prosecution would take the position it's a little bit
17 inappropriate to give you documents which bear on the
18 guilt or innocence of the accused prior to it --
19 THE INTERPRETER: Could Mr. Farrell please
20 slow down. Thank you.
21 MR. FARRELL: My apologies.
22 The Prosecution would be of the view that it
23 may be considered inappropriate to provide documents
24 which may or may not go to the guilt or innocence of
25 the accused prior to a determination whether we're
1 submitting them.
2 I'm not saying that the Court can't make its
3 own determination. It's not going to be influenced in
4 any way by the documents. It will determine the issue
5 on the record before it at the trial, or if it admits
6 it on the documents which it receives. I'm not saying
7 it can't receive them; just that until we make a
8 determination under Rule 115. In light of Judge
9 Bennouna's concerns, at the break we'll try and make an
10 effort to determine the best-case scenario with respect
11 to the translation and with respect to providing the
12 Chamber whatever material they think would be necessary
13 to assist them.
14 JUDGE HUNT: Mr. Farrell, I share Judge
15 Bennouna's concerns about this. I cannot accept,
16 frankly, that you have had 12 people just numbering
17 these documents, and they've been working there for two
18 days just so they can be indexed. They must have been
19 forming some idea of what those documents contain.
20 Now, those are the sorts of things that somebody from
21 the OTP legal team should be looking at to be able to
22 make a much better decision. You have five documents
23 which, as you have outlined, may very well have
24 relevance to the issues at trial. I don't say I've
25 accepted what you've said, but you have put up a
1 substantial argument as to their admissibility.
2 Somebody with the material obtained by these 12
3 researchers should be able to then form a decision, and
4 sometime during the course of this week, whether you
5 are going to make the application.
6 MR. FARRELL: Fair enough.
7 JUDGE HUNT: You can't just sit back and let
8 this thing roll on for some bureaucratic reasons.
9 MR. FARRELL: The Prosecution will make every
10 effort by the end of the week to give you some
12 JUDGE HUNT: Yes, but we want to be able to
13 make a decision today as to whether the Prosecution is
14 allowed to keep its case open on this. And I think
15 that the decision has to be made today, otherwise
16 you -- we don't want you filibustering to finish the
17 day off and we have to make the decision tomorrow. So
18 I think after lunch you had better come back with some
19 more information.
20 MR. FARRELL: Thank you, Your Honour. I'll
21 make sure I do that.
22 MR. ACKERMAN: Your Honour, may I just say
23 with regard to the disclosure issue, it isn't, under
24 Rule 66(B), just what the Prosecutor intends to use,
25 but what might be material for the preparation of the
2 JUDGE HUNT: Oh, yes. I think that the
3 Prosecution accept that. They just say that somebody
4 within the OTP legal team has to make a decision on
5 that rather than these researchers or investigators,
6 whoever they are, who have been numbering the
8 MR. ACKERMAN: I just can see, with the
9 experience that I have here, that we are weeks away
10 from them deciding whether they're material to the
12 JUDGE HUNT: Oh, no, we're not.
13 MR. ACKERMAN: Okay. Thank you, Your
15 JUDGE HUNT: Yes. Thank you.
16 Mr. Fenrick, may I ask you a question about
17 the "reason to know or ought to or should have known."
18 Is the position of the OTP different now that it has
19 this material which may or may not go to the issue of
20 direct responsibility or direct control? Because, you
21 see, you've put this up as a purely academic exercise,
22 as a matter of public importance for the Appeals
23 Chamber to pass on.
24 MR. FENRICK: It's my understanding, Your
25 Honour, that it continues to not be directly related to
1 any of the particular accused in this case.
2 JUDGE HUNT: So it remains a purely academic
3 exercise? An important one, perhaps.
4 MR. FENRICK: An important one, yes.
5 JUDGE HUNT: Perhaps, but nevertheless, it is
6 purely academic and not related to the issues in this
7 trial, or this appeal.
8 MR. FENRICK: That's correct.
9 JUDGE HUNT: Thank you.
10 MR. FENRICK: If Your Honours have no further
11 questions in connection with "knew or had reason to
12 know," I would just like to briefly address the
13 necessary and reasonable measures aspect of having the
14 ability to prevent or punish, and essentially it's our
15 understanding that a number of the Trial Chambers have
16 decided that necessary and reasonable measures a
17 superior may take are only those that are within his or
18 her powers. That's primarily a factual matter and it's
19 dependent on the circumstances of a particular case,
20 and under some circumstances the obligation to prevent
21 or punish may be met by simply reporting the matter to
22 the competent authorities.
23 If I might talk about sort of normal military
24 practice very briefly, Your Honours. In many military
25 legal systems these days, there is a very definite
1 effort being made to insulate the military justice
2 system from command influence, and in fact it would be
3 most unlikely in most systems that you could say,
4 "Well, this fellow is a commander. He is therefore
5 entitled to punish the accused." Or, in the converse
6 situation, "He doesn't have the power to punish,
7 therefore he's not a commander or not somebody in a
8 position of superior authority."
9 It would be quite normal in many systems to
10 have the military judiciary, or whatever judiciary is
11 functioning, insulated from the command system so that
12 all that a commander could do would be to start an
13 investigation in motion or to pass a complaint to a
14 different level of authority. And the necessary -- the
15 fact that a general, for example, is not entitled to
16 summarily punish a particular perpetrator is irrelevant
17 in these cases. It's all a matter of circumstance.
18 And that's all I have to say on that issue,
19 Your Honours. If there are any further questions.
20 Those are all of my submissions related to
21 the command responsibility issue, Your Honour.
22 JUDGE HUNT: Thank you.
23 Well, now, Mr. Moran.
24 MR. FARRELL: Excuse me. I apologise, Your
25 Honour. I'm not obviously getting to the point of
1 incurring your favour by this, but the grounds of
2 appeal in relation to 7(3), as indicated in the outline
3 -- and I apologise. This may not have been made clear
4 at the beginning -- related to a number of issues under
5 7(3), and the outline indicates that the law on command
6 responsibility is with respect to the issues
7 Mr. Fenrick addressed and then that there are other
8 grounds of appeal in the brief: Ground 2 and ground --
9 and an additional issue regarding -- ground 2 and 3
10 regarding the Prosecution appeal brief.
11 Those two grounds were not addressed by
12 Mr. Fenrick. He spoke about the law. And the second
13 ground relates to the application of the law to the
14 facts in this case and the Prosecution's request for a
15 remedy, which is the substitution of a verdict of
17 JUDGE HUNT: Is this what you're saying, that
18 you are going to follow Mr. Fenrick?
19 MR. FARRELL: With your permission.
20 JUDGE HUNT: I'm sorry. It had not been made
21 clear to us that you would --
22 MR. FARRELL: My apologies.
23 JUDGE HUNT: -- and I would have called upon
24 you otherwise. Yes.
25 MR. FARRELL: Thank you.
1 JUDGE HUNT: Sorry, Mr. Moran.
2 I have now had the opportunity of looking at
3 the document. It was handed in to us. And it is made
4 very clear there, so you proceed.
5 MR. FARRELL: Thank you, Your Honour. I
6 should have indicated that at the beginning, or maybe
7 we could have had Mr. Fenrick address that at the
8 beginning to make it clear.
9 In light of the time, I'll try and make my
10 submissions as precise as possible, or concise as
11 possible, while still speaking at a reasonable rate.
12 The ground 2 that's in the brief is an
13 application of the law, as submitted by Mr. Fenrick, to
14 the facts in this case. There's two options as a
15 result of a finding, if this Appeals Chamber finds that
16 there was an error of law.
17 The first is that if it finds on the facts as
18 found, as a result of the application of the correct
19 test, that there could be no other reasonable
20 conclusion than guilt, the Prosecution would ask that
21 they submit a substituted verdict of conviction.
22 If the facts as found either do not address
23 some of the elements necessary for a finding of guilt,
24 or are such that they are equivocal, then if there is
25 an error of law, the second option is to remit it back
1 to the Trial Chamber.
2 The Prosecution's position on ground 2 is
3 that if you look at the facts as found, applying the
4 test which the Prosecution submits is the correct one,
5 submitted by Mr. Fenrick, then the result would be a
6 substituted verdict of conviction.
7 As you know, Mr. Fenrick made a submission
8 that one of the errors submitted by the Prosecution in
9 relation to the test applied is that of
10 superior/subordinate relationship. And as he
11 indicated, there were three elements to the
12 relationship: One was that the superior have an
13 effective control over persons committing the
14 violations; secondly, that effective control is
15 articulated as being the ability, the material ability,
16 to prevent or punish the commission of the offence; and
17 thirdly, that that control can be de facto or de jure.
18 In the Prosecution's submission, the Trial
19 Chamber erred in its conclusion with respect to
20 Mr. Delacic on superior responsibility because it
21 appeared to focus on the necessity of a chain of
22 command. It appeared to focus on the necessity of that
23 there has to be a command structure, rejecting the
24 Prosecution's submission that in certain circumstances
25 there may very well be a superior who has a substantial
1 influence that could bring about, or who has the
2 material ability to bring about, the prevention or the
3 punishment of crimes, or that there may be
4 circumstances where he's not in the direct chain of
5 command himself, though has a position which could
6 exert that influence as well. The bottom line being
7 that the Trial Chamber's reliance on the need for a
8 chain of command, and specifically some -- what appears
9 to be some direct link or direct chain of command,
10 caused them, in the Prosecution's submission, to negate
11 two possibilities.
12 These two possibilities which the Prosecution
13 submits reflects the correct approach are, one, that a
14 person may still be found liable where they are not in
15 a specific delineated chain of command with
16 identifiable subordinates; or two, there may be
17 circumstances where the superior is in fact in a
18 non-command function where that superior may incur
19 liability. And these two possible circumstances would
20 require that the superior/subordinate relationship
21 should not be defined by the Appeals Chamber in a
22 narrowly circumscribed scribed manner.
23 Mr. Fenrick has referred to the hostages
24 case, the Hirota case, and the Muto case as examples
25 where the World War II case law supports that there may
1 be -- it's not that it's necessary, and you have to
2 look at the circumstances of each case, but there may
3 be circumstances where a person in a non-command
4 position may be held criminally responsible.
5 In the submission of the Prosecution, it's
6 important to recall that the purpose of the command
7 responsibility, and the purpose of the sections as set
8 out in the Additional Protocols, is to prevent war
9 crimes from being perpetrated and to punish those who
10 commit them. Article 68(1) talks about the general
11 obligation to repress or suppress breaches, and the
12 additional commentaries at page 1007 indicates that the
13 importance of this provision cannot be doubted.
14 It would appear, in the Prosecution's
15 submission, somewhat illogical if you find that there
16 are a commission of war crimes, if you find that a
17 person has sufficient authority or responsibility such
18 that they could prevent them, but they are not found
19 liable because there are no direct subordinates.
20 With respect to the Hirota case; the Muto
21 case, the staff officer who is not in a command
22 position, these are examples where in the special
23 circumstances of those cases, and it may very well not
24 occur very often, but in the special circumstances of
25 those cases, where they can effectively or materially
1 affect and bring about the prevention and punishment,
2 they shouldn't be subject to prosecution simply because
3 they claim that they have no direct subordinates.
4 That position, as taken by Mr. Fenrick,
5 requires an understanding, when dealing with
6 Mr. Delalic, of the facts.
7 There is one issue, though, I'd like to
8 address before proceeding on the facts in relation to
9 Mr. Delalic, and that's the scope of the Appeals
10 Chamber's ability to assess the evidence at trial, the
11 evidence on the Trial Record, and make its own
12 determination on the basis of that evidence.
13 To be fair, in the Prosecution appeal brief
14 at paragraph 3.34, the Prosecution submits that the
15 Appeals Chamber can do one of two things: It can rely
16 on the facts as found or it can rely on any evidence
17 not rejected by the Trial Chamber. It's that second
18 aspect that I would like to address very briefly right
20 There's a certain difficulty in the
21 judgement, in our respectful submission, in that the
22 Trial Chamber makes certain findings of fact but then
23 doesn't proceed any further. For example, in the
24 evidence with respect to Dr. Grubac, the Trial Chamber
25 acknowledges that Dr. Grubac was released and that the
1 release order was signed by Mr. Delalic.
2 There's no reference in the evidence of
3 Dr. Grubac to Dr. Grubac's testimony that he was
4 informed that Delalic will release him from the
5 prison. There's no reference to that in terms of an
6 actual finding of fact. It's in the transcripts.
7 There's no reference to the testimony of Dr. Grubac's
8 wife, that she went to Delalic himself, specifically
9 Delalic, to have her husband released and he was
10 subsequently released.
11 The difficulty is that there seems to be
12 evidence that accepts that Mr. Delalic had a role to
13 play and signed the document, the release order, but
14 doesn't make any comment to the rest of the evidence on
15 that specific issue. Now, in fairness, the Trial
16 Chamber found that he was signing the documents only on
17 behalf of someone else.
18 The Prosecution, in an attempt to bring to
19 the attention of the Chamber this other evidence which
20 doesn't appear to be contradicted, put in the
21 submission that the Appeals Chamber could actually make
22 new findings of fact on any evidence that was not
23 rejected or not contradicted by the Trial Chamber.
24 After the Tadic Appeals Chamber's decision
25 and after this Appeals Chamber's decision as well in
1 Aleksovski, the Prosecution now takes the view that the
2 Appeals Chamber cannot intervene and make findings of
3 fact on evidence on the record.
4 In a situation where there is to be an
5 intervention on the facts, it's the Prosecution's
6 submission that the Appeals Chamber be permitted to
7 intervene on factual matters in at least three
9 The first is where no reasonable person could
10 have taken the view of the evidence that was taken by
11 the Trial Chamber. This is a clear error of fact
12 standard, and it was articulated both in Tadic and
13 Aleksovski, both in Tadic in the majority and in the
14 separate opinion of Judge Shahabuddeen, and it
15 basically is a reasonableness standard for a
16 determination whether the factual findings at trial
17 constituted an error.
18 The converse, of course, is that where there
19 is only one reasonable conclusion to be drawn from the
20 evidence and the Trial Chamber did not draw the only
21 reason conclusion from the evidence, that would
22 constitute error of fact as well.
23 The second would be that the Trial Chamber
24 failed to take into account relevant facts or took into
25 account irrelevant facts, and the third would be that
1 they applied the wrong legal criterion to the
2 determination of the significance of the facts.
3 In the Prosecution's submission, these are
4 examples where the Appeals Chamber can intervene, and
5 these three examples are taken from the Tadic decision,
6 but that the Appeals Chamber generally must accept the
7 facts as found by the Trial Chamber and that the
8 Appeals Chamber generally does not exercise a de novo
9 function in relation to evidence presented at trial.
10 When the parties are alleging an error of
11 fact, and in this case the Prosecution is alleging the
12 facts as found should have -- the only reasonable
13 conclusion is that the Trial Chamber should have found
14 him guilty once the Appeals Chamber applies the correct
15 legal test is a standard of unreasonableness and not,
16 as we submit in our brief, that the Court can look at
17 any evidence not rejected by the Trial Chamber. I
18 think that's fair in light of the decision as well in
19 paragraph 167 in Aleksovski, where the Appeals Chamber
20 states that, "Unless it is safe to infer that the Trial
21 Chamber formed a particular view of the evidence beyond
22 what was expressly said, the Appeals Chamber cannot
23 draw an inference from this evidence," and the
24 Prosecution obviously is bound by that decision of the
25 Appeals Chamber in Aleksovski.
1 Therefore, applying the law, the applicable
2 law, as the Prosecution submits by Mr. Fenrick, to the
3 facts in this case, my reference will be specifically
4 to facts found in the Appeals Chamber's decision.
5 With respect to Mr. Delalic, the facts by the
6 Appeals Chamber seem to be clear. Sorry, the Trial
7 Chamber. My apologies. He started in the Konjic
8 municipality as a civilian. He had no official
9 position when he arrived in the civilian or military
10 structure, but by the beginning of May he was receiving
11 authorisation to act on behalf of the state to procure
12 weapons and equipment in other state, that being
14 The Trial Chamber found that he was a
15 well-placed, influential individual. Within one month
16 of being -- apparently one to two months of being in
17 Konjic, he was appointed the coordinator in the region,
18 and he was empowered to directly coordinate the work of
19 the defence forces of the Konjic municipality and the
20 War Presidency.
21 He engaged in regular intervention designed
22 to facilitate the work of the War Presidency with
23 different military formations. He signed a document
24 regarding opening the railway line between Pazaric and
1 The Court found, in fairness, that this was a
2 formal acknowledgment of the involvement of the
3 coordinator but that, in fact, according to the
4 evidence one of the brigadiers who testified, his
5 signature was needed to have the order effected
7 Mr. Delalic coordinated and directed the
8 proceedings of a meeting of the military investigation
9 commission on a particular occasion in June 1992. The
10 Court concluded that he was simply acting on behalf of
11 a superior command, but the position being is that he
12 is acting in this capacity. He's meeting with members
13 of the commission, he appears to be directing the
14 proceedings, he reads out an order to them, and he
15 explains how they are to conduct interrogations of
16 detainees in the prisons.
17 This was during a period of time that he was
18 the coordinator, when he allegedly had no de jure or no
19 de facto authority with respect to the prison, but he
20 was performing a function in relation to the
21 interrogation and classification of prisoners in
23 With respect, this has nothing to do with his
24 alleged facility as a coordinator dealing with
1 He signed release orders in July 1992, as
2 found by the Trial Chamber, on behalf of the head of
3 the investigating body of the War Presidency. Once
4 again, this is again while he was a coordinator, while
5 he was allegedly someone who was involved in the
6 procurement of weapons and dealing with logistics.
7 In this situation, the Trial Chamber finds
8 that he was given authority by the head of the
9 investigating body, and he was given the authority as a
10 result in relation to the release of prisoners. Once
11 again, this has nothing do to do with being a
13 He was assigned the commander of TG-1, as
14 found by the Court, as indicated by my friend
15 correctly. Presumably he took over the function around
16 July 30th. I think that would be a direct reading of
17 the judgement. And that that was signed by the
18 president of the Republic of Bosnia-Herzegovina.
19 He had contacts with the International
20 Committee of the Red Cross, who were conducting visits
21 to the prisons and reporting on the treatment, and it's
22 once again submitted that this has nothing to do with
23 his assigned functions as found by the Trial Chamber
24 with respect to him being a commander. And once again,
25 it's respectfully submitted that it's because the Trial
1 Chamber approached the legal test of requiring a chain
2 of command, and if the subordinates in the prison,
3 being the prison officials Mr. Mucic, Mr. Delic, were
4 not in a chain of command back up to Mr. Delalic, he
5 couldn't be found guilty.
6 The evidence also accepted by the Trial
7 Chamber is that he signed two orders directing action
8 to be taken in the Celebici prison: one on August
9 24th, 1992; one on August 28th, 1992. These were
10 issued by Mr. Delalic as commander of Tactical Group 1,
11 and they were directed to the armed forces supreme
12 command staff of Konjic and copied to the Celebici
13 prison administrator. These orders concerned the
14 functioning of Celebici prison camp, and in the order
15 he indicates that the commander of the Konjic armed
16 forces is responsible to him for the prompt and
17 effective implementation of these orders. It also
18 indicated that there was a direct order to Mr. Mucic to
19 establish a commission of three members to undertake
20 the interrogation of prisoners.
21 Once again, the Court looks at this and says
22 that he was acting on behalf of someone else and that
23 he had no direct command authority over the prison.
24 It is submitted that Mr. Delalic, though
25 maybe not found to be in the direct chain of command
1 here, when applying the test as to whether or not he
2 was someone who was in a position of authority to meet
3 the effective control test such that he could have had
4 influence over the persons committing the crime and
5 could have been -- had the material ability to prevent
6 and punish.
7 It is submitted that the facts clearly show
8 that he is not simply someone who is involved in
9 logistics or assisting in lifting the siege of
10 Sarajevo; he acts on behalf of the War Presidency, he
11 acts on behalf of the supreme command in Sarajevo, he
12 acts on behalf of the investigating commission with
13 respect to prisoners, he issues orders with respect to
14 the functioning of the Celebici prison, he indicates
15 that a commander of an armed forces in Konjic is
16 directly responsible to him to implement the order.
17 The only reasonable inference, it is
18 submitted, is because he then has to report back, if we
19 accept the Trial Chamber's reasoning, he has to report
20 back to the supreme command in Sarajevo, if we accept
21 the reasoning that he's acting on their behalf. He
22 issues orders on behalf of the investigative bodies, he
23 reports orally in writing to the War Presidency, and as
24 commander he reports to Sarajevo.
25 Based on these very facts as found by the
1 Trial Chamber, it is submitted that there are two bases
2 for the reasonable conclusion that he performs a
3 function such that he has sufficient control or
4 authority or powers of substantial influence to
5 exercise the material ability to prevent or punish.
6 If he is not in a specific chain of command,
7 he is similar to the other cases referred to by
8 Mr. Fenrick in the sense that he is in such a special
9 position that he has links with all the parties. He
10 has links with the War Presidency, he has the ability
11 on behalf of the supreme command in Sarajevo to issue
12 orders, he reports back to the supreme command in
13 Sarajevo, and he has the authority to communicate and
14 intervene in relation to all of them.
15 As a result of the --
16 THE INTERPRETER: Could you please slow down
17 for the interpretation.
18 MR. FARRELL: As a result of this specific
19 position and someone who is granted authority by the
20 higher command, it is the Prosecution's position that
21 those facts demonstrate he had control.
22 The other -- the only other -- the other
23 possible basis on which the Prosecution indicates that
24 there is an inference is that he, in fact, when you
25 look at this first scenario, he is, in fact, in the
1 chain of command. He, in fact, is the link. He's the
2 link between the supreme command in Sarajevo and orders
3 to the Konjic forces. He's the link for the orders on
4 August 24th with respect to the Celebici prison. He's
5 the link with respect to the investigating commission
6 when they can't, as found by the Trial Chamber, they
7 can't undertake the releases of prisoners. He's the
8 link with the supreme command when there's a meeting of
9 the investigative commission to give them orders.
10 With respect, he is in the chain of command.
11 He, in fact, is one of the links in the chain of
12 command, though his link is not a direct link as the
13 commander of the prison, as found by the Trial Chamber.
14 In light of those factual submissions, it is
15 the submission of the -- factual conclusions, it is the
16 submission of the Prosecution that applying the test,
17 as submitted by Mr. Fenrick, this Court could come to
18 no other conclusion that, in fact, Mr. Delalic did have
19 the requisite ability to prevent and punish and was a
21 The submissions regarding the appropriate
22 remedy in this regard are that if the Appeals Chamber
23 accepts the Prosecution's submission that the Trial
24 Chamber erred in the test it applies and in applying
25 the correct test, as the Prosecution submits, to the
1 facts as found concludes that the only reasonable
2 conclusion is that of guilt, it's submitted that the
3 Appeals Chamber reversed the judgement and revise it by
4 substituting a verdict of conviction.
5 If, on the other hand, the Appeals Chamber
6 accepts the Prosecution's submissions that there was an
7 error in the test it employed but feels that based on
8 the facts as found it's not in a position to revise it
9 to enter a verdict of guilt, it's submitted that the
10 appropriate remedy would be to remit the matter to the
11 Trial Chamber.
12 Thirdly, the Prosecution has included within
13 its submissions the secondary argument that the Trial
14 Chamber erred in excluding evidence. This is in the
15 brief. You'll see that the Prosecution submits that on
16 the facts as found --
17 MR. ACKERMAN: Excuse me. Do I have an
18 objection at this point? I had perhaps wrongly assumed
19 that the Prosecutor had abandoned this point. They had
20 asked in their brief that the -- this Chamber give them
21 the opportunity to present witnesses and evidence on
22 that point before the Chamber, and having not pursued
23 it any further following that point, having not made
24 any application to bring witnesses before the Chamber
25 as they indicated in their brief they were going to do,
1 I was of the opinion they'd abandoned it.
2 They did not raise it at the Status
3 Conference as an issue that they were going to raise
4 during these arguments. During the Status Conference,
5 we went through all of the issues that were appropriate
6 to be argued, and the Prosecution never mentioned that
7 this matter would be brought before the Chamber during
8 these arguments, and so I, therefore, assumed that they
9 had abandoned the point by not pursuing it after they
10 had raised it in their briefs.
11 They didn't make any further application to
12 this Court to bring the witnesses before this Court to
13 prove those documents. So I think it's totally
14 improper now for them to, in that context, raise this
15 issue that they clearly had abandoned.
16 JUDGE HUNT: Yes? It is a little surprising,
17 I must confess. I read that only the other night and
18 noted that there had been nothing produced.
19 MR. FARRELL: Well, maybe the fault lies with
20 the wording in the reply brief, but that section only
21 goes to the remedy, not to the abandonment of the
22 ground of appeal, as I understand it, Your Honour.
23 JUDGE HUNT: If you say that the Trial
24 Chamber wrongly excluded evidence, we have to know what
25 the evidence is, don't we?
1 MR. FARRELL: The evidence is before you.
2 The question was the appropriate remedy if you found
3 that they erred in law in excluding the documents.
4 JUDGE HUNT: Was this only documents? I
5 didn't realise it was limited to that.
6 MR. FARRELL: I'm sorry, Your Honour. There
7 was documents and three witness.
8 JUDGE HUNT: Yes.
9 MR. FARRELL: The issue is an issue of an
10 error of law. The issue is whether or not the Trial
11 Chamber applied the correct test for the admission of
12 rebuttal or fresh evidence. If they applied the
13 incorrect test and it's an error of law, then the Trial
14 Chamber erred.
15 JUDGE HUNT: Yes, but this is another one of
16 these solely academic matters unless we know that if
17 they had not erred it would have affected the result,
18 and we can't decide that without knowing what the
19 evidence was that you sought to tender, other than the
21 MR. FARRELL: I apologise for the
22 misunderstanding, but quite clearly the documents are
23 before you. All of them are before you. They're
24 attached as three appendices to the appellant's brief.
25 What the remedy that the Prosecution
1 submitted in its first appeal brief was that the
2 Appeals Chamber could call all the witnesses, make new
3 findings of fact, and not have to send it back to the
4 Trial Chamber. That's different than having the
5 evidence before you -- obviously you're --
6 JUDGE HUNT: Yes, I see your point, but is
7 this for some academic exercise then, simply to say
8 that the right of the Prosecution is to lead evidence
9 in reply even though it is not in reply or even though
10 it was a matter that should have realised by it during
11 its case-in-chief?
12 MR. FARRELL: Absolutely not. The ground of
13 appeal is that the Trial Chamber erred in the exclusion
14 of evidence, that it erred in law with respect to
15 rebuttal or fresh evidence, and the documents are
16 pertinent to a determination of the liability of
17 Mr. Delalic.
18 One of the documents, for example, is that
19 the hand -- what the Prosecution has called the
20 "handover document." It's on November 17th, it's
21 signed by Mr. Delalic, and it hands over authority from
22 the present commander of the prison, Mr. Mucic, to the
23 subsequent commander of the prison, Mr. Delic. It's
24 the Prosecution's submission that these documents are
25 germane to the issue before them and could have
1 affected their understanding and the approach -- not
2 only the approach taken but the facts as found.
3 The remedy that was proposed, Your Honour,
4 with respect to -- in the brief was that once the
5 facts -- once there was an error determined and once
6 there was a determination obviously that it wasn't a
7 harmless error because the documents and the witnesses
8 are relevant, after that determination is made, then
9 the next question is: What's the remedy? The normal
10 remedy would be that the matter would be remitted back
11 to the Trial Chamber, in my respectful submission.
12 The -- I'm sorry.
13 JUDGE HUNT: That's all right.
14 MR. FARRELL: The proposal in the
15 Prosecution's appeal brief was that instead of having
16 it remitted back to the Trial Chamber for the sake of
17 23 documents or 21 documents and two sets of documents
18 and three witnesses for a complete new trial that took
19 18 months, that the Appeals Chamber would have the
20 authority to actually, once the determination was made
21 that there was an error and it wasn't a harmless error,
22 that the documents were relevant to a determination
23 before the Trial Chamber, that one option was to have
24 the Appeals Chamber hear the evidence, make findings of
25 fact, and then determine on those findings of fact in
1 relation to all the other findings of the Trial
3 As a result of the Tadic decision and
4 subsequently indirectly in the Aleksovski decision, the
5 Prosecution understands and takes the view that the
6 Appeals Chamber is not a de novo finding of fact
7 function, that its role is circumscribed to a court of
8 review, and that was indicated and was the position of
9 the Prosecution in Tadic, in light of the need to
10 safeguard the right of appeal of an accused and the
11 Prosecution, that this should go back to a trier of
13 It may have been unclear, and I apologise if
14 it was on behalf of the Prosecution, but it's in the
15 remedy section and it deals with the appropriate remedy
16 if there is a finding, as indicated, of an error of law
17 and it wasn't a harmless error.
18 JUDGE HUNT: Well, then, is this what you are
19 now saying: You say that there was an error of law,
20 the documents which are attached to the submissions
21 will demonstrate that it was an error of law which
22 caused harm to the Prosecution's case, and, therefore,
23 you want a new trial?
24 MR. FARRELL: That's correct.
25 JUDGE HUNT: We're not going to see anything
1 more of the evidence other than the documents which are
2 attached to the appeal brief.
3 MR. FARRELL: That's correct.
4 JUDGE HUNT: Yes.
5 Well, Mr. Ackerman.
6 MR. ACKERMAN: Well, with all respect, Your
7 Honour, the Prosecution, without requesting an
8 opportunity to amend their briefs or anything of that
9 nature, has all of a sudden today, without any notice,
10 basically taken a completely new tack. What they had
11 requested in their briefs was that witnesses be brought
12 before the Trial Chamber and that then the Trial
13 Chamber should consider whether or not these materials
14 should be admitted.
15 Now, clearly they did claim that the Trial
16 Chamber erred in not admitting them either in rebuttal
17 or otherwise.
18 JUDGE HUNT: This is material that you've
19 answered in your submissions.
20 MR. ACKERMAN: I have answered it in my
21 submissions, yes, I have, and then it became clear to
22 me that they had apparently abandoned their option.
23 Now what they're asking is that you consider it as for
24 the purposes of whether or not there ought to be a new
1 JUDGE HUNT: Yes. They're limiting the
2 nature of the relief which they seek, that's all.
3 MR. ACKERMAN: I think adding to the nature
4 of the relief that they seek, that they didn't request
5 in their brief.
6 JUDGE HUNT: Well, they have elsewhere. I
7 can't recall whether it was in this particular section,
8 but they have elsewhere sought it in the alternative,
9 that the Appeals Chamber decided or send it back to the
10 Trial Chamber, and I don't see that you would be taken
11 by surprise by the alternative form of relief being
12 raised here.
13 MR. ACKERMAN: The real surprise, Your
14 Honour, is that it was never mentioned at the Status
15 Conference; it's not part of the schedule, not any of
16 the issues that were scheduled for us to hear. They
17 didn't mention it at the Status Conference, and I
18 firmly believe that they had abandoned their efforts.
19 JUDGE HUNT: I don't think you're correct on
20 that. One of the grounds of appeal which we have
21 listed is the one where, as I recall, the argument says
22 the Trial Chamber erred in ruling that they could not
23 lead this material in reply or as fresh evidence, and
24 they put up a fairly brave submission that the
25 Prosecution should not be restricted, as it always
1 seems to have been restricted, to putting in its case
2 in its case-in-chief, unless it is something which it
3 could not have foreseen. That's clearly there under
4 these grounds of appeal which have been listed for
5 argument today.
6 So on that basis, I don't think that you're
7 really taken by surprise as to the argument. If you
8 are taken by surprise in relation to the nature of
9 relief which they seek, that is matter which I'm sure
10 we will allow you to put something in writing if you
11 can't deal with it today.
12 MR. ACKERMAN: Your Honour, I can deal with
13 everything today.
14 JUDGE HUNT: I'm sure you can.
15 MR. ACKERMAN: Thank you.
16 JUDGE HUNT: Yes.
17 JUDGE RIAD: Just a short question,
18 Mr. Farrell.
19 MR. FARRELL: Yes, Your Honour.
20 JUDGE RIAD: You summed up Mr. Delalic's
21 position in your words that he had the authority to
22 communicate and intervene in relation to all parties.
23 That was the summing up.
24 MR. FARRELL: Yes, sir.
25 JUDGE RIAD: Just perhaps for further
1 information, you concluded that he had the -- then he
2 had the requisite ability to prevent and punish. He
3 was almost a mid-man. He was always between people.
4 Would that be enough to prevent and punish or to
5 report? What would be your conclusion?
6 MR. FARRELL: Thank you. The position is
7 that as the mid-man, as someone who is essential as the
8 link in this chain and as someone, as is evidenced by
9 the documents, that they are to report right back to
10 him, that he is in a position where he can have a
11 substantial -- I mean obviously it's a substantial
12 influence, the material ability, and that he can by his
13 ability to either take actions himself by indicating
14 it, or if he is not found to be somewhere within the
15 chain of command, he has the authority to report to the
16 appropriate -- he has access to all the appropriate --
17 if the command is the Territorial Defence in Konjic, he
18 has the authority, the links, and the reporting
19 mechanism to them and he is given the authority.
20 If he has to report -- if he can't -- if
21 there is no recourse of action there, he has the
22 ability, obviously, and the links with the supreme
23 command in Sarajevo, who have on two occasions, we
24 know, given him the authority to act on their behalf.
25 With respect to the investigative commission,
1 there is evidence that he is -- it appears on the
2 evidence, quite clear from the Trial Chamber, that he
3 is asked to proceed and direct a meeting of the
4 investigative commission and hand over a fax to them
5 indicating what their steps are to do.
6 Obviously he is used as the conduit, as the
7 Trial Chamber says, but not as the conduit without
8 knowledge. You can't have the responsibility of
9 being -- I'm sorry. You can't have the function and
10 power of being some type of person in authority and not
11 have the responsibility that comes with it. And that
12 responsibility, in our respectful submission, is to
13 report. Since he is not, as found by the Trial Chamber
14 on the facts as found, Your Honour, since he is not in
15 the direct chain of command over the subordinates, he
16 would, similar to the other cases we referred to, take
17 steps to report to ensure that there will be steps
18 taken to prevent or punish. That would be the
19 submission, Your Honour.
20 JUDGE RIAD: Thank you very much.
21 MR. FARRELL: Thank you.
22 JUDGE BENNOUNA: [Interpretation] Mr. Farrell,
23 one question for you. I go back to this issue of new
24 evidence. You said, in English, the Chamber erred in
25 excluding evidence, i.e., you said that the Chamber
1 choose not to take into account a certain number of
2 documents of evidence and that it erred in that sense.
3 Is that in any way linked to your position on
4 the legal aspect of the issue? If I followed you
5 correctly, when you don't apply the right legal
6 standard, the Chamber errs because it has not chosen to
7 take into account a certain number of facts. Is that
8 exactly what you said or am I misinterpreting you?
9 MR. FARRELL: I think that's a fair
10 submission, that the error in law by the Trial Chamber
11 with respect to the test to be applied to the documents
12 resulted in them excluding documents which they should
13 have considered and which should have been part of
14 their factual finding process. I think that's fair,
15 Your Honour, thank you.
16 JUDGE BENNOUNA: Thank you.
17 JUDGE HUNT: We'll take the break now. We'll
18 resume at 2.35, or for those who understand only the
19 24-hour clock, until 1435.
20 MR. FARRELL: I'm finished, subject to any
21 questions, my submissions, and just to be clear, I
22 will be finished now for the morning and Mr. Staker
23 will be addressing after the break the next Prosecution
24 ground of appeal, Your Honour.
25 JUDGE HUNT: Thank you.
1 --- Luncheon recess taken at 1.05 p.m.
1 --- On resuming at 2.40 p.m.
2 MR. MURPHY: Your Honour, I wonder whether I
3 might have just a moment of the Court's time on an
4 administrative matter. Referring to the Court's order
5 on the motion to admit evidence and take judicial
6 notice, the Court indicated that we should cause to be
7 translated two newspaper articles and file them by 4.00
8 today, and also, Your Honour, to translate the decrees
9 of the government of Costa Rica in regard to Judge
10 Odio-Benito's ministerial appointments.
11 JUDGE HUNT: Only if you want us to refer to
13 MR. MURPHY: Your Honour, we do. And I want
14 to report, Your Honour, that we have translated the two
15 articles. I've put those on Mr. Hawkins' desk and they
16 are now available.
17 Your Honour, the Prosecution had -- we took
18 responsibility for the press articles, Your Honour, and
19 the Prosecution took responsibility for the decrees.
20 I'm told those are not yet ready, but I've indicated to
21 the Prosecution, Your Honour, that I would have no
22 objection to an extension of time until tomorrow
23 morning for those to be filed, if that's convenient for
24 the Court.
25 JUDGE HUNT: Yes, certainly, but we've got to
1 get them in a time to be able to read them before the
2 argument starts, you see.
3 MR. MURPHY: Your Honour, I understand.
4 JUDGE HUNT: Yes, I see. Thank you very
5 much, Mr. Murphy.
6 MR. MURPHY: Much obliged, Your Honour.
7 JUDGE HUNT: Mr. Farrell.
8 MR. FARRELL: Your Honour, regarding the
9 information that you had requested, the case manager,
10 George Huber, is still trying to ascertain some
11 information. But what I can tell you, Your Honour, is
12 that I spoke with the Translation Unit. I expressed,
13 in very grave terms, our concern that these matters be
14 brought before the Court. The Translation Unit
15 indicated that they're looking into bringing people in
16 from the outside, but the best they can do at the
17 moment is the 19th, one week earlier than I had said
18 this morning, the 23rd. They said that they have a
19 number of people working on it and in the 250 pages,
20 taking two -- I'm sorry -- taking nine days, is what it
21 is, from now until that time frame, considering the
22 time -- the days off, is the best they can do.
23 JUDGE HUNT: But may I say this to you.
24 You're obviously going to need the documents to be
25 properly translated for the purposes of your motion.
1 At the moment we only are asking you to determine
2 whether you are going to make the motion. And for that
3 purpose, seeing you need an extension of time under
4 115, we would have to have some idea of what it is we
5 are dealing with. Now, that, surely, can be -- you
6 surely can give a succinct description of the material
7 you have based upon what you already have.
8 MR. FARRELL: Yes, sir.
9 JUDGE HUNT: You've had 12 people who are
10 called, I understand, investigators, and they're doing
11 more than just numbering the pages; they're reading
12 them. Indeed, when we suggested that you might supply
13 us with the summaries which they are producing, we were
14 told they contained work product. So there must be
15 something there from which you can provide us with a
16 description of the nature of the evidence which you
17 want to put in so that we know we're not dealing with
18 something completely up in the air.
19 MR. FARRELL: That's fine. Thank you. I was
20 going to address that second.
21 I have spoken with some of the investigators
22 and other members of the team. I have asked for
23 summaries of all the documents. I've asked for a list
24 to accord with Judge Bennouna's request. I expect
25 before the -- certainly before the end of this hearing,
1 I will be able to provide -- the office will be able to
2 provide a list of every document that we have, as best
3 as we can identify it, with some title, and a summary
4 of -- I'm not sure how many, but certainly a majority
5 of the documents we will give you a summary.
6 JUDGE HUNT: You have provided us with five
7 documents with proper translations. You were able,
8 actually, to give a brief description of them before
9 you got the translations.
10 MR. FARRELL: Correct.
11 JUDGE HUNT: Well, that's what we're seeking,
12 simply for the purpose of determining whether we extend
13 the time within which you may make the application.
14 MR. FARRELL: Thank you.
15 JUDGE HUNT: Of course, the application
16 itself would have to have the proper documents
18 MR. FARRELL: We will undertake to get as
19 many of the summaries as we can in light of the
20 original --
21 JUDGE HUNT: Well, now, that would bring
22 forward the time that you have to make up your mind
23 whether you want to proceed with this application quite
24 considerably, would it not?
25 MR. FARRELL: It would if we can get the
1 summaries and review them and present them to you, we
2 would --
3 JUDGE HUNT: But you have 12 people working
4 on it, and they have been working on it, as I
5 understand, since last Wednesday.
6 MR. FARRELL: Judge Hunt, I should maybe
7 clarify. Once again, I apologise if it's unclear. The
8 12 people are not investigators. They are people
9 within the evidence unit that input, transmit, and
10 summarise documents for identification purposes. They
11 are not anybody who knows about the case nor are they
12 translators. They're people whose function is simply
13 to take every document that comes in from the former
14 conflict in the former Yugoslavia and put an
15 identification number, summarise them to the extent,
16 Your Honour, that they can be identified for search
17 purposes and to then give a proper indexing number on
19 So, yes, you're correct that we can certainly
20 use this as a source of information to review it, but I
21 think to be clear, they're not investigators working on
22 this case.
23 JUDGE HUNT: Well, now, bearing in mind that
24 for the purposes of giving you an extension of time, we
25 only need to have a description of this material,
1 succinct, but, nevertheless, a description, when do you
2 suggest that you would be ready to give us that?
3 MR. FARRELL: Within -- I'm hoping that
4 within two days we can give you a succinct description
5 of at least all the documents that we think are
6 potentially relevant. I mean, I don't think with them
7 working as they have that we can give you a summary of
8 all 154.
9 JUDGE HUNT: No, no, but you must be able to
10 pick your best.
11 MR. FARRELL: We certainly will.
12 JUDGE HUNT: And you will not be held to that
13 in relation to your potential application. All we want
14 to be satisfied of is that we are giving you this
15 opportunity to file a motion with some prospects that
16 it will produce an issue which we really do have to
18 MR. FARRELL: Fair enough.
19 JUDGE HUNT: Well then, if you say two days,
20 that would mean what, at the end of business on
22 MR. FARRELL: Thank you.
23 JUDGE HUNT: Yes. Well, it's suggested that
24 perhaps we should give you till the first thing on
25 Thursday, but I think Wednesday afternoon, if you can
1 get it in, would be better. I prefer to be able to
2 read it before there's any discussion about it.
3 Hopefully Thursday will be our last day of the
5 Now, this will all be in writing. We'll have
6 some document we can sit down and read, one hopes, and
7 you'll be able to describe in that document why the
8 Trial Chamber, if it had had the material before them,
9 might have been -- would have come to a different
11 MR. FARRELL: Excuse me, Judge Hunt, that's
12 the actual Rule 115 motion you're speaking of.
13 JUDGE HUNT: Yes, but I'm not suggesting that
14 you have to put your motion in writing. We just want
15 to have some idea, such as you produced this morning,
16 of where it's relevant to the matters in the judgement.
17 MR. FARRELL: For the purpose of the material
18 on Thursday, for the purposes of the further
20 JUDGE HUNT: Yes. But bearing in mind you
21 have an extension of time, you have to demonstrate that
22 it's worth it, which would reveal part of your case at
23 least on the 115 application that we're going to permit
24 you to make --
25 MR. FARRELL: That would be the result.
1 JUDGE HUNT: -- if you produce something by
2 Thursday morning at the latest but hopefully by
3 Wednesday afternoon.
4 MR. FARRELL: If that's what's required for
5 the Appeals Chamber to determine the application for this
6 morning, then we'll make every effort to provide it.
7 JUDGE HUNT: Yes. Thank you very much.
8 MR. FARRELL: I'll pass it over to Mr.
10 JUDGE HUNT: Bearing in mind that the
11 Prosecution needs a variation of the time limit imposed
12 by Rule 115 for a motion to present fresh evidence in
13 the hearing of this appeal, and without intending to
14 lay down any hard and fast rules as to what must be
15 shown in such a motion, the Appeals Chamber believes
16 that it is reasonable to require the Prosecution to
17 file a document by first thing Thursday morning, the
18 8th of June, in which it states whether it proposes to
19 file such a motion, and if so, it describes succinctly
20 the evidence which it proposes to tender; it identifies
21 just how that evidence creates the significance
22 possibility that the Trial Chamber, acting reasonably,
23 would have convicted Mr. Delalic if that evidence had
24 been before it; and it specifies the period within
25 which, acting expeditiously, it will file that motion.
1 In the meantime, the Appeals Chamber will
2 treat the Prosecution's appeal against the acquittal of
3 Mr. Delalic as remaining open. If no such document is
4 filed within that time, the Appeals Chamber will treat
5 the Prosecution's appeal as closed.
6 If such a document is filed, the Appeals
7 Chamber will issue a scheduling order for the future
8 conduct of that motion.
9 The Appeals Chamber emphasises that the
10 Prosecution's obligations of disclosure under Rule 66
11 and 68 are still owed to Mr. Delalic, and for that
12 matter, to Mr. Mucic, and it expects full such
13 disclosure to take place at the time when the motion is
14 filed or within such further time as may be allowed.
15 Yes. Well, Mr. Staker, it's your turn, I
17 Yes, Mr. Yapa.
18 MR. YAPA: Your Honours be pleased. I do not
19 know whether I was remiss in my duty this morning when
20 I tendered the document on the order of argument
21 without explaining it. The next stage, there are two
22 grounds of appeal of the Prosecution, grounds 5 and 6,
23 which will be dealt with by Mr. Christopher Staker, and
24 thereafter, I presume that it will be the counsel for
25 Mr. Mucic on ground 7, who will make the --
1 JUDGE HUNT: Well, that's now ground 9.
2 MR. YAPA: I'm sorry, Your Honour.
3 JUDGE HUNT: And they have foreshadowed an
4 application to have the same attitude taken towards
5 their appeal as you have had towards yours. So we can
6 deal with those matters which we can, but their appeal
7 would remain open until it has had an opportunity of
8 seeing these documents.
9 MR. YAPA: Yes, Your Honour. Yes.
10 Thereafter, Your Honour, it will be the response of
11 counsel for Mr. Delic, that will be Mr. Moran, who will
12 be making the response in respect of our grounds 5
13 and 6.
14 JUDGE HUNT: Yes.
15 MR. YAPA: And it will be, thereafter,
16 Mr. Ackerman who will make the response in respect of
17 our grounds 1, 2, and 3.
18 JUDGE HUNT: Yes.
19 MR. YAPA: Thank you, Your Honour.
20 Mr. Staker will make his submissions now.
21 JUDGE HUNT: Yes, Mr. Staker.
22 MR. STAKER: May it please the Chamber. The
23 Prosecution's fifth ground of appeal relates to the
24 Trial Chamber's finding that Hazim Delic was not liable
25 as a superior under Article 7(3) of the Statute.
1 Mr. Delic was accordingly acquitted of the charges in
2 the indictment to the extent that they charged him with
3 responsibility as superior for acts committed in the
4 Celebici prison camp.
5 The relief sought by the Prosecution in
6 relation to this ground is set out in paragraph 8.1,
7 subparagraphs 4 and 5 of the Prosecution appeal brief.
8 The Prosecution seeks the reversal of the acquittals on
9 the accounts there mentioned. In relation to the
10 relief sought, I would also refer the Chamber to
11 paragraph --
12 THE INTERPRETER: Could we ask Mr. Staker to
13 speak a little more slowly, please.
14 JUDGE HUNT: You're also being asked to speak
15 more slowly.
16 MR. STAKER: Thank you, Your Honour.
17 I would refer also to paragraph 6.22 and 6.23
18 of the Prosecution appeal brief, which makes clear the
19 point, of course, that to the extent that any
20 subordinate of Mr. Delic was found not guilty on any
21 account, that Mr. Delic couldn't be found guilty as a
22 superior in relation to that count.
23 In this case, we submit the Trial Chamber
24 found that Mr. Delic was the deputy commander of the
25 Celebici camp. The relevant parts of the Trial
1 Chamber's judgement in which these findings were made
2 are set out in paragraphs 6.12 to 6.14 of the
3 Prosecution appeal brief, and we understand that this
4 finding of fact is in fact conceded by Mr. Delic in his
5 response brief at paragraph 245, and we therefore
6 submit that this appeal proceeds on the basis that
7 Mr. Delic was the deputy commander of the Celebici
8 prison camp.
9 In essence, what the Trial Chamber found was
10 that Mr. Delic was not criminally liable as a superior
11 because there was no evidence that he lay in a specific
12 chain of command between the guards committing the
13 crimes and Mr. Mucic, who was the -- who was found to
14 be the commander of the prison camp. The Trial Chamber
15 therefore appears to have considered the possibility
16 that there was a chain of command going from the guards
17 directly to the prison commander that bypassed the
18 deputy commander.
19 As the Trial Chamber said, and I would just
20 quote briefly from paragraph 810 of the judgement:
21 "After having reviewed the relevant
22 evidence before it, the Trial Chamber finds that the
23 Prosecution has failed to establish beyond reasonable
24 doubt, that Hazim Delic lay within the chain of command
25 in the Celebici prison camp, with the power to issue
1 orders to subordinates or to prevent or punish criminal
2 acts of subordinates. Accordingly, he cannot be found
3 to have been a "superior" for the purposes of ascribing
4 criminal responsibility to him under Article 7(3) of
5 the Statute."
6 We submit that it's apparent from this
7 passage that the Trial Chamber treated the superior
8 responsibility of Mr. Delic as turning on whether or
9 not he lay within a specific chain of command between
10 the guards and Mr. Mucic. This reflects the Trial
11 Chamber's finding at paragraph 647 of its judgement,
12 where it said that "The Trial Chamber is unable to
13 agree with the submission of the Prosecution that a
14 chain of command is not a necessary requirement for [sic] the
15 exercise of superior authority."
16 Now, my colleague Mr. Fenrick has presented
17 the Prosecution's submissions on the legal principles
18 governing superior responsibility, and these are also
19 dealt with at length in our written submissions. For
20 the reasons that have been given, the Prosecution's
21 submission is that superior responsibility arises from
22 the power to control the perpetrators in the
23 circumstances, and can arise even in the absence of a
24 direct chain of command between the accused and the
25 subordinate. However, it's also our submission that
1 even if the legal test applied by the Trial Chamber
2 were accepted as the applicable test, that the Trial
3 Chamber incorrectly applied that test to the
4 circumstances of this case.
5 Mr. Fenrick also presented the Prosecution's
6 submissions that superior responsibility can arise on
7 the basis of de facto as well as de jure authority. In
8 that connection, I would also make reference to the
9 recent decision of the Appeals Chamber in the
10 Aleksovski appeal, at paragraph 76, where the
11 possibility of de facto superior authority was
12 recognised as a possibility in the case of civilian
13 commanders as well as military commanders. This
14 possibility was dealt with in particular at paragraphs
15 354, 378, and 376 of the Trial Chamber's judgement.
16 Perhaps it's unnecessary to quote those
17 paragraphs at length, but the formulations used in
18 those paragraphs include wording, for instance:
19 "It is necessary that the superior have
20 effective control over the persons committing the
21 underlying violations ...in the sense of having the
22 material ability to prevent and punish the commission
23 of these offences."
24 And at paragraph 736 it's again stated that:
25 "It will be further observed that whereas
1 formal appointment is an important aspect of the
2 exercise of command authority or superior authority,
3 the actual exercise of authority in the absence of a
4 formal appointment is sufficient for the purpose of
5 incurring criminal responsibility. Accordingly, the
6 factor critical to the exercise of command
7 responsibility is the actual possession,or
8 non-possession,of powers of control over the actions of
9 subordinates. Hence, where there is de facto control
10 and actual exercise of command, the absence of de jure
11 authority is irrelevant to the question of a [sic] superior's
12 criminal responsibility for the criminal acts of his
14 So the test enunciated by the Trial Chamber
15 itself in this case was a test of effective control or
16 of actual exercise of authority or of material ability
17 to prevent and punish, and not a test of formal or de
18 jure chain of command.
19 So in relation to the specific case of Hazim
20 Delic, the question is: Did he have de facto or de
21 jure effective control or actual exercise of authority
22 over the guards in the camp?
23 The evidence and findings of fact in respect
24 of this are dealt with by the Trial Chamber beginning
25 at paragraph 798. Paragraph 798 and 799, there the
1 Trial Chamber refers to evidence that the detainees
2 regarded Mr. Delic as the commander or superior of the
3 guards and evidence that the guards referred to
4 Mr. Delic as "the boss."
5 At paragraph 803 there is set out further
6 evidence that Mr. Delic gave orders to the guards, that
7 the guards obeyed him and even feared him, and that
8 Mr. Delic would occasionally severely criticise or
9 shout at the guards.
10 Paragraphs 804 and 805 set out evidence that
11 he ordered guards to mistreat the detainees. In
12 relation to the incident referred to in the former of
13 those two paragraphs, paragraph 804, the Trial Chamber
14 found that it had not been proved that the beatings had
15 been ordered by Mr. Delic, but in relation to the
16 incident referred to in the second of those two
17 paragraphs, paragraph 805, two witnesses testified that
18 Mr. Delic ordered or commanded the guards in the
19 collective beating, and the Trial Chamber made no
20 finding that this evidence was unreliable.
21 Further evidence is also referred to in
22 paragraphs 801 and 802, although this evidence was
23 given by Mr. Delic's co-accused, Mr. Landzo, on which
24 the Trial Chamber found it did not rely unless
25 supported by other evidence.
1 Furthermore, as I already said, it was found
2 that Mr. Delic was the deputy commander of the prison.
3 In other words, after Mr. Mucic, Mr. Delic was the most
4 important and influential person in the camp with
5 organisational functions in respect of running of the
6 camp, which were set out in paragraphs 807 to 809 of
7 the Trial Chamber's judgement.
8 The Trial Chamber concluded that all of this
9 evidence was insufficient to establish Mr. Delic's
10 superior responsibility. Its specific finding is at
11 paragraph 806 of the judgement, where it says:
12 "In conclusion, this evidence is indicative
13 of a degree of influence Hazim Delic had in the
14 Celebici prison-camp on some occasions..... However, this
15 influence could be attributable to the guards' fear of
16 an intimidating and morally delinquent individual who
17 was the instigator of and a participant in the mistreatment
18 of detainees, and is not, on the facts before this...
19 Chamber, of itself indicative of the superior authority
20 of Mr. Delic sufficient to attribute superior
21 responsibility to him."
22 The Prosecution submits that this finding is
23 unreasonable in the sense that no reasonable trier of
24 fact could have reached this conclusion on the evidence
25 before the Trial Chamber.
1 The evaluation of the evidence in relation to
2 Mr. Delic can be contrasted with the approach that the
3 Trial Chamber took in relation to Mr. Mucic, whom the
4 Trial Chamber found on the evidence before it to be the
5 de facto commander of the camp. In evaluating this
6 evidence, the Trial Chamber said, and I would quote
7 here from paragraph 750 of the judgement:
8 "It seems inescapable, from the testimony of
9 all the detainees that they acknowledged Zdravko Mucic
10 as the prison-camp commander. The detainees came to
11 this conclusion because Hazim Delic called him the
12 commander, or because Mr. Mucic introduced himself as
13 the commander, or because his behaviour towards the
14 guards was that of a commander. The Trial Chamber
15 considers the last of these factors the most
16 significant for the purposes of ascribing superior
17 authority. Concisely stated, everything about
18 Mr. Mucic contained the indicia and hallmark of a de
19 facto exercise of authority. Even in the absence of
20 explicit de jure authority, a superior's exercise of de
21 facto control may subject him to criminal liability for
22 the acts of his subordinates. Where the position of
23 Mr. Mucic manifests all the powers and functions of a
24 formal appointment, it is idle to contend otherwise."
25 That's the end of the quote.
1 Now, if similar reasoning is applied to the
2 evidence in relation to Mr. Delic, what inference must
3 be drawn? We have the person who is the deputy
4 commander of the camp. He's perceived by the detainees
5 to be the commander of the guards, he gives orders to
6 the guards, he's obeyed by the guards, and he's
7 referred to by the guards as "the boss." The
8 Prosecution submits that the only reasonable inference
9 that the Trial Chamber could have drawn from this
10 evidence was that de facto, if not de jure, Mr. Delic,
11 as the deputy commander of the camp, exercised actual
12 authority over the guards.
13 The conclusions that the guards only obeyed
14 his orders because they feared him as an intimidating
15 and morally delinquent individual is, in our
16 submission, not a conclusion which any reasonable trier
17 of fact could draw from the evidence. In any event,
18 even if subordinates do fear their superior as an
19 intimidating individual, this is irrelevant to the
20 superior's status as a superior.
21 The issue here is whether Mr. Delic, the
22 deputy commander of the camp, in fact exercised
23 effective authority over the guards, de facto or de
24 jure, and it's submitted that the only reasonable
25 conclusion is yes. Whether or not it was officially or
1 formally the duty of the deputy commander of the camp
2 to exercise that function, de facto the deputy of the
3 commander did exercise that function, and there was
4 thus a de facto chain of command between the guards,
5 Mr. Delic, and Mr. Mucic.
6 For Mr. Delic to be responsible as a superior
7 under Article 7(3) for the crimes committed by the
8 guards in the camp, it's also necessary to establish
9 that he had reason to know of these crimes and failed
10 to prevent or punish them. This is dealt with in the
11 Prosecution appeal brief at paragraphs 6.18 to 6.21.
12 It's conceded that because the Trial Chamber
13 concluded that Mr. Delic was not a superior for the
14 purposes of Article 7(3), it declined to make findings
15 on these issues. That was stated at paragraph 810 of
16 the judgement. However, the Prosecution submits that
17 on the findings of fact made by the Trial Chamber in
18 the case as a whole, no reasonable conclusion could
19 have been drawn by any trier of fact other than that
20 these elements of superior responsibility were
21 satisfied, and on this basis the Prosecution submits
22 that it's possible for the Appeals Chamber to
23 substitute verdicts of guilty on the Article 7(3)
24 counts in the case of Mr. Delic.
25 Unless the Chamber has any questions in
1 relation to that ground of appeal, I propose to move to
2 the Prosecution's ground 6.
3 May it please the Chamber. The Prosecution 6th
4 ground of appeal relates to the Trial Chamber's finding
5 that Mr. Delic was not liable as charged in Count 48 for
6 the unlawful confinement of civilians in the Celebici
7 camp. Mr. Delic was charged under both Article 7(1),
8 and Article 7(3) in respect of this crime, and although
9 this ground of appeal has been included in group 1 of
10 the issues for the purposes of oral argument, in fact
11 the Prosecution's principal argument in relation to
12 this ground of appeal is based on Article 7(1) in
14 The Trial Chamber found that civilians were
15 unlawfully confined in the Celebici camp, and it
16 further found that Mr. Mucic, the commander of the
17 prison, was guilty of their unlawful confinement.
18 Mr. Delic, the deputy commander, was similarly charged
19 but was found not guilty for the simple reason that the
20 Prosecution had failed to demonstrate that Mr. Delic
21 was in a position to effect the continued detention of
22 civilians in the Celebici camp.
23 That finding was made at paragraph 1144 of
24 the Trial Chamber's judgement. It said in that
25 paragraph that because of that circumstance, Mr. Delic
1 cannot be deemed to have participated in the offence.
2 The Prosecution submits that as a matter of
3 law, this reasoning contains a plain error. It assumes
4 that only persons who had the authority to order the
5 release of detainees from the camp could be liable for
6 their unlawful confinement. In other words, the Trial
7 Chamber treated the power to effect the release of the
8 victim as an element of the crime. The Prosecution
9 submits that this is not an element of the crime of
10 unlawful confinement of civilians.
11 The unlawful confinement of a large number of
12 civilians, as occurred in this case, is obviously
13 something which no individual can effect
14 single-handedly. The continued detention of so many
15 people could only be effected by a body of camp
16 personnel and others acting in concert.
17 As noted in the Prosecution appeal brief, any
18 detainee who had attempted to leave the camp would have
19 been prevented from so doing not by the camp commander
20 but by one of the camp guards.
21 The most immediate cause of each detainees
22 confinement and the most immediate obstacle to their
23 liberty was thus the camp guards, and the reality is
24 that all of the victims could have simply walked out of
25 the camp at any time if the guards hadn't been there to
1 prevent them from so doing.
2 I submit there may be an analogy with the kind
3 of situation that arose in the Erdemovic case, where an individual
4 subordinate is ordered in that case to kill numbers of victims.
5 Now, it may be that the accused was acting
6 under superior orders and it may be the accused had no
7 choice over who the victims would be and who would be
8 killed and who would be released, but that doesn't
9 affect the criminal liability of the accused.
10 We would submit here that if an individual
11 camp guard is standing at the door of a building in the
12 camp, and by standing there is preventing civilians
13 within that building from leaving, that individual camp
14 guard is detaining those civilians, which is the actus
15 reus of the crime of law of unlawful confinement of
16 civilians, and we would say that the guard would be
17 found guilty of that crime, even an individual guard,
18 provided that the guard had the necessary mens rea.
19 To have the requisite mens rea, the
20 individual guard or other member of the camp personnel,
21 in our submission, would need to know that the
22 detainees in the camp were being unlawfully confined
23 and must, nonetheless, have continued to participate in
24 the illegal confinement of those people.
25 By saying that the individual guard must have
1 known that they were unlawfully confined, I don't mean
2 that the guard must necessarily have known what the law
3 is because ignorance of the law is not universally
4 recognised as a defence to a criminal charge.
5 An accused committing grave breaches of the
6 Geneva Conventions, in our submission, should not escape
7 criminal liability merely because the accused says that
8 he or she has never heard of the Geneva Conventions or
9 doesn't know what their provisions are. This is a
10 matter which is dealt with in more detail in paragraphs
11 8.12 to 8.18 of the Prosecution response brief.
12 In our submission, it's enough that the
13 individual guard knows, for instance, that the
14 detainees are civilians associated to the opposing
15 party in the armed conflict, knows that they pose no
16 threat to the state, and knows that they are only being
17 detained as a collective measure and not as a
18 legitimate security measure, and if that's established,
19 the Prosecution submits that there is the necessary mens
21 If an individual guard has this knowledge
22 and, nonetheless, continues to participate in the
23 detention, he or she may be criminally liable. As I
24 say, superior orders are not a defence to a crime under
25 the Statute.
1 The Prosecution submits that the position of
2 the Prosecution and that of Mr. Delic on this issue
3 may, in fact, not be all that far apart. It is
4 conceded that the individual personnel, particularly
5 those at the lowest level in the camp, may have little
6 knowledge of the individual circumstances of the
7 detainees and may not be in a position where they could
8 reasonably be expected to have any idea of the
9 particular circumstances or background to why the
10 detainees happen to be there.
11 And on this issue, I would quote directly
12 from paragraph 265 of the response brief filed on
13 behalf of Mr. Delic, at Registry pages A2393 to A2392.
14 This paragraph says and I quote: "At some point, it
15 becomes clear that confinement is unlawful, just as it
16 becomes clear that a military order is unlawful.
17 Clearly, the confinement in the Auschwitz concentration
18 camp in [sic] World War II was illegal. Guards who unloaded
19 trains, separated men from women, oversaw the
20 selection process and herded the sick and old to the
21 gas chambers could not believe that they were engaged
22 in lawful activity.
23 "Just as clearly, the warden of a prison who
24 accepts an inmate based on a judgement of a competent
25 court is acting legally even if that judgement is later
1 overturned on appeal.
2 The instant case falls somewhere between the
3 two extremes".
4 Well, even accepting that, the question then
5 is: In this case which side of the line does Mr. Delic
6 fall? The evidence of Mr. Delic's knowledge on which
7 the Prosecution relies is set out in 7.16 of the
8 Prosecution appeal brief and paragraph 7.5 of the
9 Prosecution reply brief.
10 The Prosecution submits that on the basis of
11 that evidence, the only reasonable conclusion that
12 could have been drawn by the Trial Chamber is that
13 Mr. Delic, like Mr. Mucic, was aware that the civilians
14 detained in the camp were detained on the basis of
15 their ethnic background and their detention was not a
16 legitimate security measure, and to the extent that the
17 detention of any of the detainees might have been
18 originally justified by any security concern, that no
19 proper inquiry had been undertaken into their status to
20 ensure that those civilians who could not be lawfully
21 detained were immediately released.
22 Those are the Prosecution's submissions into
23 Mr. Delic's liability under Article 7(1).
24 In relation to his liability under
25 Article 7(3), the appeal, to that extent, would lie on
1 a finding that there were subordinates of Mr. Delic who
2 committed the crime of unlawful confinement of
3 civilians. So, of course, to that extent, it's
4 dependent also on the outcome of the fifth ground of
5 appeal relating to his status as a superior.
6 It also depends on a finding then that there
7 were individual guards within the camp, of which
8 Mr. Delic was the superior, who also had the requisite
9 degree of knowledge that would make them criminally
10 liable for such a crime so that Mr. Delic could incur
11 criminal liability as a superior.
12 The Prosecution concedes that the Trial
13 Chamber made no express finding to the effect that
14 there were individual guards who had knowledge of the
15 facts that the civilians there were being detained in
16 circumstances which would render that detention
18 The Prosecution submits, however, that on the
19 basis of the evidence as a whole, the inference must be
20 drawn that at least some of the guards must have been
21 aware of this.
22 To give one example, in paragraph 1269 of the
23 Trial Chamber's judgement, the testimony of one witness
24 is referred to, which is not rejected by the Trial
25 Chamber, "that at one stage Mr. Delic walked into
1 Hangar Number 6 and told us that we were [sic] all detained
2 because we were Serbs." There thus appears to be no
3 suggestion that the circumstances of the detainees
4 within the camp was a matter that was secret or
5 confidential in any way.
6 Given also the composition of the detainees,
7 for instance, the fact that it included elderly men of
8 60 or 70 years of age, and in respect of that I would
9 refer to the Trial Chamber's judgement at paragraphs
10 823, 839, 850, and 982, and given the way that the
11 detainees were being treated, it's submitted that the
12 only reasonable inference would be that the guards, or
13 at least some of them, were aware that this was a kind
14 of collective measure aimed at the detainees on the
15 basis of their ethnic background and not a legitimate
16 security measure.
17 However, if the Appeals Chamber doesn't
18 accept that this is the only reasonable inference that
19 can be drawn in respect to in the evidence before the
20 Trial Chamber, the Prosecution would request that the
21 acquittal on Count 48 be reversed to the extent of the
22 alleged liability under Article 7(1) of the Statute
23 even if not under Article 7(3) as well.
24 Those are the Prosecution's submissions on the
25 Prosecution's sixth ground of appeal.
1 JUDGE HUNT: Thank you, Mr. Staker.
2 Now, Mr. Moran.
3 MR. MORAN: Thank you, Your Honour. If I
4 might have a second to get organised.
5 JUDGE HUNT: Yes.
6 MR. MORAN: May it please the Court. Your
7 Honour, I'm Tom Moran, and along with Salih Karabdic, I
8 represent Hazim Delic in this case.
9 I would first like to talk about command
10 responsibility, and, frankly, I think both sides have
11 written more on command responsibility than the Appeals
12 Chamber wants to read, and it's been pretty well
14 What I'd like to do is just clear up, I
15 think, some ambiguities we may have had and be
16 available to answer questions for the Court.
17 Command responsibility, simply put, holds a
18 commander or a person liable for the criminal acts of
19 others, even if he has no connection with those acts.
20 It's a vicarious type of liability that's different
21 from a personal responsibility which could be on a
22 commander or any other person who orders a crime, aids
23 and abets it, takes part in it, encourages it.
24 The doctrine of command responsibility
25 traditionally has been a rapier, something used at a
1 point target. The Prosecutor wants to turn it into
2 some kind of a two-handed broadsword to hold people
3 criminally liable when they can't find any other way to
4 do it.
5 The theory behind the legal doctrine is based
6 on the nature of command. The first real command
7 responsibility document I found is cited in
8 paragraph 40 of my brief. It's a regulation adopted by
9 the United States Continental Congress in 1775, holding
10 commanders responsible for the acts of their
11 subordinates on a march if they looted, stole chickens,
12 things like that. It said if they didn't punish them,
13 then the commander would be held liable just as if he
14 committed the offence.
15 The basis of military command is that the
16 commander is responsible for everything his unit does
17 or fails to do. Command is the personal authority to
18 enforce the will on subordinates. Commanders can
19 delegate that responsibility -- or that authority,
20 rather, but they can never delegate the
21 responsibility. The responsibility remains with the
22 commander, not the Chief of Staff, not the first
23 Sergeant, not the chaplain, with the commander. In
24 fact, The Hague convention and the first three Geneva
25 Conventions from 1949, when they're talking about what
1 is a legitimate belligerent, requires that these units
2 be commanded by a commander responsible for his
4 Literally on my way to the airport to come
5 here, I picked up a book just to read on the aeroplane,
6 an autobiography written by an Admiral of the United
7 States Navy in World War II, and there's a little
8 something that he said in there that I thought I would
9 read to the Appeals Chamber.
10 When he became commander of a ship, one of
11 his subordinates issued an order which, if it wasn't
12 illegal, was really stupid and could have got the
13 Captain relieved, and it was put into effect. The
14 minute he found out about it, he stopped it. He says
15 in his autobiography: "Of course, I knew nothing about
16 this order and would never have sanctioned it if I had
17 known, but it happened on my ship. It was my duty to
18 indoctrinate all officers of that ship so they wouldn't
19 think of doing any such stupid thing, to organise the
20 ship so such an order could not have been issued
21 without my knowledge, and to supervise what went on on
22 the ship closely enough so that I would soon find out
23 if such a blunder were committed. For failure in all
24 these respects, it would have been my duty to take the
1 That is command, Your Honours.
2 The scope of a commander's legal
3 responsibility under a command-responsibility theory is
4 coextensive with his authority. The broader the
5 commander's authority, the broader his duty. For
6 instance, the hostages case and the high command case
7 which Commander Fenrick [sic] talked about earlier
8 today made a distinction between an occupation
9 commander who has the full authority of the state to
10 exercise authority within a given area and a tactical
12 For instance, in the high command case, Field
13 Marshall von Leeb was held by the court not to be
14 responsible for abuses of prisoners of war because he
15 had no responsibility in that area.
16 Commander Fenrick [sic] and I seem to
17 disagree on whether or not Articles 86 and 87 are
18 codifications of the traditional Rule. However, we do
19 agree that you generally have to look to customary
20 international law, especially the post World War II
21 cases, the high command case and the hostages case, to
22 determine when a person is liable under a
23 command-responsibility theory.
24 The Prosecution relies specifically on three
25 cases to talk about command responsibility based on an
1 influence theory. Two of them came out of the Tokyo
2 tribunals. One was the conviction of General Muto and
3 the other was the conviction of the Foreign Minister
4 Hiroto. Let me just read something that was written by
5 a commentator about that, about the Tokyo Tribunal. It
6 says: "Because the Tokyo decision stands alone, its
7 presciencial value is ambiguous. It is unclear, on the
8 basis of the decision, whether one could conclude the
9 political and bureaucratic leaders have exactly the
10 same responsibility as do military leaders for the acts
11 of their subordinates. One reason why command
12 responsibility doctrine may differ for military
13 commanders and the others is that military commanders
14 do exercise command. They have control over
15 subordinates and a rigid hierarchical system with
16 disciplinary powers and the authority to order
17 subordinates. The scope of this military authority
18 includes the power to order subordinates to risk their
19 own lives, most bureaucratic leaders do not wield the
20 same type of life-and-death authority."
21 I agree with that completely.
22 When Mr. Fenrick wrote that in 1995, he was
23 absolutely right. He's still absolutely right today.
24 I think that the Tokyo decision is ambiguous, and
25 its -- even if it is not, it stands alone, when you
1 look at the other case law and the other customary law
2 on command responsibility, for holding non-commanders,
3 such as General Muto, liable on a
4 command-responsibility theory.
5 Clearly non-military people can be held
6 liable on a command-responsibility theory. I think
7 there is no question about that. But it is going to
8 have to be someone who has -- who is exercising powers
9 over subordinates which are substantially similar to
10 those of military commanders. That is going to be the
11 rare civilian indeed. It's going to be people like
12 high-ranking police supervisors, possibly high-ranking
13 bureaucrats that have policy-making powers and have the
14 powers to have substantial disciplinary action against
15 their subordinates.
16 Probably the best example of the superior is
17 in the Aleksovski case. He's the warden of a prison,
18 he was appointed the warden of a prison, he had the
19 authority over everything in that prison, and it didn't
20 make any difference whether he was military or civilian
21 so long as he had that kind of personal authority.
22 Let's talk about what a superior is not. A
23 superior is not necessarily someone who just holds a
24 higher rank than the person committing the crime. An
25 example would be the Chief of Staff in a military
1 unit. We know from the high command case and the
2 hostages case that the Chief of Staff is not criminally
3 liable on a command-responsibility theory even for his
4 own subordinates on the staff. The Court says he's not
5 liable because he lacks command authority. Yet that
6 Chief of Staff, by the very nature of his rank, is
7 going to be the senior person to many or most of the
8 unit's commanders. He will clearly be senior to every
9 company commander in the division and probably every
10 battalion commander and likely every brigade commander
11 or regimental commander.
12 Therefore, you have to look for the existence
13 of that personal power, that personal authority; not
14 delegated authority, not the authority that is
15 delegated from a commander to a staff officer or a
16 subordinate; the authority that is inherent in the
17 status of command.
18 I think every one of us that's ever been a
19 staff officer in any army at some point in our lives
20 signed a document for the commander. I know I did.
21 And most of the time the commander never saw it. But
22 it was his order. He was responsible for it. Now, if
23 I made a mistake, I was responsible to him, but I did
24 not have any command authority. All I had was what the
25 colonel gave me. It's the same in any military.
1 "Superior" doesn't mean someone who, through
2 some sort of force of personality, exercises some kind
3 of unofficial control over other people in a unit or in
4 a bureaucracy. It can't be that way for two reasons:
5 One, it could relieve that commander, that de jure
6 commander, of his responsibility. He could sit there
7 and say, "I couldn't control Ratko Mladic. He was out
8 of control. He is a stronger personality than I am."
9 That command responsibility has to reside with that
10 commander, and no one else.
11 As you can tell from reading my briefs, I
12 think I have -- the biggest problem I have with the
13 Trial Chamber's decision is this concept of de facto
14 commander, and the reason is that I'm not sure what one
15 is. If a de facto commander is someone like
16 Aleksovski, who was a civilian that was exercising the
17 same kinds of authority as a military commander,
18 without the title, then that's not a problem. And you
19 would also see, I think, de facto command more in an
20 internal armed conflict, where a rebel force would not
21 have the law to appoint a de jure commander. Whoever
22 is in command there is going to be a de facto commander
23 pretty much by definition. But when you start applying
24 this to people that may be exercising delegated
25 authority or may, through sheer force of personality or
1 other means, have influence, have control over troops,
2 you're muddying the entire concept.
3 Influence. I'm not sure what is sufficient
4 influence. This is a concept that I don't know how you
5 develop a legal test on. I don't think anybody does.
6 How do I know when this person had sufficient
7 influence, doesn't have sufficient influence, to be
8 held liable on a command responsibility theory under
9 the Prosecutor's view of the law?
10 Clearly, again in a military unit, the most
11 influential person in that unit other than the
12 commander is probably the chief of staff. He sits at
13 the commander's right hand. He is in charge of the
14 day-to-day running operations of the staff, which in
15 turn, do all of the things that the commander doesn't
16 have time to do. And yet that influential person is
17 not liable under a command responsibility theory.
18 If it's just powers of substantial influence,
19 I'll give you an example of one where you would have to
20 have substantial influence; that is, the staff judge
21 advocate of a military unit, the commander's lawyer.
22 If that lawyer doesn't have influence, and substantial
23 influence, on the commander, the commander ought to
24 fire him and get somebody who does have influence,
25 whose advice he does trust. And yet under the
1 Prosecutor's view, the staff judge advocate, who by
2 definition is a subordinate with no command authority,
3 could be the commander's superior if he exercises that
4 kind of influence. That's turning the entire process
5 on its head.
6 In criminal law we need to have some
7 certainty, and we should construe criminal laws
8 narrowly. Under this influence theory as put forward
9 by the Prosecution, I don't know how you could have any
10 certainty in the law on when someone is criminally
11 liable based on influence. The Prosecutors themselves
12 say you have to look at it on a case-by-case basis. If
13 you have to look at it case-by-case, there is just a
14 complete lack of certainty.
15 Knowledge is really not a factor in this
16 case, the knowledge available to a commander and the
17 knowledge that a commander has. The Prosecution, I
18 think, wants the Appeals Chamber -- somebody was
19 talking about academic exercise. It may have been
20 Judge Hunt, it may have been one of the Prosecutors. I
21 don't think that's something that the Appeals Chamber
22 needs to write on. But if you do, I think the starting
23 point is Article 7(3) of the Statute.
24 And if I could digress just slightly to talk
25 about the status of the Statute, exactly what the
1 Statute is, it's my position that the Statute does not
2 create crimes, does not define crimes. Those are
3 defined by other laws. The Secretary-General made that
4 clear in his report to the Security Council. What the
5 Statute does is create a court to try allegations of
6 violations of certain laws, in certain times, in
7 certain places, and give that court jurisdiction.
8 The words in Article 7(3) are "knew or had
9 reason to know that the subordinate was about to commit
10 such acts." That is different from the standard in the
11 high command case. In the high command case, the Court
12 held that a commander has the duty to get reports, and
13 if the reports aren't sufficient, he's derelict in his
14 duty and that's not going to be a defence.
15 I think there's no question that a commander
16 on any level is imputed with all of the knowledge in
17 his headquarters. That's the only way that the system
18 and the law can work.
19 A good example of that is the My Lai cases,
20 which I cited at some length. The company commander
21 knew that there was a massacre going on, and as soon as
22 he knew about it, he used his best means of
23 communications to stop it. That's the kind of
24 knowledge that Article 7(3) has, either imputed
25 knowledge, knowledge that would allow this person to
1 understand that there are crimes going on. I don't
2 think Article 7(3), which vests the Tribunal with
3 jurisdiction on command responsibility cases,
4 authorises you to look further than the knowledge that
5 was actually available to the commander and what he
6 could and should have been able to do with that
8 Going over the Prosecutor's argument just a
9 little bit, since -- punish. Different commanders have
10 different abilities to punish.
11 In the militaries that I'm familiar with,
12 non-commanders do not have the ability to impose
13 punishment in a legal means. They may be able to take
14 them out behind the barracks and beat them up, but they
15 don't have the authority to impose legal sanctions.
16 Mr. Fenrick talked about a doctrine called
17 command influence. Command influence -- and I wasn't
18 going to talk about it, but I think I probably should,
19 because it came out here. It had to do with a
20 commander's ability to interfere with military justice,
21 the discipline within the military. With the
22 militaries that I'm familiar with -- and I'm sure not
23 going to tell you that I'm an expert on every military
24 in the world -- it's the commander that decides whether
25 or not someone will be court-martialled, someone will
1 be tried for a crime. It's not the staff advocate,
2 it's not the military judge. It's the commander that
3 convenes the court and decides what the charges will
5 The doctrine of command influence simply says
6 that that commander cannot influence the result. The
7 commander cannot get what the members of the court, de
8 jure, if you would, and say, "Vote guilty," "Vote not
9 guilty." That's illegal command influence. The
10 commander has legitimate influence, legitimate
11 authority, the power to decide whether or not charges
12 will be filed and whether or not this Prosecution will
13 go on, another reason why command responsibility,
14 criminal liability, is limited to commanders and no one
16 Chain of command. The chain of command is
17 simple. It's a chain from commander to commander to
18 commander, from the highest level to the lowest level.
19 People who are not commanders are not in a chain of
20 command. It's just that simple. Therefore, people who
21 are not commanders don't -- should not be held liable
22 on that command responsibility theory.
23 Mr. Ackerman is going to talk about this at
24 some length, but let me -- I've noticed in my notes the
25 Prosecution talked about a link, one person being a
1 link between the investigating commission, the supreme
2 command, the municipal government in the Konjic area,
3 and therefore he had influence and he was a superior
4 within the meaning of the doctrine of command
5 responsibility. Just because a person is a link does
6 not make him a commander or a superior. A liaison
7 officer is a link. The radio telephone operator is a
8 link. The fellow that drives the Jeep carrying the
9 messages is a link. The chief of staff is a link. The
10 chief of staff's job is to put all this information
11 together for the commander so that the commander can
12 understand what is going on.
13 Mr. Staker was talking about directly
14 involving Mr. Delic, that we agree he was a deputy
15 commander. We do agree that he was a deputy commander
16 at the times relevant to the indictment. And in fact,
17 sometime after the events alleged in the indictment, he
18 became the commander for a short period of time. There
19 is nothing in the indictment, nothing in the judgement,
20 which is relevant to his time as commander.
21 The fact that he is perceived by the
22 detainees as the commander of the guards is absolutely
23 irrelevant to anything. The fact that he could give
24 orders to the guards does not necessarily show he was a
25 commander. There is this delegated authority that the
1 Chief of Staff has, that other people have, that we
2 talked about in command. The fact they called him
3 boss, I don't think that makes any difference.
4 When you're deciding the issue on Mr. Delic,
5 one of the things I think the Court needs to recall is
6 that in the high command case, dealing with the Chief
7 of Staff for an army group, the Court specifically said
8 that the Chief of Staff is not responsible for his own
9 subordinates on the staff, the people that report to
10 him, and the reason he was not held criminally liable
11 for their acts is because he was not a commander; he
12 lacked command responsibility. He was, if anything, a
14 Unlawful confinement. Then I'm going to sit
15 down. I'm not going to take too much more time here.
16 The unlawful confinement count centres not on the
17 conditions of confinement but the fact of confinement
18 itself. I don't know of a civilised society -- and as
19 soon as I say that, I'm sure there will be one.
20 Someone will point one out to me -- where the people
21 that run gaols, that run prisons, also make the
22 decisions on who goes in and out of that prison.
23 Clearly, Mr. McFadden, the commander of the UN
24 Detention Unit, does not go behind an order from this
25 Court on whether or not someone should be
1 incarcerated. If a judge on this Court, or the
2 authorities here, make a mistake on the existence of
3 probable cause, Mr. McFadden doesn't care. All he
4 cares is that the legitimate authorities, in an order
5 that is not obviously on its face illegal, ordered him
6 to take custody of these people.
7 The same situation applies in the Celebici
8 prison. These people that were held in the Celebici
9 prison were taken into custody after a battle with the
10 legitimate forces of the government of
11 Bosnia-Herzegovina, the government that was recognised
12 by many countries in the world, the government that had
13 a seat in the General Assembly. It was in the middle
14 of a war.
15 Clearly the authorities have the right to
16 take those people into custody, at least long enough to
17 sort it out. But who sorts it out? Is it the gaol
18 guards or is it some other authority that sorts it
19 out? I submit to you that it's some other authority
20 other than the gaol guards.
21 The confinement of those people there was not
22 obviously illegal. The Prosecution says that all
23 that's necessary to show mens rea is that the guards
24 knew that there were civilians being confined, they're
25 part of an imposing side, and they're held as a
1 collective measure.
2 Well, there is more, I think, that's required
3 than that, as -- when I had my brief read back to me,
4 it's correct. If you're a guard at Auschwitz, you know
5 that you're engaging in illegal confinement. But how
6 about confinement of people who have, or at least
7 there's probable cause to believe, have engaged in
8 armed conflict with your legitimate government? Does a
9 prison guard at that point have some kind of criminal
10 liability if the legitimate organs of the state don't
11 promptly investigate or if they don't properly
12 investigate? I don't think so. I don't think there is
13 any more criminal liability than there would be on any
14 other gaoler who accepts prisoners, detains prisoners,
15 on the order of a court or some other authority, and
16 then on the authority of that court releases them.
17 Your Honours, I promised to keep this short,
18 and I don't know if I've kept it short enough. But
19 unless there's some questions from the Appeals
20 Chamber ...
21 JUDGE HUNT: Can I just get your position
22 clear? You are not seeking to support the Trial
23 Chamber's decision that the customary law had been
24 altered by Additional Protocol I; you simply say that
25 this Tribunal has no jurisdiction because of the
1 limitation you see in Article 7(3).
2 MR. MORAN: Your Honour, as to knowledge, as
3 to knowledge only, which in my view is not an issue in
4 this case. And anything that the Appeals Chamber would
5 write would be pure dicta. But that is my view of it,
6 that the limitations that are imposed in the Statute
7 are limitations on the jurisdiction of the Tribunal.
8 And I'll give you -- there could be good
9 reasons for that, Your Honour. It very well could have
10 been that the Security Council decided that some
11 people, given the resources that are available,
12 remembering that at the time that the Statute was
13 passed, there were only 11 Judges, two Trial Chambers
14 and the Appeals Chamber, that there's a limited number
15 of people that can be tried by this Court, and that
16 limitation on jurisdiction could be a way of limiting
17 the number of trials that would come before the
19 JUDGE HUNT: That would include, would it
20 not, the suggestion that we should be only trying the
21 small fry and not the big fish, if I've got the --
22 MR. MORAN: Your Honour, I think you may have
23 turned it around, but that is -- I somehow don't think
24 that in the Secretary-General's office, when the
25 Security Council was considering establishing the
1 Tribunal, that they thought about some of the people
2 that have been tried here, which is not to say that
3 there should be, you know, just carte blanche you try
4 the defendants that you have.
5 JUDGE HUNT: No, no, but your suggestion, as
6 I understand it, is that we should not be trying
7 anybody for superior authority unless there's some --
8 they fall into a much narrower area than the customary
9 law permitted, but we should be trying the people who
10 are the actual perpetrators, in other words, the
11 smaller fry.
12 MR. MORAN: Your Honour, what I'm saying on
13 command responsibility is that those commanders who are
14 in command and have their subordinates commit crimes
15 should be tried, and if the Prosecutor can prove that
16 they knew or had reason to know that a crime had been
17 committed or was about to be committed, they didn't
18 stop it or they didn't punish it. I'm just suggesting,
19 Your Honour, that that is somewhat narrower than the
20 standard set up in the high command case, requiring
21 reporting, and if the commander does not design proper
22 reports, holding him criminally liable on that basis.
23 It's just that the information where you could at least
24 draw an inference is there. He knew or should have
25 known, so that he can't exercise deliberate ignorance.
1 JUDGE BENNOUNA: [Interpretation] Mr. Moran, I
2 have a very specific question. It has to do with the
3 distinction between the de jure superior and the de
4 facto commander.
5 The Prosecutor has made the distinction
6 saying that finally what counts in respect of
7 responsibility is the effective power of the superior
8 and not his legal position or his judicial position.
9 In order to understand this effective power and to
10 evaluate it, it says this comes -- this ordinarily
11 means that one has to look at things on a case-by-case
13 Apparently you have rejected that notion, the
14 proposal to evaluate things on a case-by-case basis,
15 saying that this does not show certainty. [In English]
16 "Complete lack of certainty if one has to look on a
17 case-by-case basis." [Interpretation] That's what you
18 said. I don't see how one can personally examine
19 somebody's effective power without this being on a
20 case-by-case basis. The general rule is that there's
21 effective power, that is, the power that one actually
22 has, somebody about whom one knows that is giving
23 orders, that he's perceived as a superior, and this can
24 be proved only by looking at things on a case-by-case
1 Therefore, my question is to know whether you
2 mean that you are against the proposal which says that
3 responsibility depends upon effective power. Is that
4 what you're saying?
5 MR. MORAN: Your Honour, let me try and
6 clarify that. Let me think for a second. But my basic
7 position is this: that authority in a military setting
8 comes with command, and when you start blurring the
9 distinction between a commander and someone who is not
10 a commander, you start blurring the law. I think that
11 de facto command, and where you look at effective
12 authority, is probably much more relevant in a civilian
13 situation, where you're deciding: Is this civilian
14 bureaucrat or this civilian leader liable on a
15 command-responsibility theory? And even there you're
16 going to have some -- you're going to have to look at
17 some kind of effective control but the control that he
18 has also under the law.
19 JUDGE BENNOUNA: [Interpretation] Excuse me,
20 but you are familiar with the doctrine of the de facto
21 agent as developed in the Tribunal's case law and in
22 the Nicaragua case at the International Court of
24 MR. MORAN: Yes, Your Honour.
25 JUDGE BENNOUNA: [Interpretation] The de facto
1 agent, who is not necessarily somebody who has any type
2 of legal jurisdiction in any official way.
3 MR. MORAN: Yes, Your Honour. Your Honour, I
4 think we're here talking about apples and oranges, if
5 you would, and I know that you don't think so, but one
6 has to do with the responsibility of a state exercising
7 influence and control over its agents. For instance,
8 what the United States exercised over the contras in
9 the Nicaragua case. And that can make something an
10 internal armed conflict, an international armed
11 conflict. But when you start talking about a
12 command-responsibility theory, every commander has
13 agents. He just can't do everything himself. He's
14 going to have a staff. He's going to have an aid who
15 makes sure that he gets where he's supposed to be with
16 what he needs when he gets there. He's going to have a
17 Chief of Staff. All these --
18 JUDGE BENNOUNA: [Interpretation] Thank you.
19 I think I've got my answer, Mr. Moran.
20 MR. MORAN: Thank you, Your Honour.
21 JUDGE BENNOUNA: [Interpretation] Do you think
22 that the command responsibility theory is limited to
23 military personnel or does it extend to the political
24 arena as well.
25 MR. MORAN: Clearly, Your Honour, it extends
1 to the political arena. I don't think there's any
2 question about that. I think that it's a little more
3 difficult to apply in the civilian arena, and the
4 reason it's more difficult to apply is you don't
5 generally have, in the civilian world, the indicia of
6 authority and the ability to impose one's will on one's
7 subordinates that exist in the military. A military
8 commander can say, "Private, take that hill or I'll
9 send you to gaol." A superior, a supervisor in a
10 corporation can't say that. All he can do is fire
12 So you have to look at those indicia of
13 authority and the ability to impose his will in the
14 civilian arena. And I think it's a much more difficult
15 thing to do, which is why the commentators generally
16 talk about civilians with military command-like
18 JUDGE BENNOUNA: [Interpretation] Thank you
19 very much.
20 JUDGE HUNT: There is another question, but I
21 think we better take the break. But before we adjourn,
22 I should have announced earlier this morning that we
23 will take the group 3 grounds of appeal after group 4.
24 It seems to be a more logical way of looking at it. So
25 we'll go group 4 and then group 3. That will obviously
1 be sometime tomorrow.
2 We'll adjourn now until 4.30.
3 --- Recess taken at 4.00 p.m.
4 --- On resuming at 4.32 p.m.
5 JUDGE RIAD: Yes. Mr. Moran, good
7 MR. MORAN: Good afternoon, Your Honour.
8 JUDGE RIAD: I would like to follow further
9 your reasoning concerning what you said about the
10 commander's capacity to punish or to prevent. You
11 said, and I'll even try to quote you, you said the
12 commander has to have influence or power and to be able
13 to file and prosecute any action. Now, I quite
14 understand that as far as punishing is concerned. He
15 has to have, in fact, the means to prosecute.
16 Then my first question is: Does the fact
17 that he is -- of course, you are for the de jure
18 commander, not for de facto.
19 MR. MORAN: Yes, Your Honour.
20 JUDGE RIAD: All right. Consider granting
21 that, would the fact that he is a de jure commander
22 imply automatically or at least have some kind of prima
23 facie appearance that he can pursue the punishment or
24 is it an extra -- it's addition, he has to prove that,
25 although he is a de jure commander, we have to prove
1 that he has got the means to prosecute?
2 MR. MORAN: Your Honour, in my view, and this
3 is just going to be on the view of the militaries that
4 I'm familiar with, it is inherent in the position of
5 commander that he has the authority to order a case
6 prosecuted, to convene a court-martial. That division
7 commander is going to be the general court-martial
8 convening authority. He decides whether or not to do
10 JUDGE RIAD: He has the inherent power. So
11 really you do not mean to add it as an extra condition.
12 MR. MORAN: I wouldn't think so, Your Honour,
13 unless you've got a situation where there was a
14 military where a commander did not have that, and I
15 would think that would be more in the way of a defence
16 to a failure to punish allegation.
17 JUDGE RIAD: I'm glad you explained that to
18 me. I thought it was not inherent in his power, it had
19 to be proved, because you were rather forceful in this
21 MR. MORAN: Yes, Your Honour. Now, that is
22 with the military commander. Clearly a civilian
23 superior is not going to have that type of authority.
24 It's not going -- he might have the authority to fire
25 someone from their job or to reassign them to a
1 different position or something like that, but he is
2 not going to have the authority that a military
3 commander would have to put somebody in gaol.
4 JUDGE RIAD: I just would like to mention
5 that Article 7, paragraph (3), speaks of taking the
6 necessary and visible measures to prevent such acts or
7 to punish.
8 MR. MORAN: Yes, Your Honour.
9 JUDGE RIAD: Would that also apply to
10 preventing? I mean, would that exonerate him from
11 attempting at least to prevent, saying, "All right.
12 Since I cannot prosecute, I should not attempt to
14 MR. MORAN: No, Your Honour. I think that
15 the two are two separate duties on that commander.
16 One, he has the inherent duty as a commander to see
17 that he accomplishes his mission, whatever his assigned
18 mission is, within the realm of international law. He
19 has to do that. He has to organise his unit, he has to
20 supervise his unit in such a way that he accomplishes
21 his mission with an eye towards preventing violations
22 of the law. However, if they occur, and they do occur,
23 we all know they occur no matter how careful someone
24 is, then he has the duty to punish. But reason that he
25 has the duty to punish is because that prevents the
1 next one. That if a commander does not punish a
2 violation of the law in this case, then he is almost
3 encouraging his people to commit future crimes.
4 JUDGE RIAD: So this is inherent in his
5 position as a de jure commander.
6 MR. MORAN: It comes with the job, Your
8 JUDGE RIAD: We don't need to prove it. And
9 anyhow, even if he proves that he cannot prosecute, the
10 duty to prevent remains intact.
11 MR. MORAN: Clearly, Your Honour. Remember
12 this, the Statute and customary international law does
13 not say "prosecute," it says "punish," and commanders
14 have in their abilities other ways other than formal
15 convening of a court-martial to prosecute. There are
16 plenty of ways that a commander can punish one of his
17 troops without convening a court-martial, as I'm sure
18 you can imagine.
19 JUDGE RIAD: Thank you very much.
20 MR. MORAN: Judge Bennouna, I think I did not
21 answer one of your questions well, and I thought about
22 it over the break, so if I could try to do it.
23 You were talking about the lack of certainty,
24 and where I was thinking about lack of certainty was
25 this concept of influence, that when does someone have
1 the influence to stop crimes? At what point do they
2 have that? That's what I was talking about when I was
3 talking about lack of certainty, and I don't think I
4 made that clear enough to you.
5 JUDGE BENNOUNA: [Interpretation] Very
6 succinctly, Mr. Moran. The question of absence of
7 certainty in law deals with the rule of law itself.
8 MR. MORAN: Yes, Your Honour.
9 JUDGE BENNOUNA: [Interpretation] It does not
10 concern the consequences drawn from the rule of law or
11 the characterisation of a specific fact on the basis of
12 the rule of law. It certainty has to do with the rule
13 of law itself.
14 MR. MORAN: Yes, Your Honour, but you also
15 have --
16 JUDGE BENNOUNA: [Interpretation] Certitude of
17 the absence of certainty has to do with the rule of law
18 itself, and that's why -- well, the rule of law is
19 dependent on the state of customary law itself --
20 MR. MORAN: Yes, Your Honour.
21 JUDGE BENNOUNA: [Interpretation] -- in this
23 MR. MORAN: But it has to be certain enough
24 that I can advise my client, be it the commander or
25 whoever, that, "If you do this action, you're acting
1 within the law, and if you do that action, you're
2 liable to find yourself in The Hague."
3 JUDGE BENNOUNA: [Interpretation] Or
5 MR. MORAN: Yes, Your Honour, or elsewhere.
6 If there are no further questions.
7 JUDGE HUNT: Thank you very much, Mr. Moran.
8 MR. MORAN: Thank you, Your Honour.
9 JUDGE HUNT: Now, is it Mr. Kuzmanovic or
10 Mr. Morrison who's going to commence for Mr. Mucic?
11 MR. KUZMANOVIC: Your Honour, I'm going to be
12 speaking on factual argument for command responsibility
13 on behalf of Mr. Mucic.
14 JUDGE HUNT: Yes. Are you going to start?
15 MR. KUZMANOVIC: Yes, if you'd like, I would.
16 JUDGE HUNT: Whichever you prefer,
17 Mr. Kuzmanovic.
18 MR. KUZMANOVIC: Good afternoon, Your
19 Honours. May it please the Court. I didn't know
20 whether this is the beginning of the end or the end of
21 the beginning relative to this case, so in the grand
22 scheme of things, I'm going to just plunge ahead.
23 The Court, through Judge Hunt, has made it
24 clear to us that it did not want to hear us --
25 recitation of the briefing and it wanted to keep our
1 arguments rather succinct, and I will endeavour to do
3 It is the position of the Defence here of
4 Mr. Mucic that as far as command responsibility is
5 concerned, the Trial Chamber chose to adapt
6 insufficient evidence in concluding that he was the de
7 facto commander for the entire time period set forth in
8 the indictment.
9 It is our belief that its reliance on
10 evidence cited in the judgement is unreasonable, and
11 based upon this unreasonableness, the Appeals Chamber
12 can substitute its own finding for that of the Trial
13 Chamber pursuant to the Tadic and Aleksovski cases.
14 It is arguable that his status as commander
15 could be said to be extended from July forward. The
16 Trial Chamber, in our view, unreasonably backdated that
17 de facto command to May. The standard of review was
18 set forth in both the Tadic and the Aleksovski cases, I
19 believe, on factual finding. The Appeals Chamber in
20 Tadic found that factual findings or findings that
21 should stand is that the standard is unreasonableness,
22 that is, a conclusion to which no reasonable person
23 could have reached. It is only where the evidence
24 relied on by the Trial Chamber could not reasonably
25 have been accepted by any reasonable person that the
1 Appeals Chamber can substitute its own finding for that
2 of the Trial Chamber. It's contained within paragraph
3 64 of the Tadic judgement of 15 July 1999.
4 Although the Appeals Chamber has to give a
5 margin of deference to the Trial Chamber's evaluation
6 of the evidence presented at trial, the Appeals Chamber
7 can overturn the Trial Chamber's finding of fact where
8 the evidence relied on could not have been accepted by
9 any reasonable Tribunal or where the evaluation of the
10 evidence is wholly erroneous, and that comes from the
11 Aleksovski judgement, 24 March 2000, paragraph 63.
12 In addition to the arguments presented in the
13 various briefs, we will focus -- or I will focus on the
14 reasons why the Trial Chamber's conclusion that
15 Mr. Mucic was commander in at least May, June, and July
16 of 1992 was erroneous. And I think I agree with what
17 was defined earlier by Mr. Farrell, I believe, on what
18 Article 7(3) entails with respect to command
19 responsibility and those elements. And I also think
20 that the Aleksovski judgement in paragraph 70 is
21 applicable here, and we really don't disagree with it;
22 that is, anyone, including a civilian, may be --
23 THE INTERPRETER: Could counsel please slow
25 JUDGE HUNT: When you're reading, I'm afraid,
1 Mr. Kuzmanovic, you do speed up. It's a very natural
2 habit which we all have. So if you could just, when
3 you're reading, take it slowly.
4 MR. KUZMANOVIC: I apologise, Your Honour,
5 and I apologise to the translators.
6 Paragraph 70 of the Aleksovski judgement
7 states, and I quote:
8 "Anyone, including a civilian, may be held
9 responsible, pursuant to Article 7(3) of the Statute,
10 if it is proved that the individual had effective
11 authority over the perpetrators of the crimes. This
12 authority can be inferred from the accused's ability to
13 give them orders and to punish them in the event of
15 It went on to find that, "The appellant had
16 effective authority over the guards as shown by his
17 issuing orders to them and the availability to him of
18 means to report to superiors the situation in the
19 prison, including incidents of mistreatment of
21 I think the key language to focus on is
22 "effective authority," what constitutes effective
23 authority. Now, the indictment, paragraph 20, alleges,
24 among other things, that Mr. Mucic was the commander of
25 Celebici prison camp beginning from approximately May
1 to November 1992. That's as specific as the indictment
2 gets. His authority was, at least according to the
3 indictment, derived by being appointed by Zejnil
4 Delalic, whom the Trial Chamber had acquitted. The
5 Chamber has not reconciled Delalic's acquittal with the
6 source of Mucic's authority. Instead, the Trial
7 Chamber, in our position, and we hope in the Appeals
8 Chamber's position, used unreasonable testimony from
9 witnesses to attempt to legitimatise its finding that
10 he was the de facto commander from day one.
11 The Trial Chamber itself acknowledges in
12 paragraph 736 of its judgement that "Formal appointment
13 is an important aspect of the exercise of command
14 authority or superior authority." In that same
15 paragraph, the Trial Chamber also emphasised that "The
16 factor critical to the exercise of command
17 responsibility is the actual possession or
18 non-possession of powers of control over the actions of
20 Now, until today we have not had an
21 opportunity, although we have argued in the past, that
22 the formal appointment of Mr. Mucic had never taken
23 place until approximately the end of July 1992. And
24 I'm sure you're aware, having sat through many
25 different cases, that the value and importance of what
1 an appointment means, the fact that a document has been
2 signed, the fact that a document has been stamped, the
3 importance attached to orders and appointments, up
4 until today we have had nothing that we have argued to
5 show what in fact that appointment was, and obviously
6 that's something that's not in evidence and I won't
7 discuss it any further. But I think what the Trial
8 Chamber has done to try and impute de facto authority
9 to Mr. Mucic to the beginning, in May of 1992, is to
10 use instances of his mere presence in Celebici to be
11 proof positive of exercise of command. The testimony
12 pointed out by the Trial Chamber in paragraph 739 of
13 the judgement was, "At all times the de facto authority
14 in Celebici prison camp was Mr. Mucic."
15 Unfortunately, as Mr. Moran discussed, the
16 Trial Chamber gave us no guidance on what de facto
17 authority truly is and how it's defined. I think the
18 only way Justice Potter Stewart of the US Supreme Court
19 gave a definition once of what pornography is. He
20 said, "I don't understand it, but I know it when I see
21 it," and that perhaps is what the Trial Chamber has
22 done with de facto authority.
23 We have argued extensively that the date of
24 his actual appointment and authority is critical in
25 this case. And why? Why is it important to establish
1 a date of his command? Why is it relevant? Simply
2 because many of, if not most, of the bad acts that
3 occurred in Celebici camp took place in May, June, and
4 July of 1992. Now, excepting for purposes of our
5 argument that Mr. Mucic admitted and took command of
6 the camp at the end of July 1992, how can he be held
7 responsible for what happened in May, June, and July?
8 The Trial Chamber does agree, in paragraph 745 of the
9 judgement, that the Prosecution has the burden of
10 proving that Mr. Mucic was the commander of Celebici
11 prison camp and that the standard of proof in this
12 respect is beyond a reasonable doubt.
13 Moreover, while downplaying the actual date
14 upon which Mr. Mucic became a commander as being
15 unnecessary in the discharge of the Prosecution's
16 burden of proof, it framed the issue, in paragraph 745,
17 as whether he was the commander during the relevant
18 period as set forth in the indictment. We think that's
19 very important. The Trial Chamber boasted that there
20 was "a plethora" of evidence brought forth by the
21 Prosecution on the issue, backdating, so to speak, the
22 de facto authority in May of 1992. And it's our
23 submission that a reliance on that evidence is
24 unreasonable and an evaluation of that evidence is
1 I'd like the Trial Chamber to note that some
2 of the testimony relied upon by the Trial Chamber, and
3 I will go over some of it in detail, is inherently
5 The Trial Chamber cites the evidence of
6 several witnesses that give "evidence of the actual
7 exercise of authority over Celebici prison camp by
8 Mucic," and that's starting in paragraph 745 of the
9 judgement. The Trial Chamber states that Witness P
10 stated that Mr. Mucic transferred him in June 1992 from
11 Celebici. When one looks at the citation at page 4518
12 of the transcript, the transcript reveals that
13 Witness P was never transferred from Celebici in June
14 1992. Witness P also never said that Mr. Mucic was a
15 commander. Witness P only said that Mr. Mucic said he
16 was being forced to take over the camp sometime in the
17 future. That's at 4519 of the transcript. Why is that
18 important? Because the Trial Chamber cites Witness P
19 as stating that Mucic transferred him in June 1992,
20 when in fact that didn't happen. That's an example of
21 the Trial Chamber's unreasonableness on the, "actual
22 exercise of authority."
23 At paragraph 746 of the judgement, Witness N
24 claimed that Mr. Mucic was the commander because when
25 "Pavo" was to come to the hangar, Mr. Delic would say
1 the commander was coming. Now, if you look at the
2 transcript citation there at pages 1923 to 1924, the
3 question Witness N was asked was when did he see Mucic
4 for the first time. And the answer was he didn't
5 recall the exact date, but he remembered seeing him in
6 August 1992.
7 Now, I harp on this issue simply because,
8 again, the backdating of the de facto command to May of
9 1992 is being substantiated by witnesses that are cited
10 in the Trial Chamber's judgement. And we don't think
11 that the evaluation of that evidence, when you look at
12 it, was done in a reasonable fashion.
13 Also at paragraph 746 of the judgement,
14 Stevan Gligorevic, he was cited for giving testimony to
15 similar effect as Witness N and Witness P. The
16 question put to him relied upon by the Trial Chamber as
17 "exercise of authority" was: Did you see Mr. Mucic in
18 camp? And on page 1453 of the transcript, the answer
19 was, "I saw him, but I cannot determine the exact
20 time. I think it was the end of June/early July," and
21 this is in 1992.
22 But then the following question, or the
23 previous question, which is I think is critical, is on
24 1451 and 1452 of the transcript. Question: "Did you
25 see any of these now-named persons exercising command
1 in the camp?" And by "any of these now-named persons,"
2 he was referring to Delic or Delalic or Mucic. And the
3 answer was: "Yes, I saw Delic, because we all had to
4 obey him, because all the guards had to obey him and
5 they were even afraid of him. I don't know about Pavo
6 Mucic. I cannot recall when I saw him for the first
7 time. I cannot remember exactly, but I think it was
8 somewhere late June or early July."
9 So when you look at some of the citations in
10 the Trial Chamber's judgement to what evidence is that
11 shows "effective control," when you look at the
12 evidence, it doesn't show anything.
13 Interestingly, he was asked on the same page
14 of the transcript, that is, this particular witness,
15 Mr. Gligorevic, if and in what way you saw Delic
16 exercising command. The answer was: "That was
17 obvious. There was no question there. At least at
18 that time what was obvious is there was reasonable
19 doubt on behalf of Mr. Gligorevic's impressions of
20 Mucic as a commander.
21 Paragraph 746 of the judgement also cites
22 Vaso Dordic. On page 4348 of the transcript, the Trial
23 Chamber relies upon Dordic's testimony that Mucic
24 identified himself as the commander on July 13th. He
25 did not see Mucic but for one occasion ten days later.
1 And under cross-examination, Mr. Dordic pointed out
2 that he never mentioned July 13th in some other
3 statements that he gave to the OTP.
4 In paragraph 747 of the judgement, Mirko
5 Dordic, on page 4796 of the transcript, said he saw him
6 in camp once in June. The next time was the end of
7 July/beginning of August 1992.
8 Similarly, Mr. Branko Sudar, in transcript
9 page 5751. The only thing mentioned here is that Sudar
10 claims when Pavo Mucic's name was mentioned, the guard
11 stopped beating detainees. And then what's I think
12 interesting about that quotation is that he says, "In
13 the meantime, they said half of us should get ready to
14 go to Musala, Konjic, half of them left, then I stayed
15 behind. Then when the van came a second time, the rest
16 of us got in and we were driven to the sports hall in
17 Konjic, known as Musala." Nothing here mentions Mr.
18 Mucic's name or in any way associates him with the
19 transfer or that Mr. Mucic was ever even seen.
20 The Trial Chamber also in the judgement makes
21 a big deal about an exhibit, number 192, in an article
22 from an Arab newspaper which was shown to be copied to
23 the camp. Based upon the discussions at transcript
24 8476 to 8515, the Trial Chamber at that point didn't
25 put much validity into that. In fact, Judge Jan
1 stated, "It has appeared in the press, nothing more
2 than that." In our view, to cite that as authority for
3 Mucic as a commander is completely unreasonable. The
4 article itself gave no indication of reliability for
5 issues pertaining to command authority or command
7 Mr. Nedeljko Draganic, another witness relied
8 upon by the Trial Chamber in the judgement for vestiges
9 of command, in paragraph 756 stated in the transcript
10 that Mr. Mucic released him on 30 August of 1992 and
11 that he didn't recall when he first saw Mucic but saw
12 him one or two times. During his entire stay he is
13 quoted as saying, on pages 1612 and 1613, of the
14 transcript, "I didn't know who had authority," and he
15 was there for 90 days.
16 Dragan Kuljanin, there was no testimony with
17 respect to timing of command.
18 Mladin Kuljanin, in a transcript and cited in
19 the judgement, says he saw Mr. Mucic a couple of times
20 in the camp in September, and he was interviewed in
21 June in the camp, in the command building, by two
22 people, neither of whom were Mucic.
23 Paragraph 758 of the judgement has several
24 witnesses: Novica Dordic, Witness B, Zoran Ninkovic,
25 none of whom identified Mr. Mucic as the commander, or
1 had no idea who he was in terms of command.
2 Interestingly, Mr. Ninkovic, who said he saw
3 Mr. Mucic in Celebici for the first and last time on
4 June 6th, said in his transcript, "The first commander
5 who introduced himself was Rale Musinovic." That's
6 testimony on 51, 52, and at 51, 53 of the trial
8 What I'm driving at here, at least for the
9 sake of argument, is the only reasonable, credible
10 evidence of Mr. Mucic in command begins late July,
11 early August of 1992.
12 Now, we don't have a quarrel with the Trial
13 Chamber making the statement that Mr. Mucic was in
14 Celebici, present there before the end of May 1992. I
15 think that's pretty clear. However, using that
16 presence, the Trial Chamber, in our estimation, leaps
17 to the conclusion that not only was he present but he
18 was exercising de facto authority over the prison camp
19 and its personnel, and we believe, given some of the
20 testimony that I pointed out in oral argument thus far,
21 that that's unreasonable.
22 It's also unreasonable with respect to
23 control in May, June, and July of 1992, to cite
24 documents in paragraph 764 of the document, Exhibit 75,
25 84, 91, and 158. These are all documents signed at the
1 end of August. How this implies de facto control in
2 May, June, and July, to us, is beyond comprehension.
3 Interestingly, after a very important witness
4 testified on behalf of Mr. Delalic, his name was Sadik
5 Dzumhur, who was in the camp as a MUP commander in May
6 and June of 1992, after everyone got done questioning
7 him, Judge Karibi-Whyte, on 2305 to 2306 asked him a
8 series of questions about who -- "Do you know who the
9 person was in charge of the prisons at Celebici? Who
10 was the head at that time, up until June 15th of 1992
11 at least?" And Dzumhur answered: "Up until June 15th,
12 I know that a MUP unit was accommodated in Celebici and
13 that heading that unit was Rale Musinovic."
14 Then Judge Karibi-Whyte further followed up:
15 "And you know that the MUP was in charge of the
16 prisoners, they were looking after the persons detained
17 there?" And the answer is: "In that period, yes."
18 The further follow-up question the Judge
19 asked: "When did they cease to take charge of the
20 persons in the prison there?" Answer: "I don't know
21 exactly, but I said about mid-June new TO forces
22 arrived and several policemen remained behind."
23 Now, I don't think there is any question that
24 Mr. Mucic was not a member of MUP. We don't believe
25 that there's reasonable, credible testimony putting him
1 commander in May and June and most of July of 1992, and
2 ignoring Mr. Dzumhur's evidence and testimony makes the
3 conclusion that he was the commander at that time frame
4 de facto unreasonable.
5 While there is evidence of Mr. Mucic being in
6 camp before the end of July, such presence, in our
7 humble opinion, does not prove or indicate beyond a
8 reasonable doubt that he was at that given moment the
9 commander or the administrator of the camp.
10 As you will have surmised by reading the
11 judgement and by reading most of the documentation in
12 this case, entry into the camp by those who had no
13 function there was very easy to achieve.
14 The question that I put on the de jure or the
15 de facto control is where is the actual responsibility
16 or the actual evidence of superior authority in May,
17 June, and July of 1992?
18 That's why we urge, in reviewing the
19 judgement, that close looks are taken at some of the
20 citations that the Trial Chamber has used in the record
21 to "prove control" at the relevant time frames in May
22 to November of 1992, and we believe that no reasonable,
23 credible evidence exists to show that control existed
24 at least in May, June, and July of 1992.
25 Thank you very much Your Honours.
1 JUDGE HUNT: Thank you, Mr. Kuzmanovic.
2 Mr. Morrison.
3 MR. MORRISON: Your Honour, very few
4 submissions I wish to make partly, because most have
5 been made by my learned friend Mr. Moran, although
6 matters have been raised by the Prosecution with which
7 we take no issue, and also because it is suspected that
8 the documents that we hope will become apparent may
9 answer some of the questions in the affirmative that we
10 seek affirmative answers to.
11 JUDGE HUNT: Before you go on, we don't want
12 to forget that the status of your appeal or at least
13 how long it should be pending for, and before we finish
14 with you, we better be ready to sort that one out. I
15 don't want you to do it now, I just want to remind you
16 that we haven't dealt with it yet.
17 MR. MORRISON: To some extent I very much
18 appreciate that I'm being asked to calculate the length
19 of a piece of string at the moment, because we haven't
20 actually got the documents that may determine -- did I
21 misunderstand Your Honour? The whole length of the
23 JUDGE HUNT: I think you can take it that we
24 will grant you the same as we have granted the
25 Prosecution, that your appeal may be left open, but we
1 have not yet considered the basis upon which or the
2 length of time which you should have. I don't want you
3 to estimate times, but the Prosecution are being
4 required, in effect, to make their application without
5 a full understanding of the documents, and you should
6 be in a different position because you are looking for
7 everything there that will assist you to meet a case.
8 Now, that's all I mean. We have to deal with
9 that at some stage before we have finished with your
10 ground of appeal 9, as it now is.
11 MR. MORRISON: Your Honour, we will certainly
12 put our minds to that matter and give as reasonable an
13 explanation as possible.
14 JUDGE HUNT: We will deal with it obviously
15 in the morning, I think.
16 MR. MORRISON: Yes. I'm much obliged for
18 There's very little in my submission that
19 bears repetition in this life except perhaps feeding
20 children and constitutional monarchy, but one question
21 that I would pose, a submission I would pose, and that
22 is I appreciate by doing this I'm actually asking the
23 Appeals Chamber to consider this matter rather than
24 supply an answer to it through submission, and that's
25 this: As an Appellate Chamber, you are, of course,
1 lawmakers. The law relating to de jure/de facto
2 command responsibility is far from certain. As my
3 learned friend Mr. Moran said, he's not even entirely
4 sure what de facto command responsibility is because of
5 the lack of real definition.
6 What I ask the Appeals Chamber to bear in
7 mind is simply this: That there must be species of
8 executive authority that are exercised by people who
9 have the ability, in the heat of the moment, or in the
10 circumstances in which they find themselves, to
11 exercise such authority without it being in the camp of
12 either de facto or de jure command responsibility,
13 because otherwise, if every act of executive power,
14 however minor it was, was determined to fall into one
15 or other camp, there would be no delimitation on
16 command responsibility and we would be getting away
17 from the essence of command, and we would fall to a
18 situation where everybody who exercised any authority
19 or initiative at all was at risk of that exercise being
20 cloaked with the mantle of command responsibility, and
21 in the context of these matters, criminal command
22 responsibility, because it seems -- its self-evident
23 that the whole doctrine of command responsibility in
24 international law is to give rise to judicial sanction
25 in respect of criminal behaviour rather than what might
1 be called beneficial or humanitarian acts, and that is
2 a distinction which I would invite the Appellate
3 Chamber to draw when considering this matter.
4 Those -- it is self-evident, in my
5 submission, whether any given act would broadly fall
6 into the category of benevolent or malevolent and there
7 is evidence in this case that Pavo Mucic did a number
8 of acts which could only be described as benevolent,
9 and I will come on to those later in the sentencing
10 submissions. But I ask that the Appellate Chamber
11 gives thought during the course of its determinations
12 in that case to that aspect, because it seems to me
13 that that's an area of law which needs to be
15 Unless Your Honour has any questions, I do
16 not intend to repeat anything that my learned friends
17 have said.
18 JUDGE HUNT: Thank you very much indeed.
19 Now, Mr. Ackerman, you have to respond to the
20 Prosecution grounds 1, 2, and 3.
21 MR. ACKERMAN: Thank you, Your Honour, and I
22 begin -- this is horribly loud.
23 I begin in a bit of a quandary similar to
24 that one I was in this morning when the Prosecution
25 began to argue a matter which I did not think had been
1 scheduled for argument.
2 One of the things that's on my plate to argue
3 is the issue of Count 48 and the Prosecutor's
4 contention that -- Prosecutor's contention that
5 Mr. Delalic should have been convicted under Count 48
6 because of his status as an aider and abettor.
7 The Prosecution, unless the fast talk was
8 going so fast that I missed it, did not argue that
9 issue. It's point 3, I believe. Now, whether they
10 intend then to abandon that or not, I don't know, but
11 I'm not real comfortable responding to an argument that
12 was not made, and I don't know whether Mr. Farrell now
13 wants to address that or wants to announce to the Court
14 that he's abandoned it or what.
15 JUDGE HUNT: He is relying upon his written
16 submissions as expanded in Court. If he hasn't
17 expanded upon it, that does not mean he's withdrawn the
18 written submissions.
19 MR. ACKERMAN: That's fine. The only thing
20 I'm pointing out is that was never said. If he's
21 relying on his written submissions, that's fine with
23 JUDGE HUNT: I think I made it sufficiently
24 clear at the various pre-appeal conferences we don't
25 want counsel reading out what they have already put in
1 writing, but we are taking into account what has been
2 put in writing.
3 MR. ACKERMAN: Thank you. It's now clear to
5 Along that line, Your Honour, I took it very
6 seriously when you announced at the Status Conference
7 that we should not stand up here and tell you what we
8 have written in our briefs, and I've taken that
9 seriously, and I suspect that you will consider very
10 carefully the things that I have written in my brief
11 regarding these various issues.
12 Now, I have noticed, sitting here today, that
13 some of the parties have, nonetheless, taken the
14 opportunity to spend some time telling you what it is
15 they've written in their briefs. I will not do that.
16 What I will do is tell you the things that I believe
17 have occurred since the brief was filed that might be
18 of interest to you regarding the various issues.
19 I want to begin by discussing the question of
20 the definition of "knew or had reason to know." The
21 Prosecution is correct. The real issue here is the
22 definition of "had reason to know."
23 Candidly, the Prosecution has admitted what I
24 contended in my brief, that this was really an academic
25 exercise because it didn't play any role whatsoever in
1 the decision the Trial Chamber arrived at with regard
2 to Mr. Delalic.
3 I will point out, however, in the nature of
4 that academic exercise, that since the Celebici
5 decision, the Aleksovski Trial Chamber has considered
6 the definition of the phrase "knew or had reason to
7 know" and adopted the Celebici Trial Chamber definition
8 at page 80 of their decision. So by that point, six
9 Judges had agreed with the definition that was set out
10 in the Celebici Trial Chamber's decision.
11 I think it's significant that in the
12 Aleksovski appeal, the Office of the Prosecutor chose
13 not to challenge the Aleksovski Trial Chamber's
14 adoption of the Celebici Trial Chamber's definition of
15 that phrase.
16 The Aleksovski Trial Chamber did speak, and
17 this gets into a number of issues that we're
18 discussing, and that is the kind of circumstantial
19 evidence that one might consider in terms of
20 determining whether someone may have had reason to
21 know. I won't go into that in any detail except to say
22 that that is set out both in Celebici and in
23 Aleksovski, the Trial Chamber decisions.
24 In the Blaskic case, the Trial Chamber
25 fashioned a somewhat different definition of "had
1 reason to know." In Blaskic, they talked about
2 ignorance not being a defence if the absence of
3 knowledge is the result of negligence in the discharge
4 of his duties. That's at paragraph 332.
5 Again, this has no real effect on the Delalic
6 case since he had no duty to know, according to the
7 Trial Chamber, what was going on in Celebici because
8 there was no superior/subordinate relationship there,
9 so he couldn't have negligently discharged any duty by
10 failing to acquire that knowledge.
11 I think that's all I had to say with regard
12 to that issue that has come up basically since the
13 Trial Chamber's decision.
14 If I may, unless there's no question about
15 that issue, I will move on to this issue of superior
17 I've heard a number of things sitting here
18 this morning that I think I first want to discuss.
19 Mr. Moran, I believe, was asked the question about the
20 inherent power of a commander. If you are a commander,
21 do you have the inherent power to punish? And the
22 answer was yes, that can be taken without proof.
23 However, if there is proof to the contrary, then that
24 must be considered, which was the case in the Celebici
25 case with respect to Mr. Delalic's role as commander of
2 A number of military people came here and
3 testified, Polutak is one that comes to mind, that in
4 the case of a tactical group, a tactical group is made
5 up of regular units that are detached from their normal
6 structure and made part of a tactical group to
7 accomplish a particular purpose and then returned back
8 to their original units.
9 The experts that testified about that said
10 the tactical group commander does not have the power to
11 punish violations committed by members of his tactical
12 group, that his only power is to refer those to the
13 commander of the group that is attached to his unit for
14 the tactical purpose, whatever it is. So that would be
15 a case where although the power is inherent, there is
16 evidence to the contrary, that there is no such power.
17 Mr. Farrell talked at some length about bits
18 of evidence that you can find in the record which tend
19 to show that Mr. Delalic exercised some authority over
20 the alleged perpetrators of the crimes at Celebici, and
21 clearly the Trial Chamber was aware of those bits of
22 evidence. It would be surprising if they had indicted
23 Mr. Delalic and tried him if they had not had some
24 evidence that would tend to indicate that he might have
25 had that kind of relationship with Celebici.
1 What we didn't hear from Mr. Farrell and what
2 is the most important thing is that the Prosecution's
3 burden was not to show just some evidence but to prove
4 that beyond a reasonable doubt.
5 Now, if you look at the full body of evidence
6 from the Celebici case, about the role of Mr. Delalic
7 in 1992 in the Konjic area, the evidence is almost
8 overwhelming that he did not exercise any control or
9 command over Celebici. The Trial Chamber found that
10 there was no superior/subordinate relationship between
11 Mr. Delalic and the people who operated that camp, and
12 they found that based upon looking at all the
13 evidence. They say at the beginning of their opinion
14 that they've considered all the evidence and that the
15 Prosecution had failed to prove beyond a reasonable
16 doubt that there was this superior/subordinate
18 A thing that has concerned me since reading
19 the Prosecution's brief, and it has come up again
20 today, is the Prosecution keeps referring to evidence
21 not rejected by the Trial Chamber. They'll say to you,
22 "Your Honours, there was this exhibit or there was
23 this testimony, and it was not rejected by the Trial
24 Chamber, so you must take it into consideration."
25 There is no rule at this Tribunal that when a
1 Trial Chamber writes its judgement it must single out
2 each of those pieces of evidence that it found to be
3 not credible, that it rejected. What you can best do,
4 from looking at the judgement that the Celebici Trial
5 Chamber wrote, is understand that some evidence was
6 credited more than other evidence was, and just because
7 there is testimony for a particular proposition, and
8 what comes to mind is the testimony that Mr. Farrell
9 was talking about with regard to Dr. Grubac and his
10 release from prison, just because people said that
11 "Mr. Delalic said he would release me," doesn't mean
12 that the Trial Chamber gave that any credit
13 whatsoever. And just because the Trial Chamber didn't
14 say, "We reject this evidence," that you must then give
15 it credit.
16 I think it's clear from the decision of the
17 Trial Chamber that a lot of evidence of that nature was
18 not credited by them. And they were the ones who sat,
19 Your Honours, where you are sitting now and looked the
20 witnesses in the eye when they testified, saw their
21 demeanour when they testified, saw the way they said
22 the things they said, saw whether they kind of held
23 their hand over their face and looked away when they
24 said certain things. Only the judge who is in a
25 position to make that credibility determination can
1 decide whether or not that evidence should be accepted
2 or not.
3 Looking at the cold record of the trial,
4 reading the transcript off the television or off a cold
5 transcript, all you see are the words. You don't see
6 the tone of voice, you don't see the shifty eye, you
7 don't see the things that we all use when we
8 communicate with others to make a determination as to
9 whether or not we're being told the truth. You have to
10 give credit to those people who sat where you are in
11 Celebici for having made that determination correctly
12 and properly.
13 There is this issue -- frankly, when I first
14 saw it in the Prosecution's brief, it almost took my
15 breath away -- the proposition that in the context of
16 command responsibility there should be a component that
17 says: If you are a person of influence, even though
18 not within the superior/subordinate relationship, but a
19 person of influence, that there are circumstances under
20 which you could be held responsible as if you were a
21 superior in that relationship. The Prosecution, in my
22 mind, is asking you to make new law, asking you to
23 adopt a whole new theory of command responsibility.
24 When other people have talked to you today,
25 others of my colleagues have talked to you today about
1 that, there has been some talk about the uncertainty of
2 trying to get our hands around that issue. Mr. Fenrick
3 talked about it, how it was difficult to define, and he
4 was only able to give you a couple of examples of what
5 it is not: It is not this and it's not this. But he
6 wasn't able to give you any examples of what it is.
7 One of the things the rule of law requires is that if
8 you're going to make some kind of behaviour subject to
9 a criminal sanction, that you must define it in such a
10 way that reasonable people will be able to understand
11 what it is they're being asked to either do or not do.
12 When this Tribunal is being asked to adopt a
13 principle that no one can stand up here and define for
14 you so that you can understand it, how on earth can
15 those out there in the field who are expected to comply
16 with it understand what it is they are to do and not
18 Take Konjic and that situation that went on
19 there in 1992. Every village of that size, we all know
20 from our own experience, may have any number of people
21 who are influential. The mayor of the town may be a
22 particularly popular doctor in the town. Certainly the
23 president of the War Presidency in Konjic would have
24 been an influential person. Any number of people there
25 have influence.
1 The Prosecutor is saying if you knew and had
2 any kind of influence over the person who was in charge
3 of the camp, who was responsible for Celebici, then it
4 was your duty to take some kind of steps to stop what
5 was happening there. And my submission is that that
6 is -- first of all, it is not part of customary
7 international law, and this Court can only apply what
8 is customary international law. And you have to
9 determine, if you're going to apply customary
10 international law, that it is beyond doubt part of
11 customary international law. And there is no way,
12 looking at all of the history of the concept of command
13 responsibility, that you could ever arrive at the
14 conclusion that it is beyond doubt part of customary
15 international law that a person of influence in the
16 community can be held responsible as a commander or as
17 a superior even though he's not within the
18 superior/subordinate relationship.
19 The Trial Chamber found, and the Prosecutor
20 agreed in their brief, that Mr. Delalic was not within
21 the superior/subordinate relationship as regards
22 Celebici. So the only way that he can be held
23 responsible, and that's why the Prosecutor suggests
24 this new approach, is to be held responsible as a
25 person of influence who's outside that
1 superior/subordinate relationship and can somehow have
2 the power to effect it.
3 The Celebici Trial Chamber's view of the law
4 regarding command responsibility has been largely
5 adopted by subsequent decisions and judgements in this
6 Tribunal. The Blaskic trial adopted the Celebici
7 definition at paragraph 300 and 301 of their decision,
8 the Trial Chamber. Aleksovski appeals judgement in
9 essence agreed with the Celebici definition.
10 One of the things that runs throughout these
11 is element 1, is the existence of a
12 superior/subordinate relationship. That's element 1 of
13 defining whether or not someone can be held
14 responsible. That decision, by the way, by the
15 Aleksovski Trial Chamber again was not appealed by the
16 OTP. They did not challenge the Aleksovski Trial
17 Chamber's agreement with the Celebici definition of
18 command responsibility.
19 The Aleksovski Appeals Chamber said that this
20 relationship, superior/subordinate, can be determined
21 by asking whether the accused had the ability to give
22 orders and punish the persons involved. And clearly
23 the Trial Chamber in Celebici found that Delalic did
24 not have that ability, based upon all the evidence that
25 they considered.
1 We've argued in our brief about the approach
2 taken by the drafters of the Rome Statute in this
3 regard. The Rome Statute reads:
4 "A superior shall be criminally responsible
5 for crimes within the jurisdiction of the Court
6 committed by subordinates under his or her effective
7 authority and control."
8 I must grant to Mr. Fenrick, even though
9 there have been times when he didn't think they were
10 important, that there are some cases that go somewhat
11 beyond that that came out of the post-World War II
12 period. I think it's a safe conclusion that the
13 thinking in those cases has basically been rejected
14 since World War II by the world community.
15 You have the most recent evidence of the
16 world community adopting the Rome Statute, and I
17 suggest to you that that language in the Rome Statute
18 is the world community's current view of what customary
19 international law at that time was, which they then
20 codified in that Statute. Prior to that you have the
21 earlier work, post-World War II work, of the
22 international law commission, which arrived at roughly
23 the same position regarding this definition in this
25 I suggest to you that it would be both poor
1 policy and a violation of your mandate from the United
2 Nations to now adopt some new approach to this which is
3 not consistent with either the International Law
4 Commission's view or the Rome Statute. I think it
5 would violate the principle of nullem crimen sine lege
6 and that it would be improper for this Tribunal to
7 establish a test and a rule regarding command
8 responsibility for the people appearing before this
9 Tribunal that will not be imposed by the International
10 Criminal Court upon people appearing before that court
11 when it finally begins to function.
12 Finally, I want to point out that in the
13 Celebici trial, on this issue of what Mr. Delalic's
14 position was in the Konjic area during 1992,
15 Mr. Delalic had a number of witnesses that the Trial
16 Chamber did not permit him to call regarding that. The
17 Trial Chamber shut down the Delalic defence and
18 prevented him from bringing before the Chamber a number
19 of witnesses regarding this issue.
20 It seems to me in that context, where the
21 Trial Chamber decided that they had heard enough
22 evidence about Mr. Delalic's lack of responsibility for
23 what occurred within Celebici and didn't want to hear
24 anymore, that it would be decidedly improper to now
25 reverse that judgement and find Mr. Delalic guilty,
1 having been prevented from fully defending himself at
2 the Trial Chamber level.
3 I'm completed with my argument regarding that
4 issue. I don't know how long you want to go. I'm
5 prepared to do everything that I've been asked to talk
6 about at this point if the Chamber wants to sit here
7 and have me do that.
8 JUDGE HUNT: You mean in relation to the
9 Prosecution's appeal, or are you --
10 MR. ACKERMAN: In relation to the issues that
11 are on my plate right now. I think there are two more
12 that I have to discuss: the rebuttal/reopen issue and
13 the unlawful confinement issue. And I think I can
14 finish those, Your Honour, in 10 or 15 minutes, or
16 JUDGE HUNT: I think it would be preferable
17 if we came back to it tomorrow, Mr. Ackerman, and we'll
18 start with you in the morning. Then the Prosecution
19 will have the right to respond to Mr. Mucic's appeal
20 and to reply to everybody. As there are three of you,
21 I hope you've sorted it out between yourselves on the
22 Prosecution side who is going to deal with what and
23 that there will not be any repetition.
24 We'll adjourn now until 10 tomorrow.
25 --- Whereupon the hearing adjourned
1 at 5.33 p.m., to be reconvened on
2 Tuesday, the 6th day of June, 2000,
3 at 10 a.m.