1 Wednesday, 7
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.02 a.m.
5 JUDGE HUNT: Call the case, please.
6 THE REGISTRAR: This is case number
7 IT-96-21-A, the Prosecutor versus Delalic and others.
8 JUDGE HUNT: We're up to group 5 and,
9 Mr. Kuzmanovic, you're first off the rank here.
10 MR. KUZMANOVIC: Good morning, Your Honours.
11 This section of the argument deals with the
12 principle of double jeopardy, and it was filed in a
13 supplementary brief that Mr. Moran and I did about two
14 or three months ago, and it came about as a result of
15 the Kupreskic trial judgement. This issue revolves
16 around convictions that Mr. Mucic and Mr. Delic had,
17 and sentences for grave breaches of the Geneva
18 Conventions and for violations of the laws and customs
19 of war based upon the same acts.
20 It is our position that the Kupreskic trial
21 judgement, in section 5(D) paragraphs 637 to 748 is
22 applicable, and we believe that the Appeals Chamber
23 should adopt that section and vacate the -- one of the
24 two convictions, either for grave breaches of the
25 Geneva Conventions and for -- or for violations of the
1 laws or customs of war when the elements of each
2 offence are the same.
3 The Kupreskic Trial Chamber adopted the
4 double jeopardy test announced by the United States
5 Supreme Court in Blockburger versus United States. I
6 have supplied, through Mr. Hocking, copies of the
7 Blockburger case for you, Your Honours, as well as a
8 more recent pronouncement in which this principle has
9 been upheld, and the same circumstance even if
10 sentences are concurrent, which is what we have in this
11 case, and that Supreme Court is Ball versus United
12 States, which is a case decided in 1995.
13 Incidentally, these cases are available for
14 free on the Internet at a site called caselaw.com.
15 The reason behind -- by the way, the
16 Prosecution has also received copies of the two cases
17 as well.
18 The reasoning behind the United States
19 Supreme Court's decision in Ball, which followed the
20 court's holding in Blockburger, was that the
21 appropriate inquiry is whether each provision requires
22 proof of a fact which the other does not. And the only
23 remedy the United States enumerated was that court
24 within which sentencing responsibility resides must
25 exercise its discretion and vacate one of the
1 underlying convictions.
2 One of the convictions as well as its
3 concurrent sentence was considered by the Ball Court to
4 be unauthorised punishment for a separate offence. And
5 significantly, the United States Supreme Court reasoned
6 that a second conviction, whose concomitant sentence is
7 served concurrently, doesn't evaporate because of the
8 concurrence of the sentence.
9 Page 865 of Ball -- a little factual
10 background on Ball. In the Ball case, the person was
11 arrested. The police found him in possession of
12 another person's firearm that was reported missing.
13 This person threatened a neighbour with the firearm and
14 he tried unsuccessfully to sell it.
15 The person was then indicted on charges of
16 receiving a firearm and possessing a firearm in
17 violation of two federal statutes. He was convicted at
18 the Trial-Court level on both counts and he was
19 sentenced to consecutive terms of imprisonment on each
21 The Court of Appeals then remanded the case
22 to the district court saying it was violative of
23 Blockburger and instructed the Trial Court to modify
24 the sentences not to have them consecutive but to have
25 them concurrent. And the United States Supreme Court
1 held that that violated the principle of double
2 jeopardy, despite the fact that these sentences were
3 concurrent, because the elements of each act were
4 essentially one in the same.
5 In our argument in this case, for purposes of
6 the double jeopardy principle here and how it applies
7 is based upon the Kupreskic trial judgement and its
8 adoption of the Blockburger test. Mucic, and for that
9 matter any accused, in our opinion, cannot be convicted
10 of both a grave breach and a violation based upon the
11 same acts.
12 For example, in the indictment, Mr. Mucic,
13 under Article 7(3), was held to be responsible under
14 Count 13, for example, with wilful killing, which is a
15 grave breach under Article 2(A) of the Statute. Under
16 Count 14, he was held to be responsible of a violation
17 of the laws or customs of war, punishable under
18 Article 3 of the Statute. Both of the violations were
19 for acts and omissions as a superior.
20 Because wilful killing and murder, in our
21 opinion, and I believe in the opinion of the -- even
22 the trial judgement in Celebici, are essentially one in
23 the same, we believe the Appeals Chamber should vacate
24 one of the convictions in each instance where he or
25 Mr. Delic were convicted of both a grave breach and
1 violations of the laws or customs of war based upon the
2 same conduct.
3 In fact, the Celebici Trial Chamber itself,
4 in paragraph 433, stated, and I quote: "The ordinary
5 meaning of the English term 'murder' is also understood
6 as something more than manslaughter and thus, as stated
7 above, no difference of consequence flows from the use
8 of wilful killing in place of murder."
9 That same trial judgement also stated in
10 paragraph 439 that the mens rea required to establish
11 crimes of wilful killing and murder is present where
12 there is demonstrated an intention on the part of the
13 accused to kill, inflict serious injury, in reckless
14 regard of human life. For all intents and purposes, we
15 submit, the Celebici Trial Chamber's definition of
16 "wilful killing" and "murder" is one and the same.
17 The Trial Chamber's judgement also defines
18 two categories of "wilfully causing great suffering,"
19 et cetera, and "cruel treatment" almost identically in
20 the judgement in paragraphs 511 and 552.
21 Mr. Mucic was found guilty of a grave breach,
22 wilfully causing great suffering or serious injury to
23 body or health, and a violation of the laws or customs
24 of war in respect to Slavko Susic, for example.
25 Because the definitions of those two crimes under
1 Article 2 and Article 3, at least in the Trial
2 Chamber's judgement, are one and the same, we believe
3 that that is violative of the principle of double
4 jeopardy, and one of the two, either the grave breach
5 or the violation of the laws or customs of war, should
6 be vacated, again based upon the Trial Court's, in
7 Kupreskic's, adoption of the Blockburger test.
8 Other counts with respect to Mr. Mucic are 33
9 and 34. Thirty-three and thirty-four are both findings
10 of guilt as a superior on a grave breach for torture
11 and a violation of the laws or customs of war for
12 torture. One of the two, we believe, should be vacated
13 pursuant to the Blockburger test. It also applies in
14 counts 38 and 39, counts 44 and 45, and 46 and 47 of
15 the indictment.
16 All of these categories are defined
17 essentially the same way by the Trial Chamber in its
18 judgement. "Wilfully causing," that phrase, and "cruel
19 treatment," at paragraphs 511 and 552 of the Trial
20 Chamber's judgement, and "inhuman treatment," at
21 paragraph 543 of the Trial Court Chamber's judgement,
22 are essentially defined in the same way.
23 For those reasons, Your Honours, we believe
24 this Appeal Chamber should accept the Kupreskic
25 adoption of the Blockburger test with respect to double
1 jeopardy and vacate one of each of the double
2 convictions for Mr. Mucic and Mr. Delic based upon the
3 same acts.
4 We also believe that the Appeals Chamber
5 should adopt paragraphs 742 to 748 of the Kupreskic
6 judgement, which demonstrates the methodology to deal
7 with this issue at the Trial Chamber level. It is
8 essentially a pleadings and practice section of the
9 Kupreskic judgement which discusses cumulative
10 charging: when it is appropriate for a prosecutor to
11 add a charge with the leave of court, without leave of
12 court, and what some of the results of those decisions
13 could be.
14 And with that, Your Honours, I will, unless
15 there are any questions, I will pass to my colleague on
16 the Prosecution.
17 JUDGE HUNT: Before you sit down, you would
18 agree, I suppose, that it's a very separate issue in
19 relation to separate charging. Even if all of your
20 arguments are correct about separate convicting,
21 separate charging seems to throw out completely
22 different issues. It's certainly not something we have
23 to determine here.
24 MR. KUZMANOVIC: I agree with you, Your
25 Honour. I believe the Kupreskic decision does talk
1 about separate charging, the Trial Chamber's decision,
2 and I think that the approach elucidated in the
3 Kupreskic judgement in those paragraphs which I cited
4 is appropriate. The Court does or does not have to
5 adopt that, as an Appeals Chamber, as a practice for
6 the Tribunal.
7 JUDGE HUNT: My point was: We don't have to
8 decide it in this appeal.
9 MR. KUZMANOVIC: I agree with you, Your
11 JUDGE HUNT: The second question which I
12 would like to ask you: Has any other country adopted
13 the United States' view that double jeopardy can arise
14 within the one case rather than successive cases?
15 MR. KUZMANOVIC: I can't tell you off the top
16 of my head, Your Honour, but I know that at least in
17 England the double jeopardy principle does apply with
18 respect to what happens shortly after sentence. And
19 Mr. Morrison can address that issue specifically if
20 you'd like, but the Trial Chamber's judgement in the
21 Kupreskic case does go over several --
22 JUDGE HUNT: We've read the Kupreskic
23 judgement. But I was asking whether any other
24 country -- and I don't think the United Kingdom has --
25 adopted the United States' view that double jeopardy
1 can arise in the same case.
2 MR. KUZMANOVIC: I don't know of any country,
3 Your Honour.
4 JUDGE HUNT: And the third question: What do
5 you suggest is the approach that the Court should take
6 in determining which conviction to keep? Is it the
7 most serious offence, and if so, how do you work that
8 out? Is it the one which is the most specific? Is it
9 the one which in relation to which there is the most
10 evidence or the most offences that have been committed,
11 which are all within the one charge?
12 MR. KUZMANOVIC: I would think, Your Honour,
13 it would be the one where there is the most evidence.
14 And the reason I say that is the way the Chamber
15 defined "murder" and "wilful killing," if you read them
16 side by side or look at them side by side, they're
17 essentially the same, so my estimation would be it
18 would be the evidence and the amount of evidence that's
19 there that would be dispositive.
20 JUDGE HUNT: Would you agree that it would be
21 the offence which leads to the most appropriate
22 sentence, in other words, which encompasses the
23 greatest amount of conduct on the part of the
24 particular accused?
25 MR. KUZMANOVIC: Yes, I would, Your Honour.
1 JUDGE HUNT: Thank you. Yes, thank you,
2 Mr. Kuzmanovic.
3 MR. KUZMANOVIC: Your Honour, excuse me.
4 Mr. Morrison would like to add just a comment in answer
5 to one of your questions, if you'd like.
6 JUDGE HUNT: Yes. Very well.
7 MR. KUZMANOVIC: Thank you.
8 MR. MORRISON: Your Honour, it's simply to
9 assist on the question you posed to Mr. Kuzmanovic as
10 to whether any other country had adopted the question
11 of double jeopardy in a single case.
12 All I can speak of is as to the practice in
13 the United Kingdom, where you have, for instance, a
14 Prosecution, and I prosecute more than I defend, for,
15 say, conspiracy, where within the facts of the case
16 there are also substantive offences which are
17 identifiable. And if an indictment is placed before
18 the Court which contains counts of conspiracy and also
19 counts of substantive offences, the practice has grown
20 up now and is followed rigorously that counsel for the
21 Crown are obliged to indicate before trial whether they
22 wish to proceed on the conspiracy or the substantive
23 counts, and they are only in rare occasions allowed to
24 proceed upon both.
25 JUDGE HUNT: Yes. That's certainly the
1 practice in other countries as well, but that isn't
2 really double jeopardy. It relies on a completely
3 different issue, at least as explained by other
4 superior courts of appeal.
5 MR. MORRISON: It is, but there is an
6 analogy. As far as the defendant is concerned, from
7 the defendant's point of view, he would see it as a
8 double jeopardy point.
9 JUDGE HUNT: Thank you very much.
10 Mr. Moran.
11 MR. MORAN: Your Honour, it may shock the
12 Court, but I don't have anything to say.
13 JUDGE HUNT: Thank you very much.
14 Mr. Staker?
15 MR. STAKER: May it please the Chamber. The
16 brief filed by Mr. Mucic and Mr. Delic on this ground
17 of appeal on the 14th of February this year contained
18 only three pages of submissions in relation to this
19 ground of appeal, and those three pages contained
20 essentially only one single argument, which was that
21 cumulative convictions under Article 2 and Article 3
22 were inconsistent with the Kupreskic judgement.
23 We concede that the Appeals Chamber has a
24 power of de novo review on issues of law, but
25 nevertheless, where an error of law is alleged, it
1 remains the case that the Trial Chamber's judgement
2 will stand unless the error is established, so the
3 appellant still has a burden of persuasion.
4 The invocation of the Kupreskic judgement by
5 the appellants is capable of a very short answer. The
6 Kupreskic judgement is a decision of the Trial
7 Chamber. It's not binding even on other Trial
8 Chambers, and it's certainly not binding on the Appeals
9 Chamber. That judgement establishes a legal test for
10 cumulative convictions, which has not been applied in
11 any other decision of any Chamber of this Tribunal or
12 the International Criminal Tribunal for Rwanda, and in
13 certain respects it's directly contradicted by the
14 practice of other Trial Chambers, and even of the
15 Appeals Chamber itself in the Tadic appeal judgement.
16 The Kupreskic judgement itself doesn't even
17 address the possibility of cumulative convictions under
18 Article 2 and Article 3, and there was no express
19 finding in relation to that issue in the Kupreskic
20 judgement. I'd refer to paragraph 4.80 of the
21 Prosecution brief in relation to the cumulative
22 conviction issue that sets out further difficulties
23 with the Kupreskic judgement. And the Prosecution
24 submits that for that reason alone, the brief filed by
25 the appellants doesn't discharge the burden of
1 persuasion in establishing an error by the Trial
2 Chamber in this case.
3 But despite the availability of such a short
4 answer, the Prosecution brief that was filed on this
5 issue contains some 50 pages of submissions on this
6 issue. The reason for such detail was that the issue
7 of cumulative convictions is one of general importance
8 in the practice of this Tribunal. It's arisen on
9 numerous occasions in both tribunals and it's never
10 been the subject of a definitive pronouncement by the
11 Appeals Chamber. Therefore, in an effort to assist the
12 Appeals Chamber, we've sought to address the issue in a
13 more comprehensive way.
14 I should point out materially similar
15 submissions are also before the Appeals Chamber in the
16 Prosecution appeal brief in the Kayishema and Ruzindena
17 case and similar submissions may be put by the
18 Prosecution in other appeals.
19 The brief, I submit, speaks for itself. I
20 needn't go through a 50-page brief in any detail, but I
21 would mention a few points.
22 My first point is one of terminology. For
23 the purposes of these proceedings, the issue has been
24 given the label "cumulative convictions," but that's
25 not really a term of art in any legal system that
1 I'm --
2 THE INTERPRETER: Could Mr. Staker please
3 slow down.
4 JUDGE HUNT: Could you please slow down.
5 MR. STAKER: In civil-law systems, on the
6 other hand, there is an established terminology. In
7 French, this is an issue which would be referred to as
8 "concours d'infractions," which might be more
9 accurately translated into English as "concurrence of
10 offences" or "concurrence of crimes." Similar
11 terminology is used in other civil-law systems.
12 Civil-law systems generally also distinguish
13 between what is called "real concurrence" and what is
14 called "ideal concurrence", ideal concurrence being
15 the situation where a single act of an accused violates
16 more than one provision of the criminal law, which is
17 the situation before us now.
18 In our brief, we have, to a degree, adopted
19 the civil-law terminology. One reason is convenience.
20 The expression "ideal concurrence" is much shorter and
21 simpler than the expression "situations in which a
22 single act of the accused violates more than one
23 provision of the criminal law." Another reason is that
24 this civil-law terminology is found in some of the
25 decisions of this Tribunal and the Rwanda Tribunal
1 which deal with the issue.
2 The convenience might also be highlighted by
3 Mr. Kuzmanovic's reference to the issue of double
4 jeopardy. I would submit that the issue of double
5 jeopardy is one which is well established in civil-law
6 systems also, but there is as well a concept of ideal
7 concurrence. So the use of this expression
8 distinguishes between the two.
9 At the same time, we're conscious that the
10 use of this sort of terminology may cause confusion in
11 the extent -- to the extent that it may suggest that
12 the rules applicable in this Tribunal are the same as
13 the rules that apply in any particular national
14 system. In fact, our submission is that the rules
15 governing ideal concurrence differ significantly, even
16 within civil-law systems.
17 For instance, my understanding is that in
18 France, the general rule of ideal concurrence, and I
19 understand this is also subject to exceptions, but the
20 general rule is that an accused cannot be convicted of
21 more than one crime for a single act.
22 In Germany, on the other hand, the general
23 rule of ideal concurrence, which is set out in
24 paragraph 4.92 of our brief, is that the Court will
25 make findings in respect of every crime that has been
1 committed by the one act. However, in Germany, under
2 paragraph 52 subparagraph (2) of the Criminal Code,
3 only a single sentence is imposed, which is determined
4 by reference to the sentence prescribed for the most
5 serious of the offences.
6 In other civil-law systems, the position is
7 different again. In paragraph 4.93 of our brief, we
8 give examples of countries where, in case of ideal
9 concurrence, the maximum sentence fixed for the most
10 serious crime can be increased to take account of the
11 fact that the act constituted more than one crime. And
12 it may not be without significance that the systems
13 adopting this approach include, in addition to
14 Bulgaria, Denmark, Italy, Portugal, and Switzerland,
15 the former Yugoslavia itself.
16 Thus while the expression "ideal concurrence"
17 is used in all these legal systems to describe the
18 issue, the solution adopted to the issue varies from
19 country to country.
20 Mr. Kuzmanovic has referred us to the
21 practice in the United States, where the Blockburger
22 test is applied. That's yet another approach again.
23 The Blockburger test prevents cumulative convictions
24 for the same conduct but only in certain particular
25 circumstances, which is where this test of reciprocal
1 speciality is not satisfied.
2 The Prosecution submits that one of the
3 fundamental errors in the reasoning of the Kupreskic
4 judgement is that it tries to find a solution to the
5 issue of ideal concurrence by identifying general
6 principles of law common to national legal systems.
7 This approach was indicated in paragraph 668 [sic]of the
8 Kupreskic judgement. The Trial Chamber indicated its
9 intention to rely on the principles common to the
10 various legal systems of the world, in particular those
11 shared by most civil-law and common-law criminal
13 Then in paragraph 677, there's a similar
14 reference to general principles of criminal law as they
15 derive from the convergence of the principal penal
16 system of the world.
17 For the reasons given, it is submitted that
18 that approach is somewhat artificial because the
19 similarity between the systems is not as great as the
20 Kupreskic judgement would suggest.
21 The Prosecution submits that the approach
22 taken by the Kupreskic judgement can be contrasted with
23 that taken by the Appeals Chamber in its judgement of
24 15 July 1999 in the Tadic appeal dealing with the
25 common purpose doctrine.
1 In paragraphs 185 to 283 [sic] of that judgement,
2 which cover some 20 pages, the Appeals Chamber
3 considers the International Humanitarian Law
4 authorities in relation to the issue, decisions of
5 national and international courts dealing with war
6 crimes cases, international treaties, and a decision of
7 this Tribunal, and it was only after dealing with all
8 those international authorities, it then, in paragraph
9 224, made reference to certain national law
10 authorities, but it added in the following paragraph,
11 and I quote:
12 "It should be emphasised that reference to
13 national legislation and case law only serves to show
14 that the notion of common purpose upheld in
15 international criminal law has an underpinning in many
16 national systems. By contrast, in the area under
17 discussion, national legislation and case law cannot be
18 relied upon as a source of international principles of
19 rules, under the doctrine of the general principles of
20 law recognised by the nations of the world: for this
21 reliance to be permissible, it would be necessary to
22 show that most, if not all, countries adopt the same
23 notion of common purpose. More specifically, it would
24 be necessary to show that, in any case, the major legal
25 systems of the world take the same approach to this
1 notion. The above brief survey shows that this is not
2 the case."
3 The Prosecution, therefore, submits that the
4 answer to the issue of ideal concurrence should be
5 sought not by reference to national legal systems.
6 There is now an extensive body of case law of both
7 international Tribunals in relation to cases of ideal
8 concurrence, and the Prosecution submits that the
9 questions to be asked are, first, whether any
10 consistent principles can be derived from the existing
11 jurisprudence of the Tribunals, and if so, why there is
12 any reason the Appeals Chamber should exist [sic] from the
13 existing practice and principles.
14 As to the first question, the practice of the
15 two international Tribunals, in relation to ideal
16 concurrence, is quite extensive. It's set out in
17 detail at paragraphs 4.9 to 4.72 in our brief.
18 It's conceded that much of this jurisprudence
19 consists of decisions of Trial Chambers which are not
20 binding upon the Appeals Chamber and some of which are
21 the subject of pending appeals. Nevertheless, where
22 extensive practice already exists at the Trial Chamber
23 level, when a matter is first considered by the Appeals
24 Chamber, the Appeals Chamber should not, it is
25 submitted, ignore that practice when deciding the
1 matter. Although not bound by Trial Chamber decisions,
2 such decisions can be persuasive, especially if a body
3 of jurisprudence constante has already begun to become
5 The practice of entering cumulative
6 convictions under Articles 2 and 3 in respect of the
7 same conduct also finds support in the decision of the
8 Appeals Chamber in the Tadic appeal judgement. Details
9 are given in paragraphs 4.11 and 4.12 of our brief.
10 The particular issue of cumulative
11 convictions under Article 2 and Article 3, the
12 possibility of such cumulative convictions also finds
13 support in decisions of this Tribunal at the Trial
14 Chamber level. I refer to paragraph 4.80, subparagraph
15 (6) of the Prosecution brief, on page 48.
16 The Kupreskic judgement itself concerned
17 cumulative convictions under Article 3 and Article 5 of
18 the Statute. Its specific findings in that respect are
19 inconsistent with the practice of the Appeals Chamber
20 in the Tadic appeal judgement and the Jelisic and the
21 Blaskic judgements. I refer again to paragraph 4.80 of
22 our brief. We, therefore, submit that the Kupreskic
23 judgement cannot be considered an authoritative
24 statement on principles of cumulative convictions in
25 the legal system of this Tribunal.
1 As our brief acknowledges, the Chambers of
2 the two Tribunals have not been consistent in the way
3 that they articulate the applicable principles in the
4 legal system of this Tribunal. I refer to paragraph
5 4.78 of our brief, which identifies four and possibly
6 five different tests that have been applied by
7 different Chambers. But a test which the Prosecution
8 submits is consistent with the weight of precedent in
9 the Tribunal is effectively the Akayseu test, which on
10 its face is somewhat narrower than what we call the
11 Tadic test, although we submit that the Tadic test can
12 be read in a way that it can be reconciled with the
13 Akayseu test. On that I refer to paragraph 4.82 and
14 4.83 of our brief.
15 Under this test, it is acceptable to convict
16 the accused of two offences in relation to the same set
17 of facts in the following circumstances: (1) where the
18 offences have different elements; (2) where the
19 provisions creating the offences protect different
20 interests; or (3) where it's necessary to record a
21 conviction for both offences in order to fully describe
22 what the accused did.
23 The Prosecution submits that under this test,
24 an accused can always be charged with and convicted of
25 more than one crime in respect of the same conduct if
1 the different crimes fall under different Articles of
2 the Statute. For the purposes of this case at least,
3 this means that an accused can be convicted in respect
4 of the same conduct of both the crime under Article 2
5 and under Article 3.
6 There are three bases for the conclusion that
7 cumulative convictions under Article 2 and Article 3
8 are consistent with the Akayesu test. First, there's
9 the practice of the Tribunal itself. I've indicated
10 that such cumulative convictions do find support in the
11 existing practice, and the test should be interpreted
12 and applied in a way that is consistent with the
13 existing practice.
14 Secondly, for the reasons set out in our
15 brief, we submit that each of the Articles of the
16 Tribunal's Statute protects different interests for the
17 purposes of this test. I refer to paragraph 4.85 of
18 our brief.
19 And we would submit that in any event, where
20 an act constitutes a crime under both Article 2 and
21 Article 3 of the Statute, it can be said that it's
22 necessary to record a conviction for both offences in
23 order fully to describe what the accused did for the
24 purposes of this test.
25 The second question, which I indicated
1 earlier, is whether there is any reason why this
2 existing practice should not continue to be followed.
3 Is the practice inconsistent with the rights of the
4 accused? The Prosecution submits the answer's no, for
5 the reasons given in paragraph 4.89 of our brief. We
6 submit that it does not violate the principle of non
7 bis in idem or double jeopardy for an accused to be
8 convicted of more than one crime in respect of the same
9 conduct at the same trial as opposed to successive
10 trials for the same conduct.
11 The legal systems that I have referred to
12 earlier and the authorities set out in our brief
13 indicate that that conclusion is supported by practice
14 in various jurisdictions. It may be that some
15 jurisdictions take a different view. Mr. Kuzmanovic
16 referred to the United States practice, which indicates
17 that this would be regarded as inconsistent with double
18 jeopardy in the United States, at least in the limited
19 circumstances where the Blockburger test applies. And
20 the question was asked whether there was any country
21 that takes the same approach. I could perhaps assist
22 the Chamber by pointing out that to the best my
23 knowledge, and I can't say this with certainty, I
24 mentioned earlier that in France, cumulative
25 convictions for the same or more than one conviction
1 for the same act, as a general rule, is not permitted,
2 and I understand that the rationale given for that in
3 France is a double jeopardy or non bis in idem
5 But the other examples we give from civil law
6 systems, such as Germany and the former Yugoslavia
7 itself, we submit indicates that a contrary approach is
8 not inconsistent with international standards.
9 We further submit that the practice is not
10 inconsistent with judicial efficiency, for the reasons
11 given in paragraph 4.90 of our brief. Whether the
12 multiple crimes are charged cumulatively or in the
13 alternative, it's still necessary for the Prosecution
14 to bring evidence of all of the elements of the crimes
16 The Prosecution concedes that there are some
17 limitations on the possibility of cumulative
18 convictions. Again we refer to paragraph 4.8,
19 subparagraph 3, paragraph 4.76, and paragraph 4.88 of
20 our brief, which deals with the concept of apparent
21 concurrence, as it's referred to in civil law systems.
22 We give the example of an accused who is
23 charged with stabbing a victim to death. We concede
24 that in respect of that one act, the accused couldn't
25 be convicted of both murder and wilfully causing great
1 suffering or serious injury to the victim. Once the
2 serious injury leads to the death of the victim, the
3 murder would absorb the crime of serious injury. And
4 this kind of limitation is expressly acknowledged in
5 the Akayesu judgement at paragraph 468.
6 But the Prosecution submits that this type of
7 limitation only applies to crimes within the same
8 article of the Tribunal Statute. Each article of the
9 Statute is not a lesser included offence of another, or
10 a different form of participation of another, and for
11 the reasons given, it's submitted that convictions
12 under two different articles for the same conduct is
13 permissible in this Tribunal's legal system, and
14 accordingly we submit that this ground of appeal should
15 be rejected.
16 JUDGE HUNT: From a practical point of view,
17 could you explain what is the difference between the
18 second and the third indicia in -- I think it's
19 pronounced the Akayesu judgement. What is the
20 difference between them, that is, the different
21 interests affected in order to describe more fully what
22 the accused did?
23 MR. STAKER: That may be a difficult question
24 to answer in the abstract, Your Honour, and it may be
25 that it's the sort of thing that would be developed
1 through further jurisprudence.
2 JUDGE HUNT: You don't think that one
3 includes the other and that you're accumulating the two
4 where one would do?
5 MR. STAKER: It may depend on how you defined
6 "different social interests," Your Honour. It may be
7 that if one took a slightly narrower view of different
8 social interests, that the third limb would then
9 provide a practical solution where it's clear that a
10 single conviction would simply not reflect the nature
11 of what occurred.
12 JUDGE HUNT: Thank you.
13 Mr. Kuzmanovic.
14 MR. KUZMANOVIC: Thank you, Your Honour.
15 It's our submission that concurrence may be
16 ideal for the Prosecution, but we are talking about
17 punishment twice, for two charges which are essentially
18 defined identically, and that, I believe, is
19 fundamentally unfair.
20 I will submit that the issue of the Akayesu
21 test is relevant here, and let's apply it to this
22 case. My colleague said that the offence must have
23 different elements, and I submit to you that murder,
24 under Article 2 -- or wilful killing and murder, under
25 Articles 2 and 3, are essentially one and the same.
1 The Trial Chamber in our case decided them or defined
2 them the same.
3 Number 2, provisions creating offences
4 predict different interests. I think that's important
5 here. Yesterday we've heard from the -- with regard to
6 Common Article 3 that the Prosecution said Common
7 Article 3 was there to provide protection in internal
8 conflicts where grave breaches are not available. So
9 then the issue becomes, where the conflict is
10 international, can you convict them of both? And I
11 think number 2 fails when we look at it in our case.
12 And obviously number 3, record conditions to
13 fully describe what the accused did, that is an element
14 of that Akayesu test which I think can be fulfilled by
15 the Trial Chamber, and probably was in this case, given
16 the lengthy discussion about the conditions to fully
17 describe what each accused did.
18 But I think the second element of the Akayesu
19 test, provisions creating offences to protect different
20 interests, fails, and I think therefore the charges are
21 cumulative simply because of the position taken on
22 Common Article 3, internal versus international: Where
23 the conflict is international, can you then be
24 convicted of both? Is that cumulative? And I believe
25 that it is.
1 And that's all I have in reply, Your Honours.
2 JUDGE HUNT: Thank you very much.
3 We move into group 6.
4 Mr. Morrison, we have been informed
5 informally that the omission of what was originally
6 ground 12 was accidental and that ground 12 is still
7 relied upon. Is that so?
8 MR. MORRISON: Your Honour, yes. It was an
9 accidental omission from the final issues that were, I
10 think, sent by my learned friend into the Court.
11 JUDGE HUNT: Providentially it can retain the
12 same number.
13 MR. MORRISON: Essentially, it does.
14 JUDGE HUNT: The other matter I thought I
15 should raise with you before you commence: You have
16 referred to various sections of the PACE legislation,
17 and the Prosecution seems to be very sensitive to these
18 matters. Is there any objection to us saying what is
19 obviously a clearly up-to-date version of the PACE
20 legislation which has been set out in the submissions?
21 MR. STAKER: Your Honour, I think our
22 position on that was set out in our response brief, and
23 we say that if national legislation or case law is
24 relied upon as persuasive authority in support of a
25 legal argument, there's no objection to it simply being
1 referred to.
2 JUDGE HUNT: This is your distinction you
3 draw between that and the constitution of Costa Rica?
4 MR. STAKER: Yes, Your Honour. If you're
5 actually seeking some relief based on the fact of
6 national law, it must be proved --
7 JUDGE HUNT: So there's no need to prove the
8 PACE legislation here?
9 MR. STAKER: No, Your Honour. I've been
10 referring to national jurisprudence and practice myself
11 in my submissions just now.
12 JUDGE HUNT: Yes, Mr. Morrison.
13 MR. MORRISON: I'm much obliged for the fact
14 that I don't have to prove the PACE legislation.
15 I notice the time given for this section by
16 Mr. Hocking was very generously extended to one hour.
17 I can, I hope to everybody's relief, say that it's
18 going to be a very great deal less than that.
19 But there's one point, if I be forgiven for
20 one moment trespassing back in time, because sometimes
21 when one hears things said at the time, they make a lot
22 of sense and you're not in agreement with them; then
23 you think about them a bit more and a word takes on or
24 a phrase takes on a different meaning. I got an e-mail
25 the other day setting out some responses by children to
1 a religious education examination, and one child wrote
2 this: "Christians can only have one wife. This is
3 known as monotony."
4 The illustration by the Prosecution of the
5 effective indemnity for a constitutionally superior
6 commander in the body of Her Majesty, Queen Elizabeth
7 the Second, is flawed by their own position that a
8 person of influence may be liable under Article 7(3),
9 because whatever the constitutional limitations upon
10 Her Majesty acting outside the authority of being the
11 Queen in parliament, which is how she does, in fact,
12 derive her authority, the monarch would no doubt be a
13 person not only of influence, but of considerable
14 influence, having, as the monarch does, the
15 extra-parliamentary power to confer commissions of
16 officers of her armed forces and to award honours for
17 civil and military services to the Crown.
18 So one could envisage a situation where a
19 military commander did a certain act which was going to
20 be alleged to be a crime but had been awarded by Her
21 Majesty, out of her own writ, of one of her personal
22 Honours, for instance, the order of the Royal Victorian
23 Order, and she may then be seen as a person of
24 influence for others who would go on to commit similar
25 offences, if offence it was. And that, in my
1 submission, illustrates the serious flaw in the pursuit
2 of the person-of-influence approach.
3 I move on. The admissibility of the OTP
4 interviews. This in many ways may be otiose as far as
5 both the Defence and the crown are concerned, to this
6 extent: that we are still unsure as to what the effect
7 is going to be of the additional information which may
8 or may not yet be put before this Honourable Tribunal.
9 And I accept that it may be that the thrust of the
10 argument here as to the admission of the second of the
11 two interviews we're dealing with may or may not be of
12 moment. But there is a general issue which the Defence
13 raise on behalf of Mr. Mucic which we say is of general
14 and future application.
15 The objective, we submit, is to be fair,
16 whatever the consequences, when one is considering what
17 somebody says in an interview, which is of course
18 pre-trial, and usually, in most jurisdictions,
19 pre-indictment, but not necessarily as far as this
20 Tribunal is concerned. And if the objective is to be
21 fairness, that fairness cannot be subjugated to any
22 intellectually superior or acceptable argument or to
23 partisan compromise.
24 The jurisprudence in respect of the
25 admissibility of the interviews or, for instance, the
1 identification of suspects, or for searches, is in
2 constant evolvement, and one doesn't have to look very
3 far back in time in my own jurisdiction to see that.
4 Prior to PACE it was an accepted procedure
5 that a defendant would be interviewed by the police,
6 usually by two police officers. There would be no tape
7 recording of the interview. The officers would simply
8 sit and ask questions. At the conclusion of the
9 interview, which may have been hours in length, those
10 two officers would go away, and in the words hallowed
11 in many cases, make up their notes, together. This was
12 not only a course to which no objection was taken; it
13 was a course which was followed case in and case out.
14 And we used to have trials where Judges would solemnly
15 address jurors that police officers had trained minds
16 and could do this.
17 Well, in some of the cases that one appeared
18 in, and some of the officers that appeared in front of
19 you, one would legitimately wonder where their minds
20 had been trained, because you would have somebody
21 saying, for instance, after a two-hour interview, that
22 he could remember verbatim what the defendant said and
23 what the questions were. This was patent nonsense, but
24 it was adopted in case after case.
25 And I recall that when PACE was first mooted
1 and the suggestion was that each interview was going to
2 be tape recorded, there was outrage in some police
3 quarters, and I recall an article in the police review
4 at about that time stating solemnly that there would
5 never be another conviction in the Crown court if this
6 were to happen. Well, as it happens, the statistics
7 show us that since PACE, actually the conviction rate
8 has crept up, not gone down.
9 The Miranda provisions in the United States
10 and the litigation which was flowed therefrom is
11 another example of how this is an evolving part of
13 The fundamental problem that's been adopted,
14 in my respectful submission, in cases hitherto is the
15 adoption of an objective approach to the admission of
16 interviews and to the reliability of what a person has
17 said in those interviews, particularly in the case, as
18 in Mr. Mucic's case, where he was not, in fact, legally
19 represented in the interviews. And the reason it may
20 be a particular problem in cases before this Tribunal,
21 at trial, certainly, is that in the majority of cases
22 in any national jurisdiction, a defendant is likely to
23 be linguistically and culturally at ease, and an
24 objective case may well be fair. That is unlikely to
25 be the case where people from the former Yugoslavia are
1 being interviewed. It is correspondingly very unlikely
2 that the social turmoil that underscored the events
3 that have given rise to the formation of this Tribunal
4 would be apparent in a national context.
5 So although I accept and I have set out in
6 the brief that in many cases, and in particular that of
7 the United Kingdom, the test is essentially an
8 objective test. It is essentially, in my submission,
9 the issue having been raised before this Appellate
10 Tribunal, is to see whether or not that is a test which
11 should stand or whether or not it should be -- there
12 should be a move towards a more subjective test of such
14 To be fair, which must include a
15 determination of the qualitative aspect of fairness,
16 i.e., the foundation that the Prosecution bear the
17 burden of proof to the standard of beyond a reasonable
18 doubt, means that you have, in my submission, to look
19 at matters subjectively. The fact that somebody is
20 being interviewed in a language other than his,
21 probably in a jurisdiction or a place which he has no
22 cultural or personal knowledge, and the fact that he is
23 being interviewed about matters which have arisen from
24 an extraordinary and extra-national set of
25 circumstances, in our submission, is very germane.
1 I don't seek to say anything else about the
2 admissibility of the interviews now, because it's set
3 out in the briefs, but it seems to us, on behalf of
4 Mr. Mucic, that when you have a man who is being
5 interviewed in a language, in a jurisdiction far
6 removed from a jurisdiction which he understood, to
7 wit, Austria, he was initially being interviewed in a
8 language which he did not understand, although of
9 course it was in translation for him, and he was being
10 interviewed without a lawyer present, and there is a
11 debate in the papers which can be resolved upon the
12 papers as to whether he should or should not have been
13 represented and whether that was a wilful error on his
14 part or a deliberate decision on his part not to be
15 represented. That's another matter. But if one is
16 going to take as the base point complete fairness, it
17 is our submission that the time has come to move
18 towards a subjective approach to interviews and away
19 from a national approach to interviews, where the
20 legislation and where the procedures have been adopted
21 and adapted over many, many years, and where, as I say,
22 the conditions and the cultural influences upon a
23 suspect are likely to be very, very different than they
24 are upon Mr. Mucic in particular, but defendants before
25 these tribunals in particular.
1 I go on to the second ground, which is the
2 conduct of defence errors by counsel at trial.
3 Now, I've spoken to my learned friend
4 Mr. Staker about this, because he was concerned, as
5 indeed I was concerned. It doesn't, in fact, amount to
6 a ground of appeal by Mr. Mucic of ineffective
7 representation by counsel. That was something that was
8 considered, but it is apparent that that is not being
9 now raised.
10 The reason it's being raised at all is this:
11 That the Trial Chamber, in their judgement, chose to
12 mention the conduct of the Defence. The judgement is
13 not simply a historical narrative of the trial, it is a
14 judgement. It is not a judgement of counsel, it's a
15 judgement of the defendant. Therefore, it can only be
16 assumed, on behalf of Mr. Mucic, that there was a
17 reason for raising the matters which the Trial Chamber
18 did raise in paragraph 75 of the judgement. On any
19 analysis, it amounts to an effective publication of
20 criticism of his then lead counsel.
21 All I seek to say, on behalf of Mr. Mucic, is
22 this: If there is any good reason or any merit in the
23 Trial Chamber having so set out those criticisms, they
24 are criticisms of his counsel, they are not criticisms
25 of the appellant, and we would simply ask that when
1 this judgement is read or reread, that this learned
2 Appellate Tribunal ignores them completely. There
3 cannot be any proper basis for having included those,
4 in our submission, in the judgement. There is
5 certainly no proper basis for criticism of Mr. Mucic by
6 virtue of them.
7 That leads on to the third ground of unlawful
8 confinement. I don't propose a rerun of any question
9 of protected persons upon this, but there is one point
10 which arises. It's been argued in the brief and
11 responded to by the Prosecution, and I don't want to
12 take those matters any further.
13 I do have -- I want to refer to the
14 particular paragraph in the judgement that sets out the
15 reasoning. It's paragraph 1145. It's short and I read
17 "The Trial Chamber has established that
18 Zdravko Mucic was in a position of de facto position of
19 superior authority over the Celebici prison camp. The
20 Trial Chamber finds that Zdravko Mucic, by virtue of
21 this position, was the individual with primary
22 responsibility for and had the ability to effect the
23 continued detention of civilians in the prison camp.
24 Specifically, Zdravko Mucic, in this position, had the
25 authority to release detainees. By omitting to ensure
1 that a proper inquiry was undertaken into the status of
2 the detainees and that those civilians who could not
3 lawfully be detained were immediately released, Zdravko
4 Mucic participated in the unlawful confinement of
5 civilians in the Celebici prison camp.
6 "Accordingly, the Trial Chamber finds Zdravko
7 Mucic guilty pursuant to Article 7(1) of the Statute of
8 the unlawful confinement of civilians as charged under
9 Count 48 of the indictment."
10 We reach this position: That he has been
11 found guilty on command responsibility, superior
12 responsibility under Article 7(3). The, of course,
13 specific difference between Article 7(1) and 7(3) in
14 this context is "know or had reason to know."
15 The omission contained within 7(3), "had
16 reason to know," has been used as a basis for the
17 positive finding of mens rea under Article 7(1). It
18 must be, if one reads and gives natural meaning to the
19 words in paragraph 1145, that what the Trial Chamber is
20 saying is that the defendant Mucic had the active mens
21 rea; he knew or -- not must have known but knew that
22 there were detainees in the camp who were not lawfully
24 Now, there is all the difference in the world
25 between unlawful detention and unlawful treatment. One
1 cannot make the jump from saying that there were people
2 in the camp who are unlawfully treated or may have been
3 unlawfully treated that they were, therefore,
4 unlawfully initially detain. And it is a counsel of
5 perfection, in our submission, to say that Zdravko
6 Mucic, that while he may be convicted under section 73
7 of "ought to have known," that can be translated into a
8 positive mens rea under 7(1) that he did know, and the
9 adoption and assumption is made that he had the power
10 to know.
11 It's been stated in the brief, and I restate
12 it, simply this: That the fact that somebody is a
13 guard, even a superior amongst guards in a prison camp
14 is not the same thing as a person who has the authority
15 or the knowledge or the status to take somebody into
16 custody ab initio. A person who arrives at a prison,
17 particularly in a time of social turmoil and
18 hostilities, can be, in my submission, taken to be a
19 person who has been lawfully detained as far as the
20 guards of that camp are concerned, and it is a counsel
21 of impossible perfection that in those circumstances
22 somebody could be expected to conduct an individual
23 inquiry as to the lawfulness of each person's arrest
24 and to determine, on each case, that that person should
25 be released against the effective authority of the
1 person who has already authorised their detention.
2 There is no evidence in this case that
3 Zdravko Mucic, whatever his authority, had greater
4 authority than the person or persons who authorised the
5 detention of the inmates at Celebici camp. To make the
6 assumption that he did is both wrong and, in our
7 submission, unfair, and that is what's happened in this
9 Your Honour, those are my submissions.
10 JUDGE HUNT: Thank you.
11 JUDGE RIAD: Mr. Morrison, good morning.
12 MR. MORRISON: Good morning.
13 JUDGE RIAD: I gather from what you said that
14 if Mucic was not responsible for the unlawful
15 confinement, not being the decision-maker, he could
16 still be responsible for the unlawful treatment.
17 MR. MORRISON: There is a plain distinction,
18 in my submission, Your Honour, between the two. A
19 person can be lawfully taken into confinement and then
20 unlawfully treated when he's in confinement. The
21 unlawful treatment does not vitiate the lawfulness of
22 the confinement in the first place. Otherwise, we
23 would have a situation where if an individual prisoner
24 was beaten up by a prison guard, he would be liable to
25 be released from prison. That would be a logical non
2 JUDGE RIAD: So in that case, the case of
3 unlawful treatment, he will not need even to discuss
4 the issue of being in a commanding position.
5 MR. MORRISON: Well, first of all, in any
6 individual's case you need to find out that the person
7 was in a position of authority. So as far as each
8 individual defendant is concerned, it would be
9 necessary to be satisfied that the person was, in fact,
10 in a position of authority. In this case, that's been
11 found under Article 7(3), as far as Mr. Mucic is
12 concerned. Only if the Appellate Chamber was satisfied
13 that he was in such a position of authority would you
14 then move on to say that being he's in a position of
15 authority and had inter alia the power to release
16 people did he then participate non-lawful confinement
17 by not releasing or not putting into place a system by
18 which people could be released.
19 The one must -- as far as individual
20 responsibility is concerned, individual culpability,
21 the one must precede the other in his individual case.
22 But, of course, I accept that a person can be lawfully
23 detained and, thereafter, unlawfully treated.
24 JUDGE RIAD: And, of course -- now we're
25 speaking about unlawful treatment. This would perhaps
1 be the bottom line, that even if he's not a commanding
3 MR. MORRISON: Yes.
4 JUDGE RIAD: But if he was, if he had some
5 authority, the fact that -- the idea is that
6 confinement should be limited only to those who
7 threaten the security of the state or of the whole
8 country, not any civilian.
9 MR. MORRISON: That goes back to the
10 fundamental argument, if you're going to convict
11 somebody under 7(1), that you find a positive mens rea
12 in his case.
13 In a situation of social turmoil and
14 hostilities such as this was at this time, I repeat my
15 submission that it is a counsel of impossible
16 perfection to expect anybody to be able to conduct that
17 sort of exercise in the heat of the moment or even
18 given a few days. Where a number of people, a large
19 number of people are confined, it would be necessary
20 for an analysis of each person's status, of the
21 background of each person to hear and determine perhaps
22 evidence against that person, to hold some form of
23 judicial inquiry. There can't be any sensible
24 suggestion, in my submission, that that falls upon a
25 person who is in the position of a guard or leader of
1 guards of a camp.
2 It may well fall upon a person who is an
3 overall tactical commander or administrator in the
4 area, and perhaps such an exercise should have been
5 undertaken, but nobody suggested that this -- there's
6 been assumption that this appellant has had that
7 authority. There isn't a shred of evidence to that
9 JUDGE RIAD: Just for the sake of argument,
10 in case the person has authority, and you are speaking
11 about the heat of the moment, of course, in the heat of
12 the moment you can't collect everybody even without
13 having -- when there is a doubt, but then if there is
14 some kind of length of time, there is enough
15 opportunity to review and to -- and not to maintain the
16 confinement of innocent people, of civilians.
17 MR. MORRISON: And we then find ourselves --
18 or certainly the Defence finds itself in the rather, at
19 the moment, difficult position to determine, because at
20 the moment, the length of time by which it would be
21 proper to find, if it were proper to find at all that
22 Mr. Mucic had responsibility for the camp, may well
23 depend upon the documentation that has yet to be
25 JUDGE RIAD: Thank you very much,
1 Mr. Morrison.
2 JUDGE HUNT: Thank you, Mr. Morrison.
3 Mr. Staker again. Thank you.
4 MR. STAKER: May it please the Chamber, in
5 relation to this ground of appeal -- when I say "this
6 ground of appeal," I mean the ground of the appeal
7 relating to the admissibility of the interviews with
8 the Office of the Prosecutor -- the starting point, as
9 in the case of all grounds of appeal, must be what the
10 standard of review is before this Appellate Chamber and
11 in determining that, again the starting point is that
12 there are a number of different kinds of decisions that
13 may be made by a Trial Chamber when determining this
14 kind of issue.
15 One is the legal definition of the expression
16 "voluntarily" in Rule 42(B). That, of course, is a
17 question of law. A second matter is to determine what
18 the actual events and circumstances of the case were.
19 That's a question of fact. And the third matter that
20 the Trial Chamber would have to consider is the
21 application of the law to the facts and circumstances
22 as established.
23 We would submit that in making this -- a
24 determination of this final matter, the Trial Chamber
25 is required to weigh all the facts in evidence before
1 it, and in some cases involving issues of this kind, it
2 may be required to receive evidence and hear witnesses,
3 and so in accordance with general principles, it would
4 be necessary to afford a considerable margin of
5 deference to the finding of the Trial Chamber, and it
6 would only be where the decision of the Trial Chamber
7 could be shown to be an abuse of discretion that there
8 would be justification in the Appeals Chamber
9 intervening on appeal.
10 JUDGE HUNT: That, of course, puts back into
11 your formula an issue of discretion as well. You
12 hadn't asserted that earlier. You said there was,
13 first of all, a question of law, then a question of
14 fact as to voluntariness, then an application of the
15 law to the facts. That's where the discretion would be
16 exercised, do you say?
17 MR. STAKER: It's discretionary in the sense
18 that the application of the law to the facts isn't a
19 mathematical process. It involves a degree of
20 appreciation, and the appreciation is one for the Trial
21 Chamber to make. It's the Chamber that has seen and
22 heard the witnesses, and it's in the best position to
23 determine the credibility and the best position to form
24 a view of what the situation really was and what the
25 position of the suspect would have been.
1 JUDGE HUNT: That's an ordinary finding of
2 fact in every case. Is there any overriding discretion
3 such as is found in some legal systems that
4 notwithstanding some error made by the Prosecution in
5 some formula that it must follow, the Court,
6 nevertheless, has a discretion to admit the evidence.
7 MR. STAKER: Your Honour, I think the answer
8 to that would be found in the precise wording of the
9 Rule of Procedure and Evidence that has been invoked in
10 order to exclude the evidence of the interview.
11 JUDGE HUNT: So that makes it a fourth issue,
12 does it not?
13 MR. STAKER: Indeed, Your Honour.
14 In relation to the question of the
15 application of the law to the facts, whether the waiver
16 of the right to counsel was voluntary, clearly the
17 Chamber can't read an accused's mind and any evidence
18 of a state of mind would have to be inferred from the
19 objective circumstances as a whole.
20 In this respect, we note that a test was, in
21 fact, proposed in the appeal brief filed on behalf of
22 Mr. Mucic in this case, a proposed test where the
23 formulation was whether the conditions of the
24 interrogation would be likely to lead a reasonable
25 person to offer an involuntary confession or, for the
1 purposes of this case, an involuntary waiver of
3 The appeal brief states that this test is
4 primarily an objective rather than a subjective test,
5 although it's submitted that there must be an element
6 of subjectivity in the case of a person who is under
7 any form of disability or in a strange and unfamiliar
8 situation, that is, in a foreign country or being
9 questioned in a language that's not his own.
10 The Prosecution doesn't concede that the mere
11 fact a reasonable person is in a foreign country or is
12 being interviewed in a language that is not his or her
13 own, means that the conditions of detention would be
14 likely to lead a reasonable person to waive their right
15 to counsel involuntarily, but we understand this test
16 to be saying that you look at what a reasonable person
17 would be likely to have done in the particular
18 circumstances, and that is essentially an objective
19 test taking into account the relevant circumstances.
20 In other words, it's a matter for the Trial Chamber to
21 determine on the circumstances as a whole, and as I
22 say, subject to review on the ground of
24 Now, the Prosecution submits that the
25 decision of the Trial Chamber that excluded -- that
1 refused to exclude the evidence of this interview with
2 the Office of the Prosecutor isn't necessarily
3 inconsistent with this test. The Defence argued before
4 the Trial Chamber that Mr. Mucic, because of his
5 cultural background, his lack of familiarity with
6 Austrian culture and the procedures of the Tribunal,
7 because of this he needed to have his rights explained
8 to him in more detail. The Trial Chamber rejected this
9 argument at paragraphs 58 to 60 of their decision, but
10 it's submitted that at least on one reading of this
11 decision it did this on the basis of the facts of the
12 case rather than on the grounds of a particular legal
14 It held that the rights of a suspect in the
15 Tribunal's legal system are based on universal human
16 rights, and that if these are explained to a suspect in
17 a language that the suspect understands, they would be
18 understood by the suspect even if they're different
19 from the rights in any other particular legal system
20 with which the suspect may be familiar. Therefore,
21 there's no need to explain these rights to a suspect in
22 a way that's more culturally specific to that suspect
23 merely by virtue of that circumstance, and the
24 Prosecution submits that this is a perfectly correct
1 Provided that the suspect's rights are
2 explained in a language that the suspect understands,
3 it shouldn't matter in what country the suspect is at
4 the time, particularly in the case of an international
5 tribunal which may interview suspects in many different
6 countries and which has a legal system that's different
7 to that in any particular national jurisdiction. If
8 the rights in this Tribunal are based on universally
9 recognised rights and they're explained through an
10 interpreter in a language that the accused
11 understands, unless there is some other circumstance
12 that would indicate that a reasonable person, in all
13 those circumstances, would be likely to involuntarily
14 waive right to counsel, the inference must be that any
15 waiver was voluntary.
16 Now, the circumstances here were put before
17 the Trial Chamber, and I take it that it's not
18 contested by counsel for Mr. Mucic that when he was
19 interviewed by the investigators of the Office of the
20 Prosecutor, he did have an interpreter at all times;
21 that he was, before the interview began, informed of
22 his rights under the Statute and Rules of the Tribunal,
23 including his right to silence and his right to have a
24 lawyer; and that he agreed to conduct an interview
25 without the presence of an attorney; and that on
1 several occasions during the course of that interview
2 he was again informed of his rights under the Statute
3 or the Rules, and he again agreed to proceed without an
4 interpreter being present.
5 The question then: Is there any
6 circumstance -- sorry, I should add that -- the other
7 facts that are mentioned in the Trial Chamber's
8 judgement are, for instance, the fact that the accused
9 had been living in Austria for several years at the
10 time, and I don't think it would be in dispute, for
11 instance, that he wasn't in a situation any more
12 unusual than that of any other suspect being questioned
13 by the police. He wasn't in the middle of a war zone.
14 It wasn't a situation of civil disturbance. It was
15 like any normal or regular situation where a person is
16 arrested by the police pursuant to a regular warrant
17 under Austrian law and questioned by the police.
18 In circumstances such as that, we would
19 submit it can't be unreasonable for a Trial Chamber, on
20 the evidence, to reach the conclusion that the waiver
21 of the right to have an attorney present was voluntary
22 unless the accused brought evidence of some particular
23 circumstance that might change the equation. And we
24 submit that it's very significant that the accused in
25 this case never brought any evidence as part of the
1 application to exclude the evidence of the interview
2 and, in particular, didn't even file an affidavit in
3 support of the application despite, of course, being
4 the person who had the primary knowledge of what the
5 facts and circumstances were.
6 JUDGE HUNT: Can you just help me there? Is
7 there any procedure available for what some countries
8 call a voir dire and others a somewhat more plebeian
9 phrase, a trial within a trial, where the accused can
10 give evidence in relation to the admissibility of
11 material but cannot be cross-examined about the facts
12 of the trial itself?
13 MR. STAKER: Your Honour, no such practice
14 appears to have been established in this Tribunal to
15 date, but --
16 JUDGE HUNT: There would be nothing to stop
17 it though, would there.
18 MR. STAKER: There would be nothing to stop
19 it. Where evidence is sought to be introduced, the
20 Rules provide that the Chamber must determine its
21 admissibility. At that stage, issues of admissibility
22 could be taken up and the matter could be determined.
23 JUDGE HUNT: Well, the very issue of whether
24 or not something is voluntary is the prime example of
25 where a voir dire is often taken, so that the complaint
1 made that the interpreter was not allowed to be called,
2 the basis of her being called being she was explain
3 what was affecting his mind. That could have been
4 answered by him quite clearly in a voir dire.
5 MR. STAKER: Yes. That is indeed our
6 submission, Your Honour.
7 We submit that the argument put on behalf of
8 Mr. Mucic here is not based on any real evidence and
9 the submissions are framed in terms of "likely" or
10 "probably." There is simply no evidence that it was
11 the case that there was any element present, in fact,
12 that would have changed the balance of the equation
13 which, as we say, as it was before the Trial Chamber,
14 could reasonably lead to the conclusion - In fact, we
15 would submit very reasonably lead to the conclusion -
16 that the waiver of the right to counsel was voluntary.
17 There is a suggestion that the second
18 interview with the investigators of the Office of the
19 Prosecutor was somehow tainted by a prior interview
20 with Austrian police officers. The interview with
21 Austrian police officers was excluded on the ground
22 that the accused did not have a lawyer present and
23 under Austrian law and procedure was not entitled to
24 have a lawyer present. That was held not to be
25 consistent with the requirements of the procedures of
1 this Tribunal.
2 But in the appellant's brief at Registry page
3 A738, paragraph (B), it's suggested that if an accused
4 gives two interviews and his or her rights under
5 Rule 42 are not respected at the first, then somehow,
6 as a matter of logic, it affects the second interview,
7 and we would submit there's nothing in logic that would
8 inevitably lead to that conclusion. We would submit
9 that even if one interview was not voluntary, as a
10 matter of logic there is no reason why an accused or a
11 suspect couldn't agree to give a second interview where
12 the waiver of the right to counsel was voluntary. We,
13 therefore, submit that it hasn't been demonstrated by
14 the appellant that there was any error in the Trial
15 Chamber's judgement in this respect.
16 I would also, just in conclusion, note that
17 the appeal brief here places very considerable reliance
18 on the law of England and Wales which it sets out at
19 length. This is the only national jurisdiction that it
20 relies upon. With the greatest of respect to that
21 jurisdiction, it is submitted that a decision of this
22 Tribunal can't be erroneous merely because it's
23 inconsistent with the law of one national
24 jurisdiction. Reference to national jurisdictions may
25 be useful for some purposes, but simply to point to the
1 provisions of one is not sufficient.
2 The appellant's appeal brief submits that the
3 legal system of England and Wales is the system having
4 the jurisprudence in relation to this ground of appeal
5 following most closely upon the substance and spirit of
6 the approach laid down in the relevant provision of the
7 Statute and the Rules, but this is merely a bald
8 submission that's not supported by any reasoning. And,
9 in fact, the appellant's appeal brief goes on to freely
10 admit that in England, Judges are pragmatic and,
11 therefore, reluctant to articulate the principles lying
12 behind the various rules behind the discretionary
13 powers. And if the judges are reluctant to articulate
14 the principles, it's submitted that it makes the value
15 of such authorities all the more questionable before
16 this Tribunal where analogies with national
17 jurisdictions, of course, would be based on general
19 The reluctance to articulate general
20 principles, I understand, is a comment frequently made
21 about common-law systems by people from the civil-law
22 tradition. I don't mean to suggest by that that
23 authorities from common-law systems aren't of value
24 before this Tribunal. They certainly are frequently
25 referred to. But it is the general principles that
1 need to be identified and articulated.
2 Apart from those submissions, Your Honour, we
3 would rely on our brief in relation to that ground of
4 appeal. Unless there are questions, I'd propose to
5 move on.
6 JUDGE HUNT: Thank you very much.
7 MR. STAKER: The next ground of appeal is the
8 conduct of Defence counsel. It's our understanding
9 this isn't a ground of appeal at all. Our submission
10 is that the inference can't be drawn that the Trial
11 Chamber was necessarily trying to criticise --
12 JUDGE HUNT: I think, as Mr. Morrison very
13 frankly said, the only point of raising it is to make
14 sure we take no notice [Realtime transcript read in
15 error "take notice"] of what was said in the judgement.
16 MR. STAKER: Our response to that would be we
17 don't think there's any suggestion that the Appeals
18 Chamber would, and the Prosecution is certainly not
19 asking the Appeals Chamber to do so.
20 I would then move on to the next ground of
21 appeal, which is the unlawful confinement of
22 civilians. Our response to this is very brief, and I
23 think it's a point that we made earlier.
24 Our position is not based on a standard of
25 knowledge that Mr. Mucic ought to have known or is to
1 be held against a standard of perfection, or anything
2 like this. I said this, in our submissions, in
3 relation to the appeal by Mr. Delic that our position
4 is based on the finding that he had actual knowledge,
5 and, therefore, the question of what the situation
6 wouldn't be if he didn't have actual knowledge is not
7 something that needs to be determined in this appeal.
8 JUDGE HUNT: May I just, before you proceed,
9 say that if the transcript correctly records me, I had
10 intended to say, "to make sure we take no notice of
11 what was said in the judgement." I'm sorry.
12 MR. STAKER: I have no further submissions,
13 Your Honour, on those grounds.
14 JUDGE HUNT: Thank you very much. Yes,
15 Mr. Morrison.
16 MR. MORRISON: Very briefly, Your Honour, the
17 point is, or one of the points is, that this ground of
18 appeal, as far as the interviews are concerned, that
19 we're dealing with a mixed question of fact and law.
20 I've not gone into the facts. They're argued in the
21 briefs. We don't, of course, because I didn't argue
22 them, is simply because we've been enjoying not to
23 argue the matters in the briefs, and I'm hopefully
24 sticking reasonably loyally to that. Same for the
25 question of whether or not the interpreter should have
1 been called. We don't in any sense withdraw from
2 that. But as far as it's a question of law, it can be
3 a review on appeal, a de novo look at the law, to see
4 whether or not the law which is being applied is the
5 law which ought to be applied, and that is
6 quintessentially a matter for an appellate tribunal.
7 As far as the question of a voir dire is
8 concerned, yes, you could have a voir dire that begs
9 the question, with the greatest of respect: How
10 valuable is a voir dire in a system where the finders
11 of both fact of law are the same tribunal? You then
12 impinge, I appreciate, on very delicate territory and
13 very delicate ground, because everybody will draw a
14 sudden breath and say, "Oh, are you possibly saying
15 that professional judges can't distinguish between the
16 two?" And no, one is not saying that at all. But what
17 it's saying is that where those matters are to be
18 tested, if it is possible, it is better that they are
19 tested in front of two separate tribunals because they
20 are separate issues which are being raised.
21 One answer is this: that, to borrow from the
22 French system of having a person equivalent to a juge
23 d'instruction, and having a predetermination of matters
24 on the voir dire, which never appeared before the Trial
25 Chamber in any shape or form, if a determination is
1 made to exclude evidence, you are then in the same
2 position as a judge and jury trial, where matters on
3 the voir dire are heard before the judge alone and the
4 jury only get to find what is admissible.
5 But because there is no system, or there
6 hasn't been a practical system, it would not, of
7 course, be right or proper, and I know this Court would
8 not, in any sense, hold that against the defendant that
9 he didn't, as it were, raise, or it wasn't raised on
10 his behalf, that such a procedure should be followed.
11 JUDGE HUNT: Mr. Morrison, my information is
12 that it was raised at some stage during the trial --
13 whether it was in relation to this matter or not, I
14 don't know -- that the existence of the procedure was
15 certainly discussed during the trial.
16 MR. MORRISON: Well, it may be that a
17 qualitative decision was made by then lead counsel. I
18 can't go into his mind on that matter.
19 I don't think there's anything else I wish to
20 say, except my learned friend did say -- talked about
21 the universal rights as far as -- or universal
22 procedure. The most universal right is that of
24 JUDGE HUNT: Thank you very much, and at a
25 very convenient time. We'll take the break now and
1 resume at midday.
2 --- Recess taken at 11.30 a.m.
3 --- On resuming at 12.04 p.m.
4 JUDGE HUNT: Now to Mr. Delic's group of
6 Mr. Moran.
7 MR. MORAN: Your Honour, Mr. Karabdic is
8 going to discuss all except Counts 46 and 47. I'll
9 discuss those separately.
10 JUDGE HUNT: Very well.
11 Yes, Mr. Karabdic.
12 MR. KARABDIC: [Interpretation] Good day, Your
14 In the proceedings before this Tribunal, it
15 is a generally accepted principle that facts have to be
16 established beyond any reasonable doubt. That is the
17 standard applied here: beyond reasonable doubt.
18 According to previous practice, facts are
19 established beyond reasonable doubt when there is no
20 doubt that can be based on reason. So it is allowed
21 that some doubt may exist, but not a doubt that would
22 be in accordance with the principle of intelligent
23 reasoning and thought.
24 In the Tadic judgement, in the first degree,
25 it was said that if a consideration of the facts allows
1 for two possibilities, then the possibility that is
2 more favourable for the accused must always be adopted,
3 and this is the principle that in continental law is
4 called in dubio pro reo: in case of doubt, what is more
5 favourable for the accused should be accepted.
6 The task of the Defence is to show that the
7 Prosecutor, in presenting their evidence, have not
8 achieved this standard. In these appeal proceedings I
9 will deal with the reasons in the judgement, in the
10 first degree, that relates to the facts and I will show
11 that the required standard of beyond reasonable doubt
12 has not been achieved.
13 I shall limit myself only to some facts from
14 the judgement. I shall take some links from the chain
15 of reasoning of the Trial Chamber in the proceedings in
16 the first instance, and this will be enough to break
17 the whole chain and to topple the whole construction of
18 the reasoning in the first degree.
19 As regards murder, Counts 1 to 4, I think
20 that my client has been found guilty of participating
21 in the murders of Scepo Gotovac and Zeljko Milosevic.
22 Let me point out at once that no witness saw or
23 testified to having seen those murders. There were no
24 eyewitnesses to describe how those murders happened.
25 The facts in the judgement are based on indicia, which
1 in our opinion, have not been established beyond
2 reasonable doubt, and taken together, they do not show
3 that these murders have been proved according to that
5 As regards the murder of Scepo Gotovac in
6 Counts 1 and 2, in this courtroom Esad Landzo, who at
7 the trial proceedings admitted that he had murdered
8 Scepo Gotovac, described how he had done it, with some
9 other guards, and does not mention Hazim Delic in his
10 confession. This confession before the Trial Chamber
11 is the strongest possible evidence, and the Trial
12 Chamber should have accepted it.
13 In our opinion, the Trial Chamber was right
14 in rejecting Landzo's testimony when he accused others,
15 but these reasons do not apply when he himself made the
16 confession and confessed to what he himself had done.
17 This fact alone --
18 MS. SINATRA: Your Honour, I'm going to have
19 to object at the moment. This is a misstatement of the
20 evidence in the case and I'm going to want to voice my
21 objection that that is a total misstatement.
22 JUDGE HUNT: We are hearing Mr. Karabdic.
23 It's a matter of argument. When you come to your
24 appeal, if it's relevant, you may raise it.
25 MS. SINATRA: Thank you, Your Honour.
1 JUDGE HUNT: Yes.
2 MR. KARABDIC: [Interpretation] This shows
3 that as regards the participation of Hazim Delic in
4 this murder, not only is there reasonable doubt, but we
5 think that it has been shown that he was not there and
6 that he did not commit this offence. The reasoning
7 given by the Trial Chamber in its judgement as regards
8 this murder, in our opinion, does not meet the
9 requirement of beyond reasonable doubt.
10 The Trial Chamber found, in paragraph 817 of
11 the judgement, that Gotovac was first taken out and
12 beaten in the afternoon, then returned to the hangar.
13 After that, in paragraph 818, it states that several
14 hours later, in the evening, he was again taken out of
15 the hangar and then he was beaten by Delic and Landzo,
16 so that two prisoners brought him into the hangar and
17 that a badge had been stuck into his forehead and that
18 he died a few hours later as a result. However, there
19 is no proof, no evidence to prove beyond reasonable
20 doubt that Delic was there at all when Gotovac was
21 taken outside for the second time in the evening when
22 he was beaten to death.
23 In paragraph 814 of the judgement, it is
24 stated that in support of the allegations made in these
25 two counts of the indictment, the Prosecution called
1 and examined 12 witnesses. Eight of those witnesses,
2 Stefan Gligorevic, Witness N, Niko Djordjic, Witness B,
3 Branko Sudar, Risto Vukalo, Rajko Draganic, and
4 Witness R, all agreed in saying that Landzo then called
5 out Gotovac's name and took him outside. It has no
6 significance that Witness B thinks that Delic was near
7 the door when Landzo called Gotovac. And when Draganic
8 says that either Landzo or Delic may have participated
9 in the fatal beating, Witnesses F and Dragan Kuljanin
10 did not know who had called out Gotovac's name, while
11 witness Branko Gotovac only supposed that it was Delic.
12 Only witness Mirko Babic claimed that Delic
13 had participated in the fatal beating, but the Trial
14 Chamber did not give credence to that witness, even
15 when he testified to his own injuries. And Articles
16 27, 28, and 29 of the indictment, paragraph 978 of the
17 judgement, so that he could not be believed when he was
18 talking about somebody else's injuries. Branko Gotovac
19 and Sudar testified to having heard Landzo's voice
20 outside the hangar. No one said that they heard
21 Delic's voice outside the hangar. They all testified
22 that this time Landzo, after the beating, brought
23 Gotovac back to the hangar, except for witness
24 Gligorevic, who did not know anything about it. I
25 think that this shows sufficiently that the standard of
1 beyond reasonable doubt has not been met and that,
2 therefore, it is in the interests of justice that Delic
3 should be acquitted of this crime.
4 The second count of murder --
5 JUDGE HUNT: Sorry. Before you proceed to
6 the next one, you did say that Mr. Landzo had confessed
7 to this crime and in the course of his confession he
8 had not mentioned your client, Mr. Delic. Now, there
9 is no reference to that in your submissions. Have you
10 got a page reference to the evidence?
11 MR. KARABDIC: [Interpretation] It is -- yes,
12 I can, Your Honour. Maybe not at this moment. Let me
13 just have a look and I'll tell you.
14 15045 to 15046, 15047. So those three pages
15 contain his statement that he killed --
16 JUDGE HUNT: That's the part that you rely
18 MR. KARABDIC: Yes.
19 JUDGE HUNT: Thank you very much.
20 MR. KARABDIC: [Interpretation] In Counts 3
21 and 4, he is accused of the death of Zeljko Milosevic,
22 who died as a result of a beating. The Trial Chamber
23 was convinced that the last beating caused the death of
24 the victim, and this is stated in paragraph 833 of the
25 judgement in the first instance.
1 In paragraph 832, as regards all the events,
2 the death of Zeljko and all the events leading to the
3 death of Zeljko Milosevic, the Trial Chamber gave
4 special credence to the testimony of Witness Novica
5 Djordjic and Milenko Kuljanin. In that paragraph it is
6 stated that Djordjic was able to observe the events and
7 that his testimony agrees with and is supported by the
8 testimony of Milenko Kuljanin.
9 The testimonies of these witnesses begin with
10 the story of Delic beating Milosevic before the cameras
11 of an Arab television crew, asking him to admit to some
12 crimes. However, the testimonies differ, and one
13 witness said one thing and another said another as to
14 what was required of Milosevic. This fact alone shows
15 that their testimonies are unreliable and cannot be
16 accepted. However, the Prosecution witness, Assad
17 Harraz, confirmed that he had visited the prison in
18 Celebici with a cameraman, and he said that at that
19 time there were no other Arab journalists in the area.
20 And he stated that there was no beating of any
21 prisoners in front of this camera crew and that he did
22 not see the inmates being treated badly. In our
23 opinion, this is sufficient to create reasonable doubt
24 and to throw doubt on the credibility of these
25 statements so that witnesses Djordjic and Kuljanin
1 cannot be accepted as reliable.
2 Furthermore, in paragraph 832 of the
3 judgement, it is stated that Djordjic heard that on
4 that night Delic called out Milosevic's name. Kuljanin says
5 that it was pitch dark, in the transcript it says
6 "pitch dark," and that he heard Delic calling out
7 Milosevic's name. That's page 5481. None of these
8 witnesses saw Delic. Both of them say that they heard
9 his voice.
10 I have to stress that identification by voice
11 is highly unreliable and insufficient to show beyond
12 reasonable doubt that this actually happened. It is
13 always possible to mistake someone's voice, to take one
14 person's voice for another, so reasonably this cannot
15 be taken as reliable evidence.
16 In the same paragraph it is stated further
17 that Djordjic heard Milosevic being called to come
18 outside and that after that he heard a discussion, then
19 beating, and then shooting. This shows that there is
20 reasonable doubt as to the manner of Milosevic's death,
21 and that it can be concluded that he was shot with a
22 bullet. This, however, is quite a different act, which
23 is not alleged in the indictment.
24 It should be added that in the morning the
25 witness saw the body of Zeljko Milosevic covered with a
1 rag, or a T-shirt over his forehead, with a big
2 bloodstain on it. That's page 4179 and 4180 in the
3 transcript. This shows even more clearly that
4 Milosevic was killed by a bullet.
5 Witness Kuljanin, however, did not see this
6 big bloodstain on the rag or T-shirt that was on the
7 victim's forehead. He said that Milosevic's head was
8 covered with a jacket that had a hood, and that he
9 recognised Milosevic by the clothes he had lent him, by
10 the shoes he wore, and by the fact that he was bald.
11 That's page 5484 in the transcript.
12 According to Djordjic, the body was above the
13 cesspool. That's page 4179 in the transcript, while
14 according to Kuljanin, it was next to the entrance to
15 the tunnel, transcript 5481. Kuljanin was persistent
16 in saying that Milosevic's body was there, and he said
17 that he saw him once when he was going to the toilet
18 and the second time when he was on his way back to the
19 hangar from the toilet.
20 These inconsistencies in the testimonies are
21 so great that they are unreliable and they cannot be
22 used to establish the facts and reach a judgement.
23 Therefore, we consider that it is in the interest of
24 justice that Hazim Delic be acquitted of these
1 As regards Counts 18, 19, 21, and 22 relating
2 to rape, I would like to point out that the Trial
3 Chamber stated correctly that according to Rule 96, in
4 cases of sexual abuse, the victim need not testify.
5 However, the Trial Chamber understood this Rule --
6 MR. MORAN: I think we had a problem with the
7 translation just a second ago. I heard Mr. Karabdic
8 saying that in a sexual-abuse case the victim need not
9 testify, and I think what he actually meant to say was
10 her testimony need not be corroborated.
11 JUDGE HUNT: Well, that's clearly what the
12 Rule says. We can understand that.
13 MR. MORAN: Yes, Your Honour. I just thought
14 there was a mistranslation.
15 MR. KARABDIC: [Interpretation] However, the
16 Trial Chamber understood this Rule in such a way that
17 it judged all the evidence in the most favourable light
18 for the Prosecution and ignored all the contradictions
19 in the evidence as well as evidence refuting the
20 Prosecutor's evidence. The Trial Chamber thought that
21 only some evidence was needed to establish the elements
22 of the offence. Testimonies were accepted which were
23 very weak and contradictory and in direct contradiction
24 to the rest of the evidence and all to the detriment of
1 Both the victims, Grozdana Cecez and
2 Witness A stated that they had been raped by Hazim
3 Delic. They named him. However, neither one of them
4 was able to identify him on the photographs shown to
5 them by the Prosecution.
6 No one ever asked them to identify him, to
7 point him out. Therefore, it has not been proved that
8 the person they mention as the perpetrator is identical
9 to Hazim Delic, against whom these proceedings are
10 being held.
11 As regards Counts 18 and 19, Grozdana Cecez
12 gave an extensive and detailed testimony. However,
13 many details which are important for the evaluation of
14 her testimony show that the Trial Chamber erred in
15 accepting her testimony.
16 Firstly, there are the circumstances that
17 show that she did not remember many events or that she
18 did not want to talk about them, and this shows that
19 her testimony cannot be accepted. For example, she
20 remembers that she gave a statement to an investigating
21 Judge of Yugoslavia. She remembers that handwritten
22 corrections were made to that statement, but she does
23 not remember when those corrections were made. She
24 does not remember that she gave a television interview,
25 and, in my opinion, an ordinary citizen or even a film
1 star who appears on television remembers when that
3 Her testimony is contradictory to the other
4 evidence presented. For example, Witness Milojka Antic
5 stated that Mrs. Cecez gave her some contraceptive
6 pills, while Mrs. Cecez claimed that she had not given
7 anyone such pills. Furthermore, she claims that her
8 doctor, a woman, in April 1992, gave her a prescription
9 for contraceptive pills and that she was able to obtain
10 these without a prescription while her doctor, a man
11 who was heard before the Trial Chamber as a witness,
12 said that he did not recommend those pills to her and
13 that, in April 1992, such pills could not be bought
14 without a doctor's prescription in the area of Konjic.
15 Mrs. Cecez claimed that she had been raped by
16 a certain person. Later, the Prosecutor brought that
17 person in and that person was heard under the pseudonym
18 "T", and Witness T categorically denied the claims
19 made by Mrs. Cecez. The Prosecution thus presented
20 evidence that Mrs. Cecez's testimony was incorrect and
21 could not be accepted.
22 Taking all this into account, I suggest that
23 the Appeals Chamber establish that as regards this
24 rape, the standard of beyond a reasonable doubt has not
25 been met and should acquit Delic.
1 Likewise, as in the case of Mrs. Cecez, a
2 similar situation pertains to Witness A, Milojka Antic,
3 who is mentioned in Counts 21 and 22 of the
5 As regards Milojka Antic, all the objections
6 I mentioned in Mrs. Cecez's case also apply. However,
7 in this case I would like to point out that she stated
8 before the Trial Chamber that she had been raped on
9 three occasions. However, she said to investigators of
10 the Prosecution that she had been raped over a period
11 of six weeks every two or three days. This discrepancy
12 is so great that it cannot be explained either by the
13 passage of time or by other circumstances. This
14 discrepancy gives rise to reasonable doubt that her
15 testimony is incorrect and cannot be accepted.
16 Furthermore, the witness stated that she had
17 taken contraceptive pills. However, she said that she
18 had had a hysterectomy and that she had had an
19 operation but that she was not sure that she could not
20 conceive. However, the Judge of the Trial Chamber,
21 Judge Jan, said that every woman knows what this
22 operation means and that in such a situation she cannot
23 conceive, and this casts doubt the testimony -- on the
24 testimony of Milojka Antic so that it cannot be
1 Therefore, it is in the interests of justice,
2 I submit, that the Trial Chamber acquit Hazim Delic.
3 JUDGE HUNT: Thank you, Mr. Karabdic.
4 Yes, Mr. Moran.
5 MR. MORAN: Good morning, Your Honours.
6 First, Judge Hunt, you asked a specific
7 question, and while Mr. Karabdic was looking, I -- or
8 talking, I looked it up. You asked -- I keep getting
9 on the wrong channel. I'm hearing Bosnian, so you'll
10 excuse me for a moment.
11 You asked where in our brief we talked about
12 Mr. Landzo's testimony.
13 JUDGE HUNT: No, no. I said you hadn't
14 raised that particular issue about his testimony and
15 there is no page reference in your brief. Now,
16 Mr. Karabdic gave me the page reference. He said
17 15045 to 15047.
18 MR. MORAN: Yes, Your Honour.
19 JUDGE HUNT: That's all I asked.
20 MR. MORAN: I'm sorry. I just wanted to
21 point out that it's on page 126 of our brief, footnote
22 239. I thought that you hadn't found it there.
23 That having been said, Your Honours, I'd like
24 to discuss Counts 46 and 47, which are the inhumane
25 conditions counts, and they're based on -- in the
1 indictment on the atmosphere of terror and the living
3 First, I think we need to point out that just
4 as conditions are not relevant to the legality of
5 confinement, the legality of confinement is not
6 relevant to whether someone is guilty of inhumane
7 conditions. They're two separate issues and should be
8 considered separately.
9 I'm going to be making basically a two-part
10 argument. The first part is that the Trial Chamber's
11 judgement is unreasonable in that some of the factual
12 findings that form the basis, frankly, violate natural
13 law as presented to the Trial Chamber and ignores
14 relevant evidence.
15 The second is an issue of law, and that is
16 whether the issue -- whether the defence of necessity
17 is available in this count. The Trial Chamber rejected
18 that argument at trial.
19 As to the unreasonableness of the verdict,
20 there were two witnesses that were presented about
21 independent witnesses concerning conditions in the
22 camp. The first was a journalist, Assad Harraz, who
23 was in the camp in the middle of the applicable time
24 period and testified at great length as to the
25 conditions, the amount of medical supplies that were
1 available, the conditions of the inmates, the basic
2 physical conditions of the camp. The Trial Chamber
3 just ignored that.
4 The second, and I think the most important of
5 the witnesses was a witness that we presented, Dr.
6 Eduardo Bellas. Dr. Bellas is a forensic pathologist,
7 a medical doctor, and he testified at great length,
8 basing his testimony on the Prosecution's witness'
9 testimony, if you would. What we did was give him the
10 Prosecution's witness' testimony or some significant
11 portion of it concerning the camp conditions and said,
12 "Doctor, in all reasonable medical probability, if
13 this was true, what would you expect to find?" And Dr.
14 Bellas testified that he would have expected to find
15 communicable diseases, which were not present; serious
16 physical injuries of a type that were not present. He
17 would have expected to find deaths by heatstroke, which
18 did not occur. There is no evidence of any of that.
19 And the Trial Chamber just never even considered that
20 evidence. It's the type of evidence that even the
21 Prosecutor said was not controversial, said that to the
22 Trial Chamber.
23 Necessity. Justice Arbour, when she was the
24 Prosecutor here, wrote a Law Review article where she
25 pointed out quite rightly that International
1 Humanitarian Law, law of war, is law for soldiers. And
2 it's quoted in my brief at some length, in the
3 citations of my brief, so it's findable.
4 One of the things that has to be given to a
5 soldier in the field is the right to do the best he can
6 in following the law given what's available to him.
7 Now, this is a case of first impression
8 before this chamber. In Aleksovski, the defence of
9 necessity was raised and the Appeals Chamber held that
10 there was a waiver at the Trial Chamber level. Here it
11 was clearly presented to the Trial Chamber and decided
13 The evidence presented at the Trial Chamber
14 was that the conditions in the entire Konjic
15 municipality were such that no matter what the good
16 faith of the parties involved was, they could not
17 provide the minimum standards required by the Geneva
18 Convention on civilians for confinement. They just
19 didn't have it. No one had the amount of food that was
20 available. No one had the place to keep these people,
21 to confine them. It just was not there. The city was
22 under siege, it was being shelled regularly, food
23 supplies were not available.
24 It is going to happen in any armed conflict
25 that sooner or later a party to that conflict is going
1 to come in to possession, if you would, of prisoners,
2 be they prisoners of war or legally detained civilians,
3 and at the same time, it's going to occur that it's
4 impossible for the detaining power to provide all of
5 the -- I don't want to say amenities, but all of the
6 things that are required by the applicable convention.
7 MR. FARRELL: Excuse me. I apologise,
8 Mr. Moran, for interrupting you.
9 I would simply note that -- I would ask that
10 the submissions be limited to the facts of this case
11 and that this Court can't take judicial notice that in
12 every armed conflict everywhere in the world there will
13 be always the case where the parties are not able to
14 provide the conditions as required by the Geneva
15 Conventions. That's not the issue here and I ask that
16 that not be considered as some type of evidentiary
17 foundations. Excuse me.
18 JUDGE HUNT: You will have the opportunity
19 later, Mr. Farrell.
20 MR. FARRELL: I appreciate that. Thank you.
21 JUDGE HUNT: As I understand, this is a very
22 long introduction as to why there should be a defence
23 of necessity available. I assume at some time we'll
24 get to the facts of this case, I hope.
25 MR. MORAN: Yes, Your Honour. I'm just
1 saying that the defence of necessity should be
2 available. And it's a defence. It's something that
3 the defendant has to prove.
4 The Trial Chamber flatly held that there is
5 no defence of necessity, that it just does not exist,
6 that the requirements of the conventions are absolute.
7 That basically gives any detaining power, including the
8 Bosnian government in this case, really three options:
9 Detain people under the best conditions that are
10 available and be criminally liable; not detain people
11 they may very well have the legal right to detain; or
12 take some other steps.
13 Now, I would just submit that as a matter of
14 law, the defence of necessity, which is nothing more
15 than "There is a law, and I'm violating this law to
16 prevent a greater harm, and therefore I am going to be
17 forgiven my violation of the law because I was
18 preventing the greater harm," should be available.
19 That's all we're saying. And that that defence being
20 available, we should be able to prove, as I think we
21 did, that the best conditions that could have been
22 provided as to food, water, toilet facilities, sleeping
23 facilities, those types of things, medical care, were
25 All of the evidence -- or at least we
1 presented evidence that the inmates in the prison were
2 given the same diet as the guards and the soldiers, the
3 same rations.
4 We provided testimony that -- or actually, we
5 didn't. It was the Prosecution witness, the
6 journalist, Mr. Harraz, who testified that he went
7 through the hospital in Konjic and he went through the
8 dispensary in the Celebici camp, and in his opinion,
9 given the number of people involved, it appeared that
10 the amount of medication available was about the same
11 per person. He was very experienced in covering wars.
12 He knew what was -- he had seen these kinds of
13 conditions before.
14 We are simply saying that the Trial Chamber
15 erred in law in not recognising that defence.
16 Unless there's some questions from the Bench,
17 I'll ...
18 JUDGE HUNT: Thank you very much.
19 MR. MORAN: Thank you, Your Honours.
20 JUDGE HUNT: I'm sorry. No. There is one.
21 JUDGE POCAR: May I perhaps raise one point
22 just to be sure of what your position is.
23 Your defence is based on the fact that these
24 conditions, although falling below the minimum standard
25 as required by international humanitarian law, were
1 unavoidable, under the circumstances, notwithstanding
2 the good faith in trying to provide good conditions.
3 So my question is the following: Am I
4 correct in assuming that the burden to prove the good
5 faith rests on the party claiming that necessity, or
6 would you think that it would have been for the
7 Prosecution to prove the absence of good faith, under
8 the circumstances, as part of the crime, I mean, of
9 the --
10 MR. MORAN: Yes, Your Honour.
11 JUDGE POCAR: What is your position on that?
12 MR. MORAN: My position would be that it is a
13 defence, which means that we have the burden of
14 bringing forward evidence to show that the conditions
15 that were provided were the best that could reasonably
16 be provided. And I think we met that burden, at least
17 by bringing forward evidence. The Trial Chamber made
18 no findings as to that.
19 JUDGE HUNT: That's not the question you were
20 asked, though.
21 MR. MORAN: Yes, Your Honour.
22 JUDGE HUNT: If you just bring forward
23 evidence, that is consistent with requiring the
24 Prosecution, having seen the evidence, to establish
25 that there was no necessity. I think you have to
1 answer Judge Pocar directly.
2 MR. MORAN: Yes, Your Honour.
3 JUDGE HUNT: Do you bear the burden of
4 persuading the Trial Chamber on the defence of
6 MR. MORAN: Yes, Your Honour. On the defence
7 of necessity, I think it must be proven by the Defence
8 to a preponderance of the evidence.
9 JUDGE POCAR: Thank you.
10 MR. MORAN: Yes, Your Honour.
11 JUDGE HUNT: Thank you.
12 Yes, Mr. Farrell.
13 MR. FARRELL: If I can start with the last
14 submission by my learned colleague, Mr. Moran, first.
15 There have been some comments about the
16 grounds of appeal raised and whether or not they're
17 actually necessary for the hearing of the appeal,
18 whether they're purely academic issues. I would
19 respectfully submit that this is clearly not an issue
20 before you that needs to be determined, and not even an
21 issue before the Trial Chamber in relation to the
22 conviction of Mr. Delic.
23 The ground of appeal relates to whether or
24 not the inhumane conditions were such that they were
25 inevitable and that there was nothing that the accused,
1 in this case, the appellant, Mr. Delic, could do to
2 have prevented the inhumane conditions, and Mr. Moran
3 refers to things like lack of food.
4 I would note that Mr. Delic was never
5 convicted of this with respect to these counts. He was
6 not found to be a superior and he was not found to be
7 responsible for the conditions in the camp. Mr. Delic
8 was found, at paragraph 1121, to be responsible for the
9 direct acts of violence he committed in the camp which
10 contributed to the atmosphere of terror.
11 What was concluded was that he was not found
12 to have exercised superior authority over the Celebici
13 prison camp, for this reason: The Trial Chamber finds
14 that Hazim Delic cannot be held responsible as a
15 superior for the inhumane conditions that prevailed in
16 the Celebici prison camp. So with respect, he was not
17 found guilty, and this is not an issue before you with
18 respect to his conviction.
19 The Trial Chamber did find that by virtue of
20 his direct participation in specific acts of violence
21 which he was charged with in the indictment and which
22 have been proven, that he was a direct participant in
23 the creation and maintenance of an atmosphere of
25 With respect, as we know from the decision in
1 Aleksovski, defence of necessity that the conditions
2 regarding the health and welfare of the prisoners,
3 resulting in inhumane conditions, that defence of
4 necessity has nothing to do with the acts of violence
5 committed by Mr. Delic.
6 This issue was actually -- as I'm sure Judge
7 Hunt will remember, we debated this issue of necessity
8 in the Aleksovski case, and in fact, Mr. Aleksovski
9 raised a similar defence regarding the inhumane
10 conditions. Mr. Aleksovski was also found guilty, not
11 necessarily for the conditions, but for the
12 mistreatment of the prisoners, the same situation, in
13 my submission, as Mr. Delic.
14 What the Court in Aleksovski said, and I
15 submit the facts are sufficiently similar, at paragraph
16 54, was that what the appellant is in effect submitting
17 is that the mistreatment the detainees suffered should
18 have been interpreted by the Trial Chamber as somehow
19 having been justified by the assertion that they would
20 have suffered even more had they been treated in a
21 different manner, that is, if they had been released
22 from detention. Here the defence of necessity somehow
23 is that the Trial Chamber should find that the acts of
24 violence were somehow justified, as a matter of
25 necessity, because they couldn't provide them food.
1 The Appeals Chamber in Aleksovski goes on and
3 "The appellant does not and cannot argue in
4 the present case that he was faced with only two
5 options, namely, mistreating the detainees or freeing
6 them. The appellant, faced which the actual choice of
7 mistreating the detainees or not, was convicted for
8 choosing the former."
9 Likewise, in this case, Mr. Delic was
10 convicted for choosing to mistreat, torture, and kill
11 detainees, not for making a choice, when he could make
12 none other, to somehow not provide the sufficient
13 conditions for humane treatment.
14 Secondly, I would simply note that the Trial
15 Chamber specifically made a finding of fact with
16 respect to this matter, that the inhumane conditions
17 inflicted upon the detainees were a product of design,
18 not necessity, at paragraph 1118.
19 As a result, it's my submission that
20 Mr. Delic is raising a matter which does not directly
21 relate to him and does not affect his determination of
23 Now if I may, with respect, turn to the other
24 counts. I'll start with the ones raised by my learned
25 colleague Mr. Karabdic.
1 He starts with some general standards of
2 review. I know that as a result of the Status
3 Conference, the standards of review are not to be
4 briefed, and I will not brief you on it. I would
5 simply bring to your attention that the issues raised
6 regarding the sufficiency of evidence, the standard
7 submitted in the appellant's brief, are responded to in
8 our brief in this case, but I'd also inform the Appeals
9 Chamber, as I'm sure you're aware, these very same
10 issues and the same standards proposed by the appellant
11 are also put forward in the Furundzija appeal case, so
12 that matter is being determined in that case as well.
13 Regarding counts 1 and 2, this is the beating
14 death of Mr. Gotovac, the submissions by my colleague
15 are that the evidence is insufficient and that it
16 doesn't meet the reasonable doubt standard. Obviously,
17 the Prosecution's submission is that it's not whether
18 or not the evidence meets a reasonable doubt standard,
19 but whether or not it was unreasonable, on all the
20 evidence before the Trial Chamber, to have reached the
21 conclusion it did.
22 The main submission, as I understand it, or
23 at least one of the main submissions -- I'm sorry -- is
24 that there was no evidence that he was involved in the
25 second beating. There was a beating in the afternoon
1 and then there was a beating later on that day of the
2 deceased, and as a result of the beating the second
3 time, he died. And the submission is that Mr. Delic
4 has nothing to do with the second beating and there's
5 no evidence of that.
6 Obviously this matter, in the Prosecution's
7 submission, needs to be looked at in context. The
8 beatings and the resulting death all took place in the
9 course of one afternoon and evening. There's no
10 separation, per se, of these events. Secondly, the
11 beatings were of a 70-year-old man. Thirdly, there was
12 evidence, which I will bring to your attention, that
13 corroborated that Mr. Delic threatened to kill this
14 witness, this victim, that day.
15 Mr. Delic, the evidence indicates, was
16 involved in the beating of this victim inside the
17 hangar, and then outside the hangar earlier on the same
18 day, the same day that he threatens to kill him. Only
19 a few hours later the victim was then taken outside the
20 hangar again. And there are two witnesses, Mirko Babic
21 and another witness, Witness B, which the Trial Chamber
22 relies on and which I'll refer to briefly.
23 The last thing is that Mr. Delic admitted in
24 his statement that he knew that the victim had actually
25 died in the camp.
1 Regarding the first complaint, or error, as
2 alleged by my friend, that the Trial Chamber should not
3 have relied on the witness Babic -- and as I understand
4 it, he says that Mr. Babic's testimony was not relied
5 upon by the Trial Chamber in other counts -- counts 27,
6 28, and 29 -- and therefore that taints his whole
7 evidence. With respect, Mr. Babic was not believed,
8 according to the Trial Chamber, in relation to these
9 counts as a result of the fact that his evidence in
10 this instance was not wholly reliable. It doesn't
11 conclude that he was completely an unreliable witness
12 that can't be believed in all circumstances. And they
13 find that there was other evidence which seemed to
14 contradict it and there was no supporting evidence
15 whatsoever from Mr. Babic.
16 JUDGE HUNT: May I suggest that you face up
17 to the real problem with this witness. The Trial
18 Chamber disbelieved him in relation to those other
19 counts not simply because of the quality of his
20 evidence in relation to those other counts but because
21 he had given untrue evidence, which they found to be
22 untrue evidence, about his own injuries, I think it
23 was. So there was some third incident which infected
24 the quality of his evidence in relation to the other
25 counts where they didn't believe him. And the issue
1 is: Why didn't that third incident similarly infect
2 his evidence in relation to this incident?
3 MR. FARRELL: First of all, it appears they
4 didn't believe him, clearly, but I think the language
5 is that they said that it was not wholly reliable. And
6 with respect, there is a fine distinction between proof
7 beyond a reasonable doubt and finding that a witness is
8 lying. But taking that as it is, I'm sure you're
9 familiar with the distinction, Judge Hunt.
10 First of all, the evidence with respect to
11 Mr. Babic about the beatings earlier on in the day are
12 consistent with the other evidence. No one disputes
13 that this witness was not beaten earlier on in the
14 day. There's extensive corroboration regarding the
15 beatings and the death.
16 Secondly, with respect to this evidence that
17 it was Delic, there were two pieces of evidence -- I'm
18 sorry -- there was evidence that Mr. Delic threatened
19 to kill him that day, as I understand it. I'll have to
20 pull that out. There was also evidence that Mr. Babic
21 said that Delic and Landzo came to the door.
22 The evidence that is referred to as
23 unreliable with respect to the coming to the door, as
24 Witness B -- and they said that in light of the fact
25 that there's only one witness, Witness B, who refers to
1 Delic coming to the door, there is no other evidence
2 that Mr. Delic was involved.
3 With respect, in light of the context and in
4 light of the threat -- and there's no doubt he
5 threatened to kill him. There's no doubt the beatings
6 took place that day, there's no doubt that the beatings
7 continued that day, and there's no doubt that they came
8 back two hours later after the beating and after the
9 threat, to kill him, to come and get the victim. In
10 that respect, Mr. Babic's evidence is not inconsistent;
11 in fact, it's corroborated.
12 The one witness that my friend refers to that
13 relates to whether or not Delic was there, Mr. Babic
14 indicates that Delic was there, he was at the door when
15 the victim was taken out. He's correct that there was
16 only one witness who actually supported that. That was
17 Witness B, and was found credible by the Trial
19 Witness B's testimony, in describing where
20 the people were when they came the second time to get
21 the victim to beat him, states that he thinks he was at
22 the door, outside. And in my respectful submission --
23 and this is a reading that requires the Trial Chamber's
24 determination -- he was describing where Mr. Delic was,
25 not whether he thought he was there or not. He
1 describes that there were people that came to get him.
2 He doesn't identify Delic. That's fair enough. But
3 what he does say is that there were people that came to
4 get him. He describes where Landzo was, and then he
5 says, "Yes, Landzo actually was the one who came in."
6 And then he says, "I think Delic was at the door,
7 outside." In my respectful submission, it's not that
8 he thinks that Delic was there. He's identifying where
9 he is, that he was in the door frame, outside/inside.
10 That's where he thinks he was.
11 JUDGE HUNT: The problem you'll have there,
12 and you might like to come back to this after lunch, is
13 that the Trial Chamber seems to have specifically found
14 that death resulted from the second of the beatings.
15 MR. FARRELL: Fair enough.
16 JUDGE HUNT: So there is no causal connection
17 between the first beating and the death. And if the
18 evidence relating to the second beating is found by
19 this Chamber to have been such that the determination
20 made was unreasonable, how do you go there?
21 MR. FARRELL: I think I can answer that very
22 briefly. I mean, I think the Prosecution's case
23 related to the second beating. It wasn't clear -- and
24 I'll look at the evidence at the break -- that the
25 first beating would have resulted in death. So I think
1 you're correct. I think the causal connection is in
2 relation to apparently the second -- not apparently --
3 in relation to the second beating. But I'll look at
4 the evidence for whether or not there's any evidence
5 that the first could have resulted, which negates the
6 necessity of determining his existence with the second.
7 Thank you.
8 JUDGE HUNT: Thank you. We'll adjourn now
9 until 2.30.
10 --- Luncheon recess taken at 1.03 p.m.
1 --- On resuming at 2.32 p.m.
2 JUDGE HUNT: Just before you resume, we have
3 now received the translations of those newspaper
4 cuttings. What is the Prosecution's attitude towards
5 accepting them into evidence subject to relevance and
7 MR. STAKER: Your Honour, I think we've
8 addressed that in a filing already. We don't object to
9 their admission as evidence that they were published as
10 press reports.
11 JUDGE HUNT: What does that mean?
12 MR. STAKER: Well, the fact that something is
13 published in the press as a press report, depending on
14 where it's published, might render it more likely that
15 the facts reported in it did happen, that they wouldn't
16 be conclusive evidence.
17 JUDGE HUNT: Oh, certainly not. Certainly
18 not. That's all they're tendered for, to show that
19 this was reported, and they will use it, as I
20 understand it, as some evidence that it happened. What
21 weight we give it to it is a matter for us.
22 MR. STAKER: Exactly, Your Honour.
23 JUDGE HUNT: Yes.
24 MR. STAKER: All we're saying is we don't
25 object to them going into evidence as evidence that
1 newspaper reports in that wording were, in fact,
3 JUDGE HUNT: Thank you, Mr. Staker.
4 Sorry, Mr. Farrell.
5 MR. FARRELL: Thank you, Your Honour.
6 In an attempt to address your question,
7 Judge Hunt, regarding the issue of causation. My
8 understanding, of course, is that if there is -- if the
9 evidence that supports the linking of Mr. Delic to the
10 second incident is found to be unreasonable, and I've
11 already made my submission on Witness B and Mirko
12 Babic, then the question becomes whether or not it can
13 still be substantiated as a result of a link or the
14 cause of death to the first one.
15 JUDGE HUNT: That's right.
16 MR. FARRELL: I think to be fair, the Trial
17 Chamber didn't find that, first of all, as I'm sure
18 you're fully aware, at paragraph 818 and 823.
19 Paragraph 818, they make a specific finding that the
20 death was a consequence of the second beating. They
21 find at 823 that he died as a result of the injuries he
22 received after listing the two beatings, but I think to
23 be fair, that clearly must be read in light of the
24 previous paragraph.
25 That being the case, I don't think there was
1 any finding that there was a link between the first
2 beating and the death.
3 For the Prosecution to now argue that this
4 Appeals Chamber should substitute -- should uphold the
5 verdict on the basis that it should substitute a
6 finding of fact, the Prosecution would have to argue
7 that the only reasonable conclusion on the evidence
8 before you would be that there was a causal link from
9 the first beating.
10 To be fair, I don't think the evidence before
11 you meets that standard. I can go through the
12 evidence. I went through all of it, but there's only
13 one witness who directly refers to the result or the
14 impact of the first beating, the others do not, and
15 there is the intervening event of the second one. So I
16 think to be fair, that can't be substantiated.
17 JUDGE HUNT: Thank you.
18 MR. FARRELL: With respect to Counts 3 and 4
19 and the evidence that was put forward, I would make one
20 note. In, I think, almost all of these submissions by
21 the Defence, they raise two grounds in many of them.
22 The first was that the victim was not a protected
23 person, and then secondly, that the evidence was
25 Just to make sure I cover the first ground,
1 Mr. Staker argued, with respect to the unlawful
2 confinement, the findings of fact by the Trial Chamber
3 that the victims were, in fact, civilians and protected
4 persons. The issue of protected persons in law has
5 been argued. The issue of protected person in
6 substance and the facts as found by the Trial Chamber
7 has been mentioned by Mr. Staker.
8 I would only simply draw to your attention
9 that the Trial Chamber's finding at paragraph 1130 that
10 they were civilians; paragraph 1134 that the detention
11 was a collective measure aimed at a specific group
12 based on their ethnic background; and the submission, I
13 think, by my learned colleagues is that there wasn't a
14 specific finding that the victims as alleged in the
15 indictment, not a general finding but a specific
16 finding of these victims or the victims as alleged in
17 the indictment were protected persons, and I would
18 simply refer you to paragraph 265, where the Trial
19 Chamber found:
20 "It is clear that the victims of the acts
21 alleged in the indictment were arrested and detained
22 mainly on the basis of their Serb identity."
23 And based on their previous finding as to
24 that being the basis for the protected person status,
25 I'd say that that is a finding with respect to the
1 victims alleged in the indictment.
2 I have reviewed the evidence on a number of
3 the victims that the appellant indicates there was no
4 evidence on, indicating that they were Serb and that
5 they were detained because of their Serb identity, but
6 in my submission, in paragraph 265 meets that test.
7 With respect to Counts 3 and 4, this is the
8 killing of Zeljko Milosvic, one the issues I understand
9 being raised was the inconsistency in the evidence
10 between Milenko Kuljanin and another witness named
11 Djordjic. There was the argument put forward that, in
12 fact, all they could hear was Mr. Delic's voice and
13 that, therefore, the simple voice identification of
14 Mr. Delic certainly was insufficient to make a finding
15 of fact in this regard.
16 Before going to the evidence regarding the
17 voice identification, as it's called, it's the
18 Prosecution's submission that there's an important
19 piece of evidence -- it's not specifically referred to
20 by the Trial Chamber and it's not referred to in my
21 friend's brief -- and that is the evidence of both
22 Djordjic and Kuljanin.
23 The evidence of the witness Djordjic is at
24 transcript page 4177. And at that page he states that
25 that day, the day before the night, Hazim Delic told
1 him that that night at 1.00, 1.00 a.m., he would go to
2 the toilet. This is in relation to the witness's
3 testimony that Hazim Delic had basically told him
4 earlier that day that he was going to be -- that Delic
5 was going to come and get him again. Further on,
6 Mr. Djordjic, at transcript 4179, continues and says:
7 "And indeed, as Hazim had said, that
8 night -- I don't know what time it was -- his voice
9 could be heard outside building number 9 and he called
10 out Zeljko Milosevic."
11 Further, the other witness referred to by the
12 Trial Chamber, Kuljanin, at transcript page 5483, in
13 relation to this issue about the appellant, Mr. Delic,
14 calling the victim out earlier in the evening, the
15 witness testified:
16 "So he had," "he" being Mr. Delic, "had
17 actually forewarned him," that being the victim, "of
18 what was to come and told him to be ready at 1.00 a.m.,
19 and that was what happened."
20 Then the next step is the evidence of when
21 the two individuals heard the voice of Mr. Delic
22 calling out the victim.
23 When assessing the evidence of the two
24 witnesses saying that Delic called out the victim and
25 he died as a result of the beating, the Prosecution
1 would submit that you should look at other evidence
2 which isn't referred to, which is the evidence of both
3 of them saying Mr. Delic forewarned him and told him he
4 would be coming and getting him and that he would be
5 called out later that night. In my submission, that's
6 evidence of the intention of Mr. Delic and clearly can
7 be linked to the voice identification of the two that
8 that, in fact, is what happened.
9 With respect to the two witnesses, there
10 clearly is some differences in their testimony, and the
11 Trial Chamber actually notes the discrepancies and the
12 differences of their testimony. But it seems fairly
13 clear that they're similar in the fact there was the
14 comment by Mr. Delic that he was to come out later that
15 evening. There was the evidence of both of them that
16 he was, in fact, taken out of the building that night.
17 Both of them confirm in their testimony that it was
18 Mr. Delic's voice and that Mr. Delic did call him out,
19 as he had indicated earlier in the day. Both indicated
20 that they could hear the beatings just outside the door
21 after he was taken out by Mr. Delic. Both of their
22 evidence is that he did not return, and both see the
23 body the next day at a similar place when both are
24 being taken to the toilet.
25 There clearly is discrepancies, as indicated
1 by my friend, regarding whether one saw a T-shirt over
2 his head, over his body, or one saw what he thought was
3 a jacket over his head, but in relation to the
4 discrepancies, in light of the accuracy and consistency
5 of their statements and the findings by the Trial
6 Chamber, I submit that it's not unreasonable.
7 The next count, if I may, is counts 18 and
8 19. This is in relation to the rape count of
9 Mrs. Cecez, if I pronounced it correctly.
10 There was one comment made by my learned
11 colleague and one submission made regarding the
12 corroborative nature of the evidence, though it's no
13 longer necessary. There's a comment in the brief that
14 the Trial Chamber erred by relying on a presumption of
15 reliability with respect to the two. And I'm not sure
16 that's exactly what he's getting at, but I think that
17 may have been what he was getting at, and in his brief
18 he refers to a passage where the Trial Chamber quotes
19 from another decision, that's the Tadic decision, that
20 there is a presumption of reliability vis-a-vis
21 witnesses of sexual assault.
22 In the Prosecution's submission, clearly what
23 that relates to is the recognition by this Tribunal,
24 and many other jurisdictions, obviously, that you no
25 longer require corroboration of the testimony of
1 victims of sexual assault. It rebuts the former rule,
2 or the former presumption, in fact, that victims of
3 sexual assault were in some way inherently unreliable
4 and therefore --
5 JUDGE HUNT: You're right about that, but it
6 is a very unfortunately expressed statement in the
7 Tadic judgement. Clearly, I think, the Rule was
8 inserted to overcome the presumption of unreliability
9 which some 19th-century judges imputed to victims of
10 rape or complainants of rape. And if that was all they
11 had said, there could be no quarrel with it. But the
12 expression is that it accords to the testimony of a
13 victim of sexual assault the same presumption of
14 reliability as the testimony of victims of other
15 crimes. Well, there is no presumption of reliability
16 of any witness. All they're saying is that they're in
17 no -- I think what they had intended to say was that
18 there is no difference between a rape complainant and
19 any other sort of complainant.
20 MR. FARRELL: I think that's clearly what
21 they --
22 JUDGE HUNT: But it is very unfortunately
24 MR. FARRELL: The wording I would -- I mean,
25 it's taken from the Tadic Trial Chamber's decision and
1 quoted, and it's also quoted -- in fact, the same
2 language is quoted in the Akayesu judgement for the
3 exact same proposition. And I think the -- at least
4 the understanding that I can draw from it is that it's
5 the same as yours, Judge Hunt. I think the language is
6 not that there's, in fact, a presumption of reliability
7 in the sense that they're presumed to be reliable
8 simply because they're a victim; it's that their
9 evidence shouldn't be accorded some type of diminished
10 value because it's not corroborated. And I would refer
11 to -- that's the understanding, and I think that's
12 clearly what the submission of the Prosecution is.
13 Just to note what was mentioned by the Trial
14 Chamber in Akayesu, the Trial Chamber in Akayesu, in
15 paragraph 134, refer to the same passage and quote the
16 same passage from the Tadic judgement.
17 Then in paragraph 135, the Trial Chamber in
18 Akayesu says:
19 "In view of the above, the Chamber can rule
20 on the basis of a single testimony, provided such
21 testimony is, in its opinion, relevant and credible."
22 And in my submission, clearly the inference
23 that's drawn by the Trial Chamber in Akayesu, the
24 obvious inference is the meaning from Tadic and by the
25 Trial Chamber in Celebici, as indicated by Judge Hunt.
1 I just wanted to address that issue.
2 Now back with respect to the factual basis
3 for counts 18 and 19. Once again, there is an
4 allegation that the victim was not a protected person,
5 and that's been addressed.
6 One of the issues raised is the
7 identification of the accused by this victim, and there
8 was some comment about the fact that her -- there was a
9 problem with her identification itself in the photo
11 Now, with respect to the testimony of this
12 victim, it's submitted that, in fact, there are four
13 pieces or elements upon which you can find that there
14 was sufficient evidence of identification. First of
15 all is the evidence that the accused, in this case,
16 Mr. Delic, had a crutch and was limping, and that's how
17 she identifies him at numerous passages: in her
18 testimony at page 513, and her testimony at 513 further
19 on, when she then identifies him as coming and going
20 often in the camp.
21 This evidence that he was -- one thing that
22 she knew him by, besides hearing his name, of course,
23 but as "the man with the crutch" was corroborated by
24 other witnesses, that he did have a crutch and that he
25 was limping as he was walking around in the prison. So
1 first of all, there's a link of identification with
2 respect to her allegation as to who the man was that
3 did it and what his condition was. There's four or
4 five transcript references to that.
5 I'd also note that Mr. Delic, according to a
6 medical report which was relied on, was in the hospital
7 from the 21st to 25th of May, 1992 for an injury to his
8 leg. So 21st to the 25th of May. The victim arrived
9 at Celebici camp on the 27th of May, two days later,
10 which is equally consistent with her testimony that he
11 had a crutch and he obviously was limping. She arrived
12 two days after he came out of the hospital with a
14 Secondly, she indicates in her evidence that
15 she frequently heard others refer to him as "Delic" and
16 others refer to him as "Hazim."
17 Thirdly, she identifies that he was
18 essentially the second most important person in the
19 camp. She identifies him by his title. At her
20 transcript page 514, she states: "We heard that Pavo
21 was the most important, Pavo Music, and he" meaning
22 Delic, "was his deputy."
23 Fourthly is the issue of photo
24 identification. She did not clearly identify him in
25 the photo identification. She said she was not sure.
1 But what is telling about her testimony is that when
2 she says, "I am not sure," she says, "I don't dare say
3 which one. Maybe the man has changed. After all, I
4 haven't seen him for five years." In fact, the witness
5 is being quite careful, and it has been five years, and
6 she only saw him in the camp for a month or so.
7 There is also the Witness T, as I understand
8 it, who the victim claimed that Witness T actually had
9 committed a rape on her as well. Witness T testified
10 at the trial, and Witness T denied it. The Defence
11 relies on this as another piece of evidence which
12 clearly goes to her credibility.
13 First of all, I don't know how much the
14 weight the Trial Chamber gave to the fact that a
15 witness who was obviously in a position of a guard in
16 the camp is going to come before the Tribunal and admit
17 that he committed a war crime. Regardless of that,
18 what is useful from his testimony is that when he is
19 asked specifically whether or not he raped the victim,
20 Witness T states: "This is a made-up story as much as
21 possible. The only person who raped in the camp were
22 Hazim Delic and another man." In fact, when asked
23 about this specific witness, his answer with his
24 denial, which has been brought to your attention, also
25 is the identification of Mr. Delic.
1 If I can move on now to the witness
2 Ms. Antic. This is Counts, 21, 22, and 23.
3 Once again, the issue of identification is
4 raised, and I'll just briefly speak to that.
5 First of all, she describes Mr. Delic as the
6 commander in the camp, and she says that within the
7 camp itself, Mr. Mucic was in charge. Once again
8 equally consistent with the actual positions found by
9 the Trial Chamber.
10 Secondly, with respect to the photo ID, she
11 actually picks out number 4, which is Mr. Delic, and
12 fair enough, as is alleged, she doesn't say it's
13 exactly him, but what she does says is: "He seems to
14 be familiar. I'm not sure, but you must remember it
15 has been five years since it happened, so the details
16 are a bit vague. But the features I remember are the
17 forehead, the nose, and the mouth. As far as I can
18 remember, since it was some time ago, he looked like
19 the perpetrator of the crime."
20 Secondly -- or the third piece of evidence
21 which assists in identification is that on the first
22 night at the camp, this witness testified that she had
23 been raped by Mr. Delic, and that after that she went
24 back and she couldn't stop crying.
25 Another witness, the witness who was the
1 victim of the previous counts, Grozdana Cecez,
2 testified Hazim Delic raped this witness that first
3 night. "The girl cried for 24 hours. She could not
4 stop." It's equally consistent with the testimony of
5 the victim.
6 Secondly, with respect to the second one, the
7 victim testified that one day Mr. Delic came during the
8 daylight and ordered we go into the command building
9 where they were to wash up. She and another victim
10 then went and went to that building to wash up in a
11 bathroom. There was discrepancy in their evidence as
12 to who went first, and when one of them washed up did
13 the other one go back, but they both confirmed that
14 they went there, and they both confirmed that the
15 circumstances were the same.
16 The victim then testified that after she
17 washed up, she was then called into another room where
18 Mr. Delic was and the second incident occurred.
19 In that respect most of the testimony is
20 similar with respect to the incidents leading up to
21 it. Now, the victim testified that she was called
22 separately into where the second rape occurred so
23 obviously the other witness couldn't confirm that but
24 confirms all the evidence leading up to it with the
25 minor discrepancies that I've mentioned.
1 There was the other passage of -- I should
2 mention one thing. This may, just it be fair, may
3 assist or not assist the Prosecution, but in the
4 testimony of the victim, she indicates that after the
5 second rape, when she returned, she did not tell the
6 other witness, the other witness who went to the
7 command building for the wash and who actually
8 confirmed her testimony with respect to the first
9 rape. She says that she didn't tell that witness.
10 She does state, though, that she never spoke
11 with and never had the chance to meet with that witness
12 again. She says in cross-examination at 1827: "The
13 victim indicated that she had no contact with the other
14 witness." This other witness is the confirming witness
15 that the Prosecution and the Trial Judge relies on.
16 The other witness does testify though, and what she
17 testifies to is that she was told.
18 Now, on its face it may look like an
19 inconsistency, and in fairness to the Defence, this is
20 an inconsistency in the evidence between two witnesses
21 as to after the second rape whether the victim told the
22 other witness.
23 Despite that discrepancy between whether one
24 told the other, it appears that she was told. It
25 appears that the witness was told. As she indicates
1 that there was no time for them to contact or be in
2 touch prior to the testimony, at least if I read it
3 correctly, the confirming witness states that she was
4 told when the victim returned.
5 Grozdana Cecez at page 529 says about this
6 victim: "They came to get her to wash up at the
7 command building. I went in to take a shower. Later I
8 went back to my room and the guards took out the
9 victim," the victim of this count. "When she came
10 back," that's the victim came back, "she was crying,
11 and she told me while she was washing up, Hazim Delic
12 had raped her and she then had been brought back."
13 Now, as I indicated, the victim herself said
14 that she didn't tell this person. That may be a
15 discrepancy, but the actual testimony is equally
16 consistent. It can't be denied that the facts are
17 completely consistent with what happened.
18 I've dealt with Counts 46 and 47 which deal
19 with the defence of necessity and those are essentially
20 my submissions.
21 There is one thing that I noted over the
22 lunch break, and I think to be fair, the identification
23 of -- the photo identification of the second witness,
24 Ms. Antic, I reviewed the transcripts, and it appears
25 there is some, once again to be fair to the Defence, it
1 appears it's unclear as to whether or not Mr. Delic is,
2 in fact, the one identified. So in fairness to the
3 Defence, they have relied on it and they've said that
4 the photo identification is problematic. The
5 Prosecution's submission rests on the fact that she
6 does basically identify him but then says she can't be
7 sure because it was five years ago.
8 In the manner in which this was presented at
9 trial, the Prosecution presented, if I read it
10 correctly, they presented the photo identification
11 line-up of six people, and they presented the --
12 basically the statement by the victim in which she
13 identifies a person, and the extent to which she
14 identifies that person I've referred to as saying "he
15 looks familiar." So to that extent it's not a strong
16 identification obviously.
17 But I think to be fair, when you review the
18 transcripts I think you'll see, unless I've missed
19 them, that, in fact, what happens is that the witness
20 says that, "This is my identification. He looks
21 familiar but I haven't seen him in five years." She
22 identifies him as number 4. The photo board and the
23 document are tendered but then the -- neither the
24 Prosecution nor the witness indicate that number 4
25 happens to be Mr. Delic. So we have the evidence
1 before the Court, we have the picture before the Court,
2 we have her testimony as to that he seems to be
3 familiar, but on the face of the transcript itself, to
4 be fair, it's not then confirmed that Mr. 4 is
5 Mr. Delic, and it's hard to say whether or not at this
6 point in time that picture is Mr. Delic, to be
7 completely fair.
8 I think that at the time, in the
9 Prosecution's submission, what had happened was it was
10 clear to the persons who were putting the document
11 forward who that person was, and it was clear to the
12 bench when they looked at that document who that
13 person was, but it doesn't appear to be on the
14 transcripts in relation to this issue.
15 So since it was raised by the Defence, I
16 wanted to make sure it was clear.
17 JUDGE HUNT: Do we have the exhibit itself
19 MR. FARRELL: Yes, we do. We have the
20 exhibit with the photo and her statement attached to
21 the exhibit, identifying the person.
22 JUDGE HUNT: Thank you.
23 MR. FARRELL: But not the specific
24 identification in terms of the Prosecution identifying
25 who it is in the photo line-up, as far as I could tell,
1 unless it's somewhere in the transcripts I missed.
2 Subject to any questions, those are my
3 submissions to the grounds of appeal raised by
4 Mr. Delic.
5 JUDGE HUNT: Thank you very much.
6 MR. FARRELL: Thank you very much.
7 JUDGE HUNT: Mr. Karabdic, do you wish to
9 Mr. Moran.
10 MR. MORAN: Yes Your Honour.
11 JUDGE HUNT: Thank you.
12 MR. MORAN: Your Honour, rather quickly from
13 back to front, if you would. The photo array is our
14 exhibit. The Prosecution, exercising the highest
15 ethical standards, both told us that there had been a
16 failure to identify and gave us the photo array, and I
17 introduced it. So that's how it's in the record.
18 Your Honours, the Prosecution has to prove
19 identity. That is part of their proof, and if they
20 didn't get it in the record, they didn't prove it.
21 And what -- and when it comes to mentioning
22 the names, on Witness T there was some discussion that
23 Witness T had been accused of rape. On
24 cross-examination, he was presented with Ms. Antic's
25 testimony -- excuse me, Ms. Cecez's testimony, right
1 out of the transcript. "Here's what she said. Is she
2 mistaken or are you a war criminal?" And of course,
3 needless to say, as one would expect, he denied the
5 Then there was some discussion in the
6 transcript, as I recall, and I believe it was Judge
7 Jan, and it may have been the Prosecutor, saying,
8 "Maybe she's mistaken about the name." Well, maybe
9 she's mistaken about the name of Witness T. Just as
10 likely, she's mistaken about the name "Hazim Delic."
11 There was no positive identification. During
12 the entire trial, Mr. Delic was sitting in the seat
13 he's sitting in now, and no one ever asked these
14 people, "Do you see the man that raped you?" Nobody
15 ever asked.
16 Judge Hunt, on the presumption of
17 reliability, that is definitely unfortunate language.
18 JUDGE HUNT: Perhaps I should make it clear.
19 I am only saying what I believe they meant. Whether or
20 not that was what they meant, I don't know.
21 MR. MORAN: Your Honour, I think that when a
22 Judge writes an opinion or a group of Judges write an
23 opinion in a judgement, we owe it to those Judges to
24 presume that when they say they use a legal test that
25 that's the legal test that they used, and I credit the
1 three Judges on the Trial Chamber with doing exactly
2 what they said they did, which was presumption of
3 reliability. If, in fact, that is true, that they did
4 that, that is clearly reversing the burden of proof,
5 that no witness is reliable, each witness stands on his
6 or her own merits. There's no presumption one way or
7 the other.
8 Counts 3 and 4, the two murder counts, all of
9 these counts together on protected persons. I believe
10 that that's been well presented to the Court. It's a
11 question of law. Either these persons were protected
12 persons or they're not. That was included in the brief
13 just to make sure nothing was waived.
14 The Prosecution, in saying that the evidence
15 was sufficient in Counts 3 and 4 wants the Appeals
16 Chamber to take into account evidence that was not
17 referred to by the Trial Chamber. I think that's
18 basically asking the Appeals Chamber to make fact
19 findings. We don't know how the Trial Chamber judged
20 the credibility of those witnesses, the credibility of
21 those specific pieces of testimony.
22 JUDGE BENNOUNA: [Interpretation] Let me
23 interrupt you, Mr. Moran, if I may, on something that
24 you said previously. I am sorry. I'm very quickly
25 going back to something that you mentioned a little
1 earlier on on the issue of the protected persons.
2 MR. MORAN: Your Honour, I'm not getting any
4 JUDGE BENNOUNA: [Interpretation] The English
5 interpretation is given and appears on the transcript.
6 JUDGE HUNT: It's channel number 4.
7 MR. MORAN: That's what I'm on, Your Honour,.
8 THE INTERPRETER: Can you hear us,
9 Mr. Moran? Can you hear the interpretation into
11 MR. MORAN: Just barely.
12 THE INTERPRETER: Maybe you can push the
13 volume up.
14 JUDGE BENNOUNA: Can you hear us now, Mr.
15 Moran? Can you hear me?
16 MR. MORAN: Now I can hear, Your Honour.
17 JUDGE BENNOUNA: [Interpretation] Right. This
18 is going to be quite straightforward. Mr. Farrell
19 reminded us a moment ago that on the issue of protected
20 persons, we could go to paragraph 265 of the Celebici
21 judgement where it is said: "[In English] [Previous
22 translation continues] ... acts alleged in the
23 indictment were arrested on the basis of their Serb
25 [Interpretation] So the question I want your
1 opinion on is the following: Don't you think that as
2 far as the parties at conflict are concerned and for
3 the Bosnian Muslim party, who belong to the other
4 ethnicity, don't you think then that this party is
5 considered to be the enemy and as such they are
6 considered as being people belonging to the other
7 nationality, to the nationality of the other party? So
8 they come from the opposing, the rival party, so to
9 speak. So here you have the presumption that from the
10 moment these people belong to another ethnicity, in
11 that case the Serb ethnicity, from that moment on then
12 they're considered as the enemy and they were arrested
13 on that particular basis.
14 This is what Mr. Farrell said. Well, he
15 didn't say that exactly, he just referred us back to
16 the judgement, but that is the question I put to you,
17 because I want all the light to be made on this
18 particular issue.
19 MR. MORAN: Yes, Your Honour. In my view,
20 the word "national" and "nationality" in the definition
21 of protected persons in Article 4 of the convention is
22 different from the way -- has a different meaning from
23 the loose word "nationality" that is used in the
24 vernacular in the former Yugoslavia.
25 In the former Yugoslavia, "nationality"
1 refers to ethnicity in normal conversation, and
2 "nationality" in the convention is an a legal term of
3 art having to do with citizenship in a state, I think.
4 I would be shocked if it would mean anything else. And
5 given that, the fact that these people were Serbs or
6 Croatians or Irish is of no moment under my view of the
7 definition of protected persons. The key question is
8 whether or not they were nationals of
9 Bosnia-Herzegovina regardless of their ethnic
10 background, their religion, their last name, or any of
11 those factors, applying the definitions in the
13 Have I answered your question to your
14 satisfaction, Your Honour?
15 JUDGE BENNOUNA: [Interpretation] You have,
16 Mr. Moran, and I thank you very much, because that is
17 also what I believe. I've looked at what has been done
18 by this Tribunal and what I can see is that indeed [In
19 English] [Previous translation continues] ...... refers
20 to ethnicity in normal conversation.
21 [Interpretation] Because indeed in current
22 conversation, you have people introducing themselves
23 and saying, "I am from Muslim nationality," or, "I am
24 from Serb or Croat nationality." They don't say they
25 are from an ethnic background. They don't use the name
1 of a state as such, they just say, "I am from a Muslim
2 nationality." And it may strike us as being strange
3 because to be a Muslim is first and foremost to be of
4 the Muslim faith. And that is indeed the way the
5 people talk in the former Yugoslavia, and, of course,
6 the Appeals Chamber will have to look into that and to
7 draw a certain number of conclusions as to what it
8 means as to how the convention should be interpreted.
9 Thank you very much.
10 MR. MORAN: Your Honour, as a bit of a
11 follow-up, as I recall, there were occasions in the
12 transcript in cross-examination where witnesses who
13 said, "What's your nationality?" "I am Serb." On
14 cross-examination was a follow-up meaning -- where it
15 was it was cleared up. "You mean your ethnicity was
16 Serbian?" I can't recall any specific examples but I
17 recall that other occurring, just out of memory.
18 JUDGE BENNOUNA: [Interpretation] Thank you,
19 Mr. Moran.
20 MR. MORAN: Yes, Your Honour.
21 Counts 1 and 2, Mr. Gotovac. You have a
22 judicial confession by a person who said, "I did it
23 with three other people or two other people, and
24 neither one of them is Hazim Delic."
25 JUDGE HUNT: We don't really want to go
1 through what you said in chief.
2 MR. MORAN: Yes, Your Honour. And that is
3 the best evidence.
4 On Counts 46 and 47, the Prosecution says
5 Mr. Delic was convicted for acts he personally
6 committed. That's true. No question about it.
7 However, the Prosecution is asking this Appeals Chamber
8 to reverse the acquittals of Mr. Delic as a superior
9 under a command responsibility theory, and when you
10 look at the next couple of paragraphs of Mr. Mucic, I
11 believe it's paragraph 1123, it talks about he violated
12 the law based on the amount of food, toilet facilities,
13 things like that. And if the Prosecution wants to hold
14 Mr. Delic liable on a command responsibility theory for
15 those things, I think I ought to be able to say that
16 there is a defence of necessity there.
17 Unless there are some further questions from
18 the bench.
19 JUDGE HUNT: No. Thank you very much indeed,
20 Mr. Moran.
21 MR. MORAN: Thank you, Your Honour.
22 MR. FARRELL: Excuse me, Judge Hunt. I'm
23 sorry. Just for clarification. There might have been
24 a bit of a misunderstanding. When I was referring to
25 the photo exhibit, where I indicated that there
1 appeared to be some difficulty in its introduction,
2 that was in relation not with respect to the photo
3 exhibit which the Defence put in vis-a-vis Ms. Cecez.
4 I was referring to, just so we're clear, the photo
5 exhibit put in with respect to Ms. Antic, which was
6 Exhibit 90 by the Prosecution. That's all.
7 MR. MORAN: And they're the same exhibit,
8 Your Honour. The same photo array.
9 JUDGE HUNT: We turn now to Mr. Landzo's
10 individual grounds.
11 Ms. Sinatra.
12 MS. SINATRA: Yes. Good afternoon, Your
13 Honours. I have asked the assistance of Ms. Murphy
14 here. I decided I'd love to take advantage of some of
15 this high technology that we have in this courtroom by
16 using the ELMO. May it please Your Honours.
17 Although the Prosecutor and the founders of
18 this Tribunal have declared that the way to peace and
19 reconciliation in the former Yugoslavia is to allow the
20 victims to come here and be heard, to be vindicated,
21 and to relieve their pain, it may be a result of these
22 proceedings that the victims go back to the former
23 Yugoslavia with less hatred and less pain, but the real
24 concern of all of us being here today is to mete out
25 justice. This is not merely about victims' rights;
1 this is about the creation of a body of guarantees of
2 justice and fairness for each individual that appears
3 before this Tribunal.
4 This is a fragile body of law and it's
5 unsettled, but we do have fundamental principles of law
6 from which to draw. There's been a lot of discussion
7 in the last few days whether it's called rule of law,
8 rule of the land, or due process of law. Whatever you
9 call it, Esad Landzo is only asking for these minimum
11 And justice must be perceived to be
12 even-handed. It must be applied to all three sides in
13 the Yugoslavian tragedy, with fair impartiality, and
14 that's what brings me to the first issue of selective
16 The reason I'm here is because the Trial
17 Chamber did not understand the Article 21 argument of
18 Esad Landzo regarding the actions of the Prosecutor.
19 May I have the assistance of the usher,
21 I don't know if the Court would like to see
22 it again. I think it was attached to our brief, which
23 is the statement by the Prosecutor describing why --
24 well, I'm going to go ahead and go to: The Trial
25 Chamber stated -- the reason it misunderstood was the
1 Trial Chamber stated -- and if you'll turn on the
2 computer monitor instead of referring to the paragraph
3 in the judgement, it will be put right before you --
4 that it argued that Mr. Landzo is arguing that he is
5 one of thousands of individuals who might be prosecuted
6 for similar offences in the former Yugoslavia and this
7 places him in an unfair position of being made --
8 THE INTERPRETER: Could the counsel please
9 slow down when reading.
10 MS. SINATRA: Of course. Sorry.
11 -- made into a kind of representative of all
12 these persons who are not subject to the proceedings
13 before the International Tribunal.
14 This is not at all what we were arguing
15 about. We're not saying that he represents a class of
16 persons or individuals who might be prosecuted for
17 similar offences.
18 The issue that Mr. Landzo was complaining
19 about is that there were 16 people of Serbian
20 ethnicity, as Judge Bennouna has pointed out, who were
21 already subjects of indictment before this Tribunal,
22 who had already been investigated by the OTP, and some
23 of whom were already in custody, and their indictments
24 were dismissed.
25 You have the Prosecutor's statement before
1 you. Former Prosecutor, Louise Arbour, discussed that
2 she dismissed these indictments for three reasons. One
3 economic, and other one was that -- well, two reasons
4 -- that the Serbians had no military rank, were merely
5 guards and privates carrying out orders, and she wanted
6 to preserve the resources of the ICTY for those accused
7 with command responsibility.
8 Now, this has merit of candour and makes good
9 sense, but since the charging decision is so critical,
10 it must be objectively applied. And if for the moment
11 it appears that it's not applied even-handedly, then
12 we're going to have problems. If it appears that
13 there's money and time enough to prosecute a Bosnian
14 guard with no military rank, but there isn't time and
15 money enough to prosecute Serbian guards in the same
16 position, then we're going to have a lot of problems
17 and the people will not respect this Tribunal.
18 You have to be sensitive that in this arena
19 appearances are just as important as substance. Unless
20 the public believes that even-handed justice is done
21 and that both sides are being even-handedly punished,
22 then we'll never substitute law for blood feuds.
23 At this time, these are already ICTY
24 documents, but I'd like to put before -- with the help
25 of the usher, please. These are the motions from the
1 Prosecutor to dismiss the indictments against the 16
2 Serbians, and also the orders signed on their
3 dismissals. And I'd like to add that the Prosecutor
4 has no objections. These are ICTY documents, available
5 to everybody.
6 And when I say "Serbs" or "Bosnians," I'm
7 talking about Bosnian Muslims from Bosnia-Herzegovina,
8 and the people that had their indictments dismissed
9 were Serbs from SFRY, coming from FRY.
10 I'd like to also add that there was no person
11 who participated in the armed conflict in the former
12 Yugoslavia who was on a lower rung of the chain of
13 command structure than Esad Landzo. He was an
14 18-year-old, 19-year-old boy who was brought into this
15 conflict -- he had no military training -- he was
16 brought into this conflict because his family, his
17 home, and his very culture were under attack. And I
18 mean literally under attack. Konjic was shelled by the
19 Bosnian Serb forces for over a thousand days. That's
20 over three years.
21 The ICTR has an agreement with the Rwandan
22 government that those without command responsibility
23 would be prosecuted in the Rwandan courts. The
24 jurisdiction for Esad Landzo's case should have been in
25 the Bosnian court.
1 Now, the maintenance of the conviction
2 against Esad Landzo clearly violates his rights under
3 Article 21 of this Statute and the moral integrity of
4 these proceedings. Article 21(1) guarantees that all
5 persons shall be created equal -- not created equal.
6 That's the Bible. All persons shall be equal before
7 the International Tribunal.
8 Now, at this point I don't know what the
9 remedy is. At the Trial Chamber level, the remedy
10 would have been to dismiss this case and send it back
11 to the Bosnian courts. But here in the Appeals
12 Chamber, Your Honours, I don't know what the remedy is.
13 I suggest that maybe it would be dismissal of the
15 Are there any questions on this issue of
16 selective Prosecution?
17 JUDGE RIAD: Ms. Sinatra, good afternoon.
18 MS. SINATRA: Good afternoon.
19 JUDGE RIAD: You call it selective
20 prosecution. Of course, to be selective, there has to
21 be the real intention of selection. Was there a
22 real -- and you refer -- you seem to suggest that Esad
23 Landzo was the representative of the Muslim community,
24 apparently, but other Muslims have been also indicted.
25 So it's not because -- he was not indicted because he
1 was the representative, don't you think so? He was one
2 of a few.
3 MS. SINATRA: Well --
4 JUDGE RIAD: Were they all representatives,
5 in your opinion?
6 MS. SINATRA: Your Honour, I believe that
7 that is correct, because if you do a percentage
8 analysis over the detention centre, there are only
9 about three Muslim Bosnians in custody right now, and I
10 think they're all in this room. I may be mistaken, but
11 in order to maintain the proceedings against the other
12 Bosnian Muslims in this case, I think they felt it
13 necessary to maintain the conviction against
14 Mr. Landzo, who stands in exactly the same shoes as the
15 16 ethnically Serbian accused who were dismissed.
16 JUDGE RIAD: And the second question: Does
17 he really stand in the same shoes as the other 16?
18 MS. SINATRA: Your Honour, I didn't read all
19 of the indictments of the 16 people. I'm only going by
20 what the Prosecutor represented in her statement and
21 what's represented in the motion by the Prosecutor,
22 that she was dismissing these because they have no rank
23 and no command responsibility, and she wants to proceed
24 in the other cases where there is more command
25 responsibility and best use the Tribunal's resources in
1 that direction.
2 JUDGE RIAD: When I say they stand in the
3 same shoes, were they at large or were they in the
4 prison? Were they already arrested? Were they -- they
5 were indicted, but were they already before the Court,
6 the Tribunal here?
7 MS. SINATRA: Your Honour, I'm going to defer
8 to you at this point, because I believe you signed the
9 order dismissing the indictments, and since you signed
10 the order, you would probably be best to tell us who
11 was in custody and who wasn't. At this point I believe
12 there were a few in custody, but by far most of them
13 were at large.
14 JUDGE RIAD: Good. Those who were in custody
15 were not yet before the Trial Chamber. And was
16 Mr. Landzo before the Trial Chamber? Was his trial
17 already on?
18 MS. SINATRA: Yes, Your Honour. His trial
19 began in March of 1997, and I believe the Prosecutor
20 dismissed these indictments in the spring of 1998.
21 JUDGE HUNT: It was the 8th of May, 1998 when
22 your client's trial was well under way.
23 MS. SINATRA: Yes, that's correct.
24 JUDGE RIAD: So the trial was well under way.
25 MS. SINATRA: It was about a year under way
1 at least.
2 JUDGE RIAD: So do you still maintain they
3 were in the same shoes, exactly on very equal
5 MS. SINATRA: Well, if you're talking about
6 economic resources of the Tribunal, then they weren't
7 on the same economic -- I mean the same shoes, because
8 Mr. Landzo had already had a year's worth of
9 Prosecution evidence put on against him. But if you
10 talk about their rank and their position and before
11 they were brought before this Tribunal, there was
12 nobody who was lower on the -- in the structure of the
13 chain of command than Esad Landzo. And I'm sure that
14 of these 16, most of them probably were on the higher
16 JUDGE RIAD: Let us assume that, as you say,
17 they were all of rather modest condition as far as
18 command responsibility is concerned, or even -- the
19 crimes were on the same level. Do you still consider
20 that, the fact that the Prosecutor decided not to
21 prosecute this level of presumed war criminals? Would
22 that -- do you think this should also apply to those
23 who were already before the Court, where the trial was
24 going -- was on for some time, or should it apply only
25 to the future?
1 MS. SINATRA: Your Honour, I believe if this
2 Tribunal is going to be perceived as being even-handed,
3 then it should apply retroactively as well as forward.
4 JUDGE RIAD: And if it was retroactive,
5 should it apply also to those who have been already
7 MS. SINATRA: Well, at that point I don't
8 think there were very many, only three or four, that
9 had been sentenced.
10 JUDGE RIAD: I mean, how retroactive would
11 you like it to be?
12 MS. SINATRA: This is in the infancy of the
13 law of the Tribunal, and in 1998 -- retroactively, yes,
14 I think if there's somebody who has absolutely no
15 command responsibility -- and that would exclude
16 Aleksovski, that would exclude Blaskic, that would
17 exclude Tadic -- then I think that we're not looking at
18 a gigantic effect on the back convictions here in the
20 JUDGE RIAD: Don't you think a new policy
21 should be applied from the dates announced, and you
22 say, "There is a change of policy. Here it is," for
23 those who are not yet before the Trial Chamber?
24 MS. SINATRA: I understand your argument,
25 Your Honour -- not your argument, but your idea.
1 JUDGE RIAD: I'm asking you. You are the
2 one --
3 MS. SINATRA: I'm an advocate for Esad
4 Landzo, and as an advocate for him, who was in an equal
5 position with the 16 persons who had gotten their
6 indictments dismissed, I think he should have equally
7 had his indictment dismissed the same way and for the
8 same reasons.
9 JUDGE RIAD: You are an advocate, but you are
10 also telling us how the Tribunal should function --
11 MS. SINATRA: I'm really just talking --
12 JUDGE RIAD: -- for the sake of justice, so
13 this is why I'm asking you; otherwise I would not ask
14 you. Do you think this policy would be retroactive and
15 then we should change completely the policy, not only
16 for the future, but retroactive to the beginning of the
18 MS. SINATRA: Well, I believe that the
19 Bosnian court system and law system is appropriately
20 set up now to function; to try -- indict, try, and
21 serve justice on the people who would fit into that
23 JUDGE RIAD: What about the Statute which
24 does not require any standard of calibre of presumed
25 criminals or crimes?
1 MS. SINATRA: I'm not challenging the
2 jurisdiction of the Tribunal. The Tribunal has
3 jurisdiction over this type of case. All I'm saying is
4 that for the perception of even-handedness, for the
5 ideals set out in Article 21 of the Statute of the
6 Tribunal, that all defendants are to be treated
7 equally, and as such, Mr. Landzo was treated unequally
8 in relation to the 16 Serbians who had their
9 indictments dismissed.
10 I don't know what the remedy is. That's for
11 you to decide. There is no remedy. But I believe his
12 rights under Article 21(1) were violated.
13 JUDGE RIAD: In case they are exactly on
14 equal footing.
15 MS. SINATRA: Yes, Your Honour.
16 JUDGE RIAD: Thank you very much.
17 MS. SINATRA: Thank you.
18 JUDGE HUNT: May we have this straight? None
19 of the other 17 were actually facing trial or
20 undergoing trial at the time, were they?
21 MS. SINATRA: That's correct, Your Honour.
22 JUDGE HUNT: And have you read the sentence
23 at the foot of the first page of this press statement
24 that you've issued, that the Prosecutor said she was to
25 concentrate not only on persons having higher levels of
1 responsibility, but also upon those who have been
2 personally responsible for the exceptionally brutal or
3 otherwise extremely serious offences? You don't think
4 that's a matter which could have been taken into
5 account also.
6 MS. SINATRA: I believe it must have been
7 taken into account in consideration with the Serbs, who
8 were charged with more murders and more violations of
9 cruel treatment and torture than Mr. Landzo was charged
11 JUDGE HUNT: But who hadn't yet started their
13 MS. SINATRA: That's correct.
14 JUDGE HUNT: Had you finished? I'm sorry.
15 MS. SINATRA: Yes, I've finished with that
17 JUDGE HUNT: Thank you very much.
18 MS. SINATRA: If you don't mind, I'll go to
19 diminished --
20 JUDGE HUNT: Well, may we just take it one
21 ground at a time.
22 MS. SINATRA: Okay. Sure.
23 JUDGE HUNT: Mr. Staker.
24 MR. STAKER: May it please the Chamber. The
25 argument is being put that Mr. Landzo was a very
1 low-level perpetrator. Now, as I understand the
2 argument, it's not being put that it could be a ground
3 of appeal, following a trial and conviction, that the
4 perpetrator wasn't a sufficiently high-level
5 perpetrator. We saw on the ELMO this document being
6 put about the Tribunal being established to try only
7 the most serious perpetrators, but I understand the
8 argument is only being put on the basis of
9 discrimination, that there's no argument being put that
10 a ground of appeal would be that the perpetrator is not
11 sufficiently serious.
12 MS. SINATRA: That is correct, Mr. Staker.
13 MR. STAKER: I thank my friend.
14 If that's the case, though, it must be
15 assumed that the Tribunal has the jurisdiction, and
16 therefore the ability, to try perpetrators at all
17 levels in the command, and I don't think there's ever
18 been a suggestion that if there are sufficient reasons
19 justifying it - and the discretion is one essentially
20 within the Prosecutor to determine what indictments are
21 presented for confirmation - that low-level perpetrators
22 can [sic] be tried. And clearly it would be impossible for
23 every alleged crime in the former Yugoslavia to be
24 tried by this Tribunal, and that therefore there needs
25 to be some selectivity and that prosecutions in this
1 Tribunal will always be selective in some sense. There
2 can be no objection to selectivity as such. The issue
3 here is selectivity on an impermissible basis.
4 Ms. Sinatra has put that Mr. Landzo was
5 tried, while others who were identically situated were
6 not tried. Now, as we have put in our response brief,
7 and as has come out in argument just earlier, there can
8 be no basis for the argument that Mr. Landzo was
9 identically situated with those against whom the
10 indictments were withdrawn, the simple reason being
11 that he was at mid-trial, and it's a very different
12 thing to withdraw an indictment when someone's already
13 mid-trial to withdrawing an indictment against someone
14 before trial has even commenced.
15 JUDGE HUNT: Can you just help me, though, on
16 one particular problem. Ms. Sinatra has gone beyond
17 the 14 to which the Prosecutor has referred, and she
18 says there were 16, and I assume that the other two
19 were in custody but hadn't yet faced trial. It's
20 anything but clear to me, at the moment, anyway.
21 MR. STAKER: That is something that it might
22 be possible to clarify after the next break. Certainly
23 I don't think there's any suggestion that trials had
24 commenced against any of the --
25 JUDGE HUNT: No. She has agreed with that.
1 But she refers to the figure of 16. The previous
2 Prosecutor talks about 14 and asserts that none of them
3 had yet been arrested, which puts them on a completely
4 different basis, I would have thought, with all due
5 respect. But if there were two that were in custody
6 who were also released with their -- the charges
7 against him withdrawn, I think we should know.
8 MR. STAKER: Your Honour, I will attempt to
9 clarify that, although I should specify that it would
10 still be our submission that there's a difference
11 between a person who's been arrested and whose trial
12 has not yet commenced and a person who's at trial.
13 JUDGE HUNT: I understand that completely,
14 but as I understand Ms. Sinatra's submissions, there is
15 somebody, or at least two people, somewhere in between
16 who were actually in custody but whose trial hadn't
18 MR. STAKER: I will endeavour to clarify
19 that, Your Honour.
20 JUDGE HUNT: Thank you.
21 JUDGE RIAD: I think, if I remember rightly,
22 they were in custody.
23 MR. STAKER: Thank you, Your Honour.
24 JUDGE RIAD: I have to check.
25 MR. STAKER: Thank you.
1 In any event, as we say, even if the --
2 JUDGE HUNT: I think the French translators
3 are having trouble with you, probably with your speed.
4 MR. STAKER: My sincerest apologies to the
5 translators. I will endeavour to be slow.
6 Even if the legal principles are as put by
7 Ms. Sinatra, we submit that it's not the case that
8 Mr. Landzo was identically situated to those against
9 whom the indictment was withdrawn. But I would also
10 like to address the question of the relevant legal
12 I come back to a point that I made earlier
13 today. In the appeal brief that was filed on behalf of
14 Mr. Landzo, reference is made to national law, and
15 again it's a case where reference has been made to the
16 national law of only a single jurisdiction. In this
17 case it's that of the United States of America.
18 As an aside, I would notice that it is the
19 practice in this Tribunal, and the Prosecution's
20 understanding, I believe, is that Rule 111 in fact
21 requires, that copies of all authorities relied upon be
22 filed with the appeal brief, and we note that that
23 appeal brief filed on behalf of Mr. Landzo did in fact
24 contain a copy of the Pinochet decision, but not of any
25 of the United States authorities that were relied upon,
1 and copies of these cases were subsequently provided in
2 the book of authorities for the Prosecution's response
4 It's our submission that if the legal
5 principles set out in those cases were taken as an
6 adequate reflection or as an accurate reflection of the
7 legal principles applying in this Tribunal -- and we
8 don't concede that that's necessarily the case -- that
9 they don't in fact support the argument being put here
10 at all.
11 I would refer to the case of United
12 States versus Armstrong. That's referred to on page 15
13 of the Landzo appeal brief. And the case itself is
14 reproduced, as I said, in the Prosecution's book of
15 authorities. The relevant page is registry page number
16 A2757, which sets out the principles.
17 Briefly stated, it's said there that:
18 "The Attorney General and the United States
19 Attorneys, which means the Prosecutors in the United
20 States system, "retain a broad discretion to enforce the
21 Nation's criminal laws. As a result, the presumption
22 of regularity supports their prosecutorial discretion [sic],
23 and, in the absence of clear evidence to the contrary,
24 courts presume that they have properly discharged their
25 official duties."
1 There then follows the statement which I
2 think is the one relied upon by my colleagues for
3 Mr. Landzo, which says that:
4 "The decision whether to prosecute may not
5 be based on an unjustifiable standard, such as race,
6 religion, or arbitrary classification."
7 The case then goes on to say that:
8 "In order to dispel the presumption that a
9 Prosecutor has not violated equal protection, a
10 criminal defendant must present clear evidence to the
11 contrary," and it adds that "The claimant must show [sic]
12 that the federal prosecutorial policy had a
13 discriminatory effect and that it was motivated by a
14 discriminatory purpose."
15 Then another case perhaps of relevance here
16 as well is Oyler versus Boles, another case relied on
17 in the appellant's brief, at page 13 of the brief. The
18 relevant page is reproduced in the Prosecution book of
19 authorities at registry page A5930 [sic]. And there it is
21 "Moreover, the conscious exercise of some
22 selectivity in enforcement is not in itself a federal
23 constitutional violation." Even though the
24 statistics in this case might imply
25 a policy of selective enforcement, it was not
1 stated that the selection was deliberately based upon
2 an unjustifiable standard such as race, religion, or
3 arbitrary classification".
4 Then in United States versus Parham -- this
5 is not an United States Supreme Court decision, it's a
6 Federal Circuit Court of Appeals reproduced at Registry
7 page A2787 -- the Court of Appeal said that where a
8 defendant cannot show anyone in a similar situation who
9 was not prosecuted, he has not met the threshold point
10 of showing that there's been selectivity in
12 So if these principles are applied to the
13 circumstances of this case, what's the result? As I've
14 said, the position of Mr. Landzo was not identical to
15 those against whom indictments were withdrawn, that
16 whatever statistics might indicate, unless clear
17 evidence is presented by Mr. Landzo that this was
18 motivated by a discriminatory purpose, the standard set
19 out in the United States cases is not met.
20 Now apart from the argument based upon the
21 withdrawal of the indictment against some accused, and
22 as we say their position was not identical, the Landzo
23 appeal brief contains a number of factual assertions.
24 I refer to page 17 of that brief where it is said:
25 "In order to give the appearance of
1 even-handedness, the Prosecutor had to scour the
2 countryside to find allegations of war crimes against
3 those of all ethnic backgrounds."
4 Now, if it's suggested that the Prosecution
5 was scouring the countryside with a discriminatory
6 purpose, I must say that it's something the Prosecution
7 certainly has never conceded or admitted. The
8 appellant pointed to no finding of the Trial Chamber to
9 that effect, and I submit there's no basis for the
10 making of that kind of accusation. I assume it's not
11 an accusation made against the Prosecution on the basis
12 of any evidence, but that this is merely an inference
13 that's sought to be drawn from the withdrawal of
14 certain prosecutions.
15 JUDGE HUNT: Surely, Mr. Staker, the
16 proposition could only be made good if you looked at
17 all the indictments that have been filed, because it's
18 no part of the Prosecution's duties, unfortunately, to
19 be able to arrest people. So the Prosecution has
20 little to say in who comes to the Court to be tried.
21 That depends upon who's picked up or who surrenders.
22 So the issue would have to be determined in relation to
23 the indictments that were filed. And there's no
24 suggestion that there was such a scouring around of
25 people against whom indictments could be filed.
1 MR. STAKER: Yes. And in any event,
2 indictments themselves, the decision as to against whom
3 indictments will be filed can be based on various
4 perfectly legitimate considerations. Apart from the
5 level in the hierarchy of the perpetrator or alleged
6 perpetrator or indeed even the gravity of the crimes
7 that were committed, it may include matters such as
8 where the particular perpetrator fits in in relation to
9 others who have been indicted. It may be that a
10 low-level perpetrator provides the crime base for an
11 allegation of superior responsibility against a
12 higher-level perpetrator so that it would be necessary
13 to bring evidence of the crimes committed by that
14 person in order to establish the superior
15 responsibility of another. The likelihood of an arrest
16 being effected in the future may be a legitimate
17 consideration in determining who will be indicted.
18 And as I've said, these United States cases,
19 though they support the proposition that a mere
20 comparison of statistics is not sufficient to establish
21 that there's a discriminatory purpose and that there
22 has to be clear evidence of the actual motivation based
23 on discrimination not a mere analysis of the relative
24 numbers of those prosecuted.
25 In fact, it would be our submission that what
1 Ms. Sinatra really seems to suggest is that the
2 Prosecution should be doing precisely what she says it
3 can't, namely that where indictments are presented on
4 the basis of what appear to be legitimate criteria but
5 then there's an imbalance in the different numbers from
6 different groups being indicted, that regardless of any
7 merits, the Prosecution should then seek to find a few
8 indictees to make up the balance to give an overall
9 impression of even-handedness, and we would submit that
10 that would be a greater injustice than what's being
11 complained of here.
12 Our submission --
13 JUDGE RIAD: With regard to this point, and
14 perhaps you can answer this question, the fact that, as
15 Ms. Sinatra mentioned, there are only three indicted
16 Muslims, is it due to the fact that you only indicted
17 three or only three were arrested?
18 MR. STAKER: That's another matter, Your
19 Honour, on which I would have to seek clarification.
20 Perhaps I could answer that after the break.
21 JUDGE RIAD: Thank you.
22 MR. STAKER: Unless there are further
23 questions, I have no further submissions in relation to
24 that ground of appeal.
25 JUDGE HUNT: Thank you very much.
1 JUDGE BENNOUNA: [Interpretation] For my part,
2 I have a question that I would like to put to the
3 Prosecutor, but maybe that Ms. Sinatra could also
4 listen to it and maybe try to answer it.
5 What consequences do you draw from the fact
6 that we find ourselves before an International
7 Tribunal, the International Criminal Tribunal for the
8 Former Yugoslavia, which was created in the
9 circumstances that we are all very well aware of,
10 before a Tribunal who does not have exclusive
11 jurisdiction on the different crimes that are of its
12 jurisdiction, i.e., crimes against humanity, war
13 crimes, genocide, among others, this Tribunal that
14 doesn't have exclusive jurisdiction on the crimes
15 committed, and it has a certain number of competencies
16 described within its rationae temporis jurisdiction,
17 crimes committed since 1991 and until the Security
18 Council deems it's necessary to put an end to the
19 Tribunal's function in terms of its rationae temporis
20 jurisdiction. We don't have exclusive jurisdiction but
21 we have primary jurisdiction; i.e., other Tribunals can
22 been called upon to try the people who are prosecuted.
23 Ms. Sinatra was comparing, when she was
24 talking about selective prosecuting, what happens at
25 the national level and what happens at the
1 international level, which is not something that can be
2 compared, in fact.
3 I'm sorry to have to say that, but in these
4 last two days I see many people trying to transpose
5 what happens at a national level to what happens at the
6 international level, and you do this very freely
7 without taking the necessary precautionary measures.
8 What happens internally has nothing to do with what
9 happens internationally, even though a certain number
10 of principles can apply at both levels.
11 So the fact that some indictments have been
12 dismissed as it has been explained to us, the fact that
13 they have been withdrawn, so to speak, does not at all
14 mean that these persons cannot be prosecuted anymore.
15 These individuals can be prosecuted in other countries
16 or, as the Prosecutor Arbour says, if is deemed
17 necessary, the Prosecutor himself can prosecute them at
18 a later stage according to the circumstances which
20 So the principle of nondiscrimination which
21 you have been mentioning does not apply in the same
22 way. This is a power that was granted to the
23 Prosecutor by the founding act of the Tribunal. The
24 Prosecutor has jurisdiction to prosecute individuals of
25 who it thinks that it is necessary that they be
1 prosecuted in view of the evidence that it has in its
2 hand, but that doesn't mean that the Prosecutor has to
3 prosecute all the individuals who find themselves in
4 the similar situation.
5 That is the situation as it stands, and I
6 would like both the Prosecutor's and the Defence's
7 opinion on that fact.
8 Now, trying to say things without taking the
9 necessary precautionary measures when you speak about
10 international law is something that might lead us to
11 more confusion. Even though national jurisprudence and
12 case law can be of use when you use it with all
13 precautionary measures, but do not forget that you are
14 in an international tribunal. This is what I wanted to
16 Is there something that either of would you
17 like to add? I'd be most interested.
18 JUDGE HUNT: Mr. Staker?
19 MR. STAKER: Yes. In response to that
20 question, I think it would be the Prosecution's
21 position that that is certainly an additional
22 consideration that applies in the case of this Tribunal
23 that does not apply in the case of a national
24 jurisdiction. I'm not sure that the Prosecution would
25 want to push that argument to an extreme and say that
1 no matter what, this could never be a consideration
2 here, but I think certainly it's an additional factor.
3 I think perhaps it's unnecessary to consider
4 potential extreme cases in this instance, because, as I
5 say, even if one applied the standards that have been
6 applied in the national jurisdiction relied upon, this
7 case simply doesn't fall within it.
8 JUDGE HUNT: Now, if you wish to reply to
9 Judge Bennouna and also to reply generally,
10 Ms. Sinatra.
11 MS. SINATRA: I will try to reply to both.
12 Judge Bennouna, I believe you were talking
13 about the primacy of the International Tribunal and
14 also when we are trying to come up with standards of
15 law to apply, since right now some of the issues we're
16 dealing with, we're dealing with in a vacuum. We draw
17 from all sources of legal answers that we can come up
18 with, and if they happen to be a course of national
19 law, we're here only to put these thoughts before the
20 Tribunal. It's up to you to decide what standards,
21 what laws you want to apply.
22 There are no cases in international law that
23 I can see dealing with selective prosecution, so we
24 were left solely with national law to draw from.
25 I don't know if that answered your question.
1 I apologise for just citing United States law, but it
2 was the one most available to me and the one I'm most
3 familiar with when I'm in Texas or California, because
4 I don't have access to the library here.
5 JUDGE BENNOUNA: [Interpretation] No, but
6 beyond that you have to look at what the Statute says
7 and you have to look at all the articles, all the
8 papers that have been written on the Tribunal and its
10 When we speak of primacy, when in fact the
11 future International Criminal Court will have a
12 concurrent jurisdiction and will not have a primary
13 jurisdiction or prevailing jurisdiction, what we're
14 looking at is what are the competencies of the
15 Prosecutor basically. You can't have the Prosecutor
16 being expected to draw indictments for all the people
17 who would be susceptible to be brought before the
18 Tribunal. He has to make a choice. This choice is
19 made by taking into account a certain number of
20 considerations which are those of the Prosecutor.
21 But it is well understood that it doesn't
22 mean that these individuals have been declared innocent
23 by the Prosecutor by the simple fact that an indictment
24 has not been brought against them. The individuals
25 that are not prosecuted by the Prosecutor but who are
1 presumed to have at least committed a certain number of
2 serious offences can be prosecuted, as you well know,
3 before any Tribunal in the world, and that is the
4 principle of universal jurisdiction. That is the
5 situation that we find ourselves in.
6 So you should bear this this mind when you
7 try to speak of selective prosecution, and which brings
8 you to say that a person who has been tried and
9 convicted should be released because the same standard
10 that was applied to other people has not been applied
11 to her. And you also refer to Article 21, an article
12 that, let me remind you, deals with the way people
13 should be tried, people who are accused individuals who
14 are brought before us by the Prosecutor.
15 MS. SINATRA: And it is my submission that
16 although Mr. Staker argued that they were not in
17 identical positions as Mr. Landzo, whose actual trial
18 had commenced, I believe that the rule of law would
19 embrace that trial. The trial process begins upon
20 indictment, and if the trial process begins at
21 indictment, then they were in the same shoes.
22 And that's really all I have to add as far
23 as -- well, also Mr. Landzo does agree with the
24 Prosecution's position on US versus Parham, I believe
25 you cited, which states the standard that we were
1 looking for anyway.
2 JUDGE RIAD: Ms. Sinatra, granting that they
3 are in the same shoes, just to following your
4 reasoning, don't you think there should also be an
5 intention of discrimination, or would it be
6 self-evident that if they're in the same shoes,
7 discrimination is established?
8 MS. SINATRA: Your Honour, I don't believe
9 that there was any discrimination that had been
10 established, but they were in the same shoes and they
11 should have had equal treatment under Article 21.
12 As far as what Judge Bennouna was just
13 talking about, I believe he was talking about
14 pre-indictment. I'm talking about post-indictment
15 equality. And I'm not trying to limit the Prosecutor's
16 right to indict whoever they have enough investigation
17 against, but I'm talking about post-indictment
18 treatment of the accused before this Tribunal.
19 JUDGE RIAD: Let us -- there was also one of
20 the reasons, I think, of the Prosecutor to, let's say,
21 withdraw some indictments, was the economic factor
22 which was said, but as far as having started the trial
23 for half a year almost, don't you think the economic
24 factor here is not equal? You are speaking of exactly
25 equal conditions.
1 MS. SINATRA: I didn't know that we can
2 equate economy in dollars or guilder to justice before
3 this Tribunal.
4 JUDGE RIAD: That is apparently what the
5 Prosecutor had mentioned, that economically it would be
6 better for the Tribunal to withdraw some indictments.
7 But in that case, the trial was already -- economically
8 speaking, it would not be on the same level if the
9 policy was economic. I'm just commenting on the order
10 or the statement of the Prosecutor.
11 MS. SINATRA: That's exactly what I meant.
12 It's impermissible for the Prosecutor to maintain
13 charges and convictions against one person who stands
14 in the same shoes as others, and especially
15 impermissible to do it for economic reasons.
16 JUDGE RIAD: Thank you very much.
17 JUDGE HUNT: Does that conclude your
18 submissions on your selective prosecution grounds?
19 MS. SINATRA: Yes, Your Honour, it does.
20 JUDGE HUNT: Well, we've got three minutes,
21 if you'd like to say something about diminished
23 I remind everybody that there is no late
24 session today. We will not be sitting from 4.30 to
1 MS. SINATRA: Well, in that case, Your
2 Honour, I would ask the Court's indulgence to allow me
3 to begin the new issue tomorrow.
4 JUDGE HUNT: That seems fair enough.
5 MS. SINATRA: Thank you.
6 JUDGE HUNT: All right. Well, we'll adjourn
7 and resume at 10 in the morning.
8 --- Whereupon the hearing adjourned
9 at 3.58 p.m., to be reconvened on
10 Thursday, the 8th day of June, 2000
11 at 10 a.m.