1 Thursday, 12th March, 1998
2 (Motion Hearing) (Open session)
3 --- Upon commencing at 10.10 a.m. (The accused entered court)
4 JUDGE KARIBI-WHYTE: Good morning, ladies
5 and gentlemen. We will assemble again to continue with
6 the address of counsel. I think we now have Mr Olujic
7 to address. I suppose you are now familiar with the
8 pattern. We have already received your submissions in
9 writing, and I think the submissions which the Defence
10 made in reply to the Prosecution's reply, I think, is
11 the last we have had in the submissions we have
13 You did not make any further submissions. We
14 have read the earlier one and I think it satisfies, to
15 some extent, the issues which perhaps you were trying
16 to raise. Of course, I think we might -- the question
17 of provisional release is not part of the issue in a
18 no-case submission or in an opening speech.
19 Provisional release could come on its own -- it has its
20 own rules governing it and they accommodate it.
21 Finally, too, the address we expect here, and
22 from the pattern which has gone before, you are now
23 required to make your own -- if there is any -- that
24 you rely on the law to determine whether a prima facie
25 case has been made against your client and, if you
1 agree that it has not been made, or if we hold that it
2 has been made, then we will proceed forward to call
3 upon him to make his Defence.
4 I think those are the parameters within which
5 addresses of this nature could be made. The Trial
6 Chamber does not expect statements outside this. It
7 also does not expect criticisms on the facts, because
8 the implication is that you have admitted the facts as
9 they are, and granted these other facts, no prima facie
10 case has been made. So, any statements outside this
11 will not be acceptable for the purposes of this
12 submission. You might have other areas to make
13 somewhere else, but not in the Trial Chamber. The
14 Trial Chamber is governed by its own Rules and its
15 Statute. Thank you very much. We will hear you.
16 I am sorry, I have not even asked for
17 appearances. Could we have appearances now?
18 MR NIEMANN: If your Honours please, my
19 name is Niemann and I appear with my colleagues
20 Ms McHenry, Mr Turone, Mr Dixon and Mr Khan for the
22 JUDGE KARIBI-WHYTE: Thank you very much.
23 May I have the appearances, please, for the Defence?
24 MS RESIDOVIC: Good morning, your Honours.
25 I am Edina Residovic, attorney from Sarajevo, appearing
1 on behalf of Mr Delalic, along with my colleagues,
2 Eugene O'Sullivan, professor from Canada, and Ekrem
3 Galijatovic, attorney from Sarajevo.
4 MR OLUJIC: Good morning, your Honours.
5 I am Zeljko Olujic, attorney from Zagreb, Croatia,
6 along with my colleague, Mr Michael Greaves, attorney
7 from the United Kingdom.
8 May I add, your Honours, appreciating your
9 goodwill, could you allow my client to leave the
10 courtroom today at 11.30 to be able to attend a Holy
11 Mass that will be held in the detention centre in
13 MR KARABDIC: Good morning, your Honours.
14 I am Salih Karabdic, attorney from Sarajevo appearing
15 on behalf of Mr Hazim Delic, together with Mr Tom
16 Moran, attorney from Houston, Texas.
17 MR ACKERMAN: Good morning, your Honours.
18 My name is John Ackerman and I appear here today on
19 behalf of Mr Esad Landzo, along with Ms Cynthia
21 I would like just to take a moment to answer
22 a question Judge Jan asked me yesterday about the
23 adherence of Rwanda to the Geneva Conventions. I told
24 His Honour that I would bring him that answer. Rwanda
25 signed the 49 Conventions on 5 May 1964, adhered to
1 Protocol 1 on 19 November 1984, and also to Protocol 2
2 on that same date. Also, there is some paragraph of
3 Protocol 2, called D90, that they have also adopted in
4 some way. So they are fully subscribed to all of the
5 Geneva Conventions and all the Protocols, unlike your
6 country and mine, Judge Jan.
7 JUDGE JAN: Portugal, too, has not signed in
8 many countries.
9 JUDGE KARIBI-WHYTE: Thank you very much,
10 Mr Ackerman. I refer to the application by Mr Olujic
11 and I think it is granted. After 11.30, I think we are
12 adjourning at 11.30. Mr Mucic can go and attend the
13 mass at that time. It is not a problem.
14 MR OLUJIC: Thank you, your Honours.
15 JUDGE KARIBI-WHYTE: You may continue to
16 your address.
17 MR OLUJIC: Good morning, once again, your
18 Honours. I think that I have understood the guidelines
19 that you gave regarding my statement today, and I thank
20 you for them. I have also understood that my position
21 is such that, in this stage of the proceedings, in view
22 of the fact that the Defence considers that a prima
23 facie case has not been sufficiently made, and that
24 conditions exist for dismissing the indictment, I must,
25 nevertheless, and I have that possibility according to
1 the Rules of Procedure of this Tribunal, to respond to
2 the response made by the Prosecutor regarding my client
3 in writing.
4 Of course, I will not resort to habeas corpus
5 acta, as your Honour Judge Karibi-Whyte has drawn my
6 attention to, but this is our request, which the
7 Tribunal will certainly consider in the course of these
9 What I consider to be important in response
10 to the Prosecutor's submission is, in the first place,
11 the question of the jurisdiction of this Tribunal,
12 then, secondly, I should like to refer to the question
13 of conflict; that is, whether this was an international
14 or an internal conflict; secondly, the question of
15 nationality as a legally relevant and decisive issue;
16 as well as the positions of the Prosecutor regarding
17 superior authority or command responsibility for which
18 my client is charged.
19 May I point out that, should I omit anything,
20 would you please bear in mind that everything that is
21 said by the Prosecutor at the expense of my client in
22 the written submission is not accepted by us.
23 JUDGE KARIBI-WHYTE: You appear to be going
24 over the same grounds which you have submitted to us
25 already. These are the same issues you raised in your
1 first submission.
2 MR OLUJIC: Your Honours, I will not repeat
3 what I said in my written submission, because I know
4 that you have it before you, and I am quite confident
5 that you have given it due attention and will rule,
6 taking it into account. But I must refer to what the
7 Prosecutor stated in their reply and which we feel we
8 cannot only elucidate through our arguments but also be
9 of assistance to the Trial Chamber to make a fair and
10 just ruling.
11 What I wish to say, first of all, is that the
12 Prosecutor, in her reply, says that the question of the
13 jurisdiction of this Tribunal cannot be raised. It is
14 our claim that such a question can be made. Because
15 what if this Tribunal accepts our motion and adopts our
16 objection regarding jurisdiction, then the beneficio
17 cohesionis will certainly apply to Mr Mucic as well.
18 Furthermore, we did not state in our
19 submission as claimed by the Prosecutor that we limited
20 our remarks to customary law only. In this way, the
21 Prosecutor is omitting to mention a number of laws that
22 I referred to in my submission. Therefore, our
23 allegation that the legal system of the Socialist
24 Federal Republic of Yugoslavia and the Socialist
25 Republic of Bosnia-Herzegovina approved and, in fact,
1 encouraged violations of international law is
2 corroborated in theory by highest ranking theoreticians
3 and text books in military schools. Therefore, the
4 Conventions were nonexistent and unlawful for those
5 persons. Hence, our objection nullum crimen sine lege
7 Similarly, the Prosecutor, in her response,
8 refers to Article 72 of the Rules of Procedure and says
9 that, if a motion is not submitted in time, it means
10 that the defendant has waived his right.
11 The Prosecutor keeps referring to those
12 Rules, and I also say that they cannot be derogated in
13 the interest of the service of justice. I think that
14 the thesis of the Prosecutor that the International Red
15 Cross is the institution that gives meritorious
16 interpretations of Conventions is not correct, but we
17 wish to refer to readings of those Conventions. Why
18 could it not be said that those rebels have to respect
19 provisions in order for us to establish whether they
20 were prisoners of the opposing side? Does not the
21 Prosecution see what actually happened -- that the
22 parties in the conflict, that is, the Federal Republic
23 of Yugoslavia, by force, and contrary to law, according
24 to international war law, motivated the Serbs in
25 Bosnia-Herzegovina to rebel against their own State.
1 We also feel that the positions of the
2 victors in the Second World War cannot be legally
3 relevant, as claimed by the Prosecutor.
4 As for the partisans, referred to by the
5 Prosecutor on page 21, I wish to point out the
6 following: those partisans, as guerillas, enjoyed the
7 support precisely of the United Nations organisation,
8 because they were a recognised party to the war -- both
9 by the former Soviet Union and, later, by Great Britain
10 and the United States and even by the Kingdom of
11 Yugoslavia, which, in 1944, formed a joint government
12 together with Josip Broz Tito.
13 They were therefore an autochthonous force in
14 the territory of Yugoslavia and, as such, were
15 recognised not only by other powers, but even by the
16 Kingdom of Yugoslavia against whom they were also
18 They did not mobilise by force in alien
19 territory and still less in an enemy, internationally
20 recognised State. Therefore, the partisans did not
21 violate the Conventions before the existence of present
22 day international law, so that the opinion of the
23 Prosecution contained in their written submission is
24 ungrounded and unacceptable, because it cannot have any
25 substantive similarities with the position of the Serbs
1 of Bosnia-Herzegovina.
2 Similar, with respect to De Gaulle's forces,
3 they were also working for a recognised free front
4 against a country which was not recognised ever by the
5 United Nations, and it was only on temporarily occupied
6 territory that they were acting. So, we are not
7 interested in De Gaulle's forces that were formed
9 In line with the Conventions, he mobilised
10 his people, either voluntarily or by force. As for
11 Dr Gow's testimony and Dr Calic's testimony, it is my
12 view that we cannot discuss those statements in this
13 stage of the proceedings, because both those statements
14 should be exposed to criticism by this Trial Chamber,
15 and verification, and only then will we be able to take
16 them as being relevant, once they have been admitted by
17 this Trial Chamber.
18 However, I am deeply convinced that this will
19 not be the case in many respects, both with the
20 testimony of Dr Calic and Dr Gow. It is also my view
21 that, in the written response of the Prosecutor,
22 General Kadivic is mentioned without being supported by
23 relevant arguments, because he was precisely the person
24 who committed war crimes in the territory of the former
1 Your Honours, the Prosecution claims that the
2 war in Bosnia-Herzegovina was an interstate conflict,
3 but they have never succeeded in proving that the Serbs
4 in Celebici were a party to the war, or that they were
5 in any way protected persons as participants in the
6 war, either as military men or as civilians. They were
7 not a party to an international conflict. Why?
8 Because they were members -- they belonged to
9 Bosnia-Herzegovina, they were military conscripts of
10 that State, they were nationals of that State. Only as
11 spies or as traitors could have they have participated
12 in an enemy army recognised by the United Nations.
13 Therefore if we were to accept this logic, it would
14 mean that the United Nations recognised
15 Bosnia-Herzegovina, and said, at the same time, that it
16 does not exist as a State, and that its laws must not
17 be respected, that is to say, that the country should
18 not be defended and the like.
19 We believe that this cannot be supported in
20 law or in fact. Also, from page 27 onwards, in its
21 response, the Prosecution does not even try to
22 understand that it is one thing to hit a pregnant woman
23 and another a trained saboteur. We feel the indictment
24 is unacceptable because the weight of the charges has
25 not been established. To make it worse, in a group of
1 soldiers, one may be hit and this may be in
2 self-defence. Therefore, it is not subject to
4 In these proceedings, we cannot establish the
5 legally relevant facts, because we do not know the
6 status of individual persons. It is quite irrelevant
7 that the Statute covers all four points of the Geneva
8 Conventions, but the indictment must both identify and
9 specify the charges it is making.
10 We believe that this is the reason why it is
11 quite unacceptable -- mistreatment implies one thing in
12 the case of civilians and another in the case of
13 prisoners. Again, we see a lack of understanding, that
14 each of the Geneva Conventions has its, so to speak,
15 internal legal and logical structure. The moment when
16 one article describes a person as an unarmed civilian
17 and a third article of that same Convention on the
18 treatment of civilians says they may not be humiliated,
19 the implication is the things that may humiliate
20 civilians, whereas those civilians have to describe in
21 a particular fashion, as is stated in the Convention.
22 Therefore, when any article in the Convention
23 on prisoners describes those prisoners and another
24 article says that they may not be humiliated, then, in
25 view of the description given of those prisoners, this
1 means something quite different.
2 The indictment goes on to -- I am sorry, the
3 Prosecution goes on to say that some of the victims
4 were civilians and others were not. However, in legal
5 terms, we do not know what that means. Why are they
6 listed by name, then? Why are the various acts
7 listed? The perpetrator should be indicated, the
8 victims, when that act was committed and where it was
9 committed. It is not just a question of whether some
10 were civilians or not, nor how many were civilians, but
11 who were the victims and who perpetrated punishable
12 acts against them.
13 I draw the attention of the Trial Chamber
14 that on page 31 of the response it is stated that the
15 Prosecutor claims that, in the region of Konjic,
16 members of the Yugoslavia People's Army were present as
17 an army -- of course, in tempore criminis suspecti.
18 As for nationality or citizenship, the
19 Bosnians could have chosen another nationality and
20 requested the citizenship of another State, but for as
21 long as they remained on the soil of an internationally
22 recognised State, Bosnia and Herzegovina, as its
23 nationals from the period of the Socialist Federal
24 Republic of Yugoslavia, because in that State there was
25 a common nationality of the Republic, they were obliged
1 to respect the laws of Bosnia-Herzegovina, and they
2 could not be conscripted and still less mobilised to an
3 alien army and still less to an enemy army, namely, all
4 the former citizens of the Socialist Republic of
5 Bosnia-Herzegovina had the nationality of
6 Bosnia-Herzegovina, even after 1992.
7 They were not given by mere temporary
8 residents, but, as according to the constitution of the
9 Socialist Federal Republic of Yugoslavia of 1974, there
10 was republican citizenship and, as the Socialist
11 Republic of Bosnia-Herzegovina was a republic, it was
12 clearly defined who was a citizen of that Republic and
13 who was not a citizen of that Republic.
14 This was immediately transferred to the
15 Republic of Bosnia-Herzegovina, which it was before
16 Dayton, and this does not apply to people who were mere
17 residents or passing through that country, and we claim
18 that those who fulfilled conditions for citizenship of
19 the Socialist Republic of Bosnia-Herzegovina complied
20 with those same conditions for nationality of the
21 Republic of Bosnia-Herzegovina.
22 It is also important to note that according
23 to the 1974 constitution, the possibility of dual
24 citizenship had not been envisaged, that is, dual
25 citizenship of two Republics within the Socialist
1 Federal Republic of Yugoslavia. Therefore, the
2 citizens of the Socialist Republic of
3 Bosnia-Herzegovina, which later became the Republic of
4 Bosnia-Herzegovina, were clearly defined.
5 The fact that they could later change that
6 nationality is quite understandable, but there is no
7 evidence presented to this court to show that anybody
8 tried to apply for other nationality, because it was
9 only natural -- it had to take up arms of the force
10 which did not recognise the Republic of
11 Bosnia-Herzegovina -- of a power, rather.
12 On page 33 of the Prosecutor's response,
13 I think that it is unacceptable to implicate here
14 Mr Tadic, because nobody is contesting that the Muslims
15 are protected persons in their own country -- in the
16 case of a military conflict, while they are defending
17 their country and living peacefully in that country.
18 This also applies to the other nationals of the
19 Republic of Bosnia-Herzegovina. Therefore, the
20 aggressor may commit war crimes against them and did
21 so. Thus, officers and soldiers of the JNA did commit
22 war crimes in an aggressive war, whereas the position
23 of Mr Tadic in the aggressor's army is legally quite
24 irrelevant for this case. He could have been a spy or
25 saboteur - that is irrelevant.
1 We claim that all the Serbs in Celebici were
2 citizens of the Republic of Bosnia-Herzegovina, and
3 were therefore obligated under its laws and by
4 violating those laws, they actually renounced the
5 protection that they would enjoy under international
7 Similarly, your Honours, the Prosecutor, in
8 his reply on page 34, talks about the so-called levee
9 en masse. Such an uprising can exist only among
10 nationals defending their own State. They were
11 protected -- that is, the loyal citizens of the
12 Republic of Bosnia-Herzegovina, who often, in a
13 disorganised manner, defended their State, but those
14 persons who worked for the aggressors were not
16 This has nothing to do with international war
17 law or any other kind of international law, because it
18 derogates the State and the very meaning of
19 international law, because international law, as the
20 term itself implies, can exist only among States, and
21 if we say that that State is not entitled to its own
22 army, is not entitled to its own uprising, as claimed
23 by the Prosecutor, that it is not entitled to its own
24 people, then that State has no right to exist, even.
25 The question of objective responsibility,
1 also raised by the Prosecutor and which my client is
2 charged with -- in our submission, there is no prima
3 facie case, and let me explain why. On pages 37 and
4 38, the Prosecutor claims that, for this
5 responsibility, there is no de jure requirement. We
6 claim that that does not correspond to the truth,
7 because it is de jure envisaged in international
8 conventions, and those conventions were not written in
9 order for someone else to write the laws, but, rather,
10 for courts to try, on the basis of those laws, as this
11 highest tribunal in the world will do.
12 Let us consider just for a moment that no
13 such de jure definition is required but only a de facto
14 definition, or some kind of combination of the two.
15 The first question that is raised is: who will
16 establish, and how, whether that responsibility
17 existed, and to what extent de jure responsibility
18 existed and to what extent it existed de facto. This
19 cannot be a question of judicial judgment, because, in
20 any army, a minor weaker general commands -- has
21 command over a powerful soldier, because he has de jure
22 responsibility which a de facto responsibility is
23 derived, and this, the de jure authority, gives him the
24 right to command over the army, to influence the army,
25 to influence its mental state and so on, and precisely
1 due to this influence, his command responsibility is
3 The responsibility of the old general and the
4 meaning of the war he has waged is based on this. The
5 question one may ask is why the conventions punish
6 people because they wish to prevent an unlawful waging
7 of war by responsible people in an irresponsible
8 manner. Therefore, it is legally quite unacceptable
9 when the Prosecution claims that someone here will
10 judge the de facto authority of Mr Mucic and his de
11 jure authority. We are judging on the basis of formal
12 conventions, which very clearly and with transparency
13 define responsibility, and everything else that the
14 Prosecution is doing is simply trying to catch a straw
15 which does not exist.
16 This can be seen from the response of the
17 Prosecution, when it is not charging the person
18 superior to Mr Delalic. I submit that all kinds of
19 things can be said, but to say that Zdravko Mucic had
20 some kind of authority, while no-one appointed him to
21 that position with any kind of document and no-one
22 guaranteed those who would not obey him is absolutely
23 an error and a false allegation against Mr Zdravko
25 On page 39 of his response, the Prosecutor
1 says that the Conventions do not require that the
2 accused be a formal commander. In this response, the
3 Prosecution does not really touch on the substance.
4 I have never said, and from what I have heard none of
5 my esteemed colleagues here -- nobody ever spoke of
6 formal position of authority. If somebody is being
7 punished because they did nothing, or did not prevent,
8 then it assumes that this person was in a position to
9 do so. So, the burden of proof is in the Prosecution's
10 court. They cannot deduce it from principles, because
11 we are here dealing with a criminal responsibility, not
12 with the moral responsibility, so, first, the
13 Prosecution has to prove that this factual possibility
14 existed and that is different from these formal
16 As far as Mr Mucic's command responsibility,
17 so far it has only been proved that he never had any
18 formal authority and he was not in a position to report
19 to any higher or superior command. At page 40 of the
20 Prosecution's response, the question remains: who had
21 control over the Celebici camp? This control over the
22 Celebici camp has not been proved by the Prosecution.
23 What does it mean to be under control? A wider
24 hierarchy has to be established. The Red Cross, which
25 was active in the territory of the former Socialist
1 Federal Republic of Yugoslavia, cannot be the authority
2 through which we could glean these Conventions.
3 At pages 42 to 49, the Prosecution quotes our
4 motion in many details, but it does not really put --
5 it does not really put a dent into our submissions. On
6 page 49, for instance, it is said that it is not
7 necessary to prove that Mr Mucic was not a commander.
8 However, midway through this section, they slip in that
9 he was a commander. But, at the same time, they say
10 that they admit that it has not been proved that he was
11 a commander, and which individuals are involved in
12 organising and commanding the camp on a daily basis.
13 So, who are these individuals? It could be a shepherd,
14 it could be just about any person.
15 The point is that Mr Mucic had to have been
16 in a position, even if he did not know -- I think that
17 this is not a thesis that can be supported in fact.
18 They cannot prove that he had an obligation,
19 but since they cannot prove that, they say that he was
20 able to, so they claim that this was a combination of a
21 de jure and de facto responsibility.
22 On page 50, the Prosecution cites further
23 authorities. Why did the Prosecution not bring
24 witnesses who would support these authorities? They
25 did not provide such witnesses.
1 Also, we believe that the additional
2 Protocols cannot be judged and referred to by this
3 Trial Chamber, because they were never properly
5 On page 71, the Prosecution claims that the
6 prisoners have testified that Mr Mucic was camp
7 commander. This is not true. None of these people
8 were able to do so. The Prosecution seems to ignore
9 the fact that they did not know what the commander
10 was. They said that they thought that Mr Mucic was not
11 really the commander, but something like a commander.
12 They did not know anything about the appointment, about
13 the functions, the duties, the obligations, and they
14 did not know what Mr Mucic could have done and what he
15 actually did. They did not know what the
16 responsibilities of the commander were, and because the
17 Prosecution could not prove that Mr Mucic was the
18 commander, they combine this de jure and de facto
19 aspect, which is inapplicable in these proceedings.
20 The Prosecution also claims that all
21 prisoners have confirmed that Mr Mucic was camp
22 commander. None of the prisoners really confirmed
23 that. They do not know this, and they cannot be
24 trusted, in the sense of their ability to know that he
25 actually was camp commander -- even though they claim
1 that he was. None of the prisoners were also able to
2 testify as to the period of time in which Mr Mucic was
3 the camp commander, or at what time he was present at
4 the camp.
5 Certain witnesses said that he drove certain
6 prisoners to Musala. That makes him no more than a
7 driver. That means he himself was not able to release
8 them and this supports our thesis that he was not a
9 camp commander, and from page 70 on, we say proves that
10 he was not the camp commander, because none of the
11 witnesses proved that he was.
12 What a commander is is not a question of
13 impression. Not a single witness has shown that
14 Mr Mucic had de facto authority. They never said that
15 he was a commander, but, by being trained by the
16 organisations they belonged to, they said that they
17 just thought that he was a commander.
18 Similarly, Mr Mucic is being charged for
19 detention of civilians, but the indictment has not
20 stated explicitly for any detainee that he was a
21 civilian. Never in this trial has any one of the
22 witnesses heard said that Mr Mucic captured a
23 civilian. That is uncontested. It should be said that
24 many other witnesses, and so far only the witnesses of
25 the Prosecution, because they have completed their
1 case, have testified and said that they were grateful
2 to Mr Mucic for his assistance and even financial aid.
3 Let us recall, your Honours, the witness who
4 said, addressing this lofty Tribunal, that Mr Mucic
5 gave him medicine, taken from his own parent, to assist
6 that witness. Therefore, Mr Mucic is quite wrongly
7 charged, and we feel that the thesis of the Prosecution
8 cannot be accepted regarding his alleged participation
9 in plunder or moral permission of plunder.
10 Let me now conclude, your Honours. The
11 Prosecution has not, in absolutely any way, proven the
12 relevant points raised in our submission. Therefore,
13 I feel that the impotence of the Prosecution's reply is
14 clear evidence that all our allegations in our
15 submission are justified. With the exception of
16 certain authorities or citations, the Prosecutor's
17 response does not have any legal validity, logically,
18 legally, or in any other way. So, we abide fully by
19 our original submission and request that, in this stage
20 of the proceedings, a decision be taken to dismiss the
21 indictment and, also, that the Trial Chamber may deal
22 with our request for habeas corpus acta. Thank you,
23 your Honours.
24 JUDGE KARIBI-WHYTE: That concludes the
25 submissions of the Defence. Can we hear the reply?
1 MR NIEMANN: Your Honours, Ms McHenry will
2 present the Prosecution response to the Defence
3 submissions. Before I sit down, I am compelled to
4 comment on some remarks made by Madam Residovic when
5 she said that we had failed to call Esad Ramic, the
6 witness, because his evidence was exculpatory and thus
7 placing us in breach of Rule 68. These remarks are
8 misleading, to say the least. She is aware of this
9 position. I invite her to tender my letter to her,
10 dated 18 November 1997, when I complied with Rule 68,
11 and your Honours will be able to see for yourself what
12 we said in that letter.
13 Your Honours, if this is the standard of
14 prosecutorial practice that Madam Residovic is
15 accustomed to, we very much resent being judged by
16 those standards.
17 I ask Ms McHenry now to present our
19 JUDGE KARIBI-WHYTE: Do you really need to
20 make a reply to that?
21 MS RESIDOVIC: Your Honours, I would not
22 necessarily have to reply, but I do ask you to allow me
23 to say that, referring to that letter, I said that the
24 Prosecutor, fulfilling its obligation under Rule 68,
25 informed us by this letter regarding the position of
1 Mr Esad Ramic. That is what I said. Thank you.
2 JUDGE KARIBI-WHYTE: Continue, Ms McHenry.
3 MS McHENRY: Thank you, your Honours. Good
4 morning. Your Honours, I will be brief, because most
5 of the issues raised here have been more than
6 adequately addressed in the Prosecutor's response.
7 I thus just wish to address a few of the issues raised
8 by opposing counsel and I will do so in the order in
9 which they were discussed.
10 Dealing first with Mr Ackerman's response --
11 presentation to your Honours, he first addressed the
12 issue of whether an international armed conflict had
13 been established to a prima facie level and the impact
14 of the recent Tadic judgment on that finding.
15 We will first note that, in Tadic, a prima
16 facie case of international armed conflict was found.
17 Secondly, we point out that the Tadic judgment, both
18 with respect to its legal findings and its factual
19 findings, is not binding on this Chamber, because it is
20 just of equivalent authority.
21 With respect to the legal elements,
22 particularly with respect to the requirement of
23 effective control, we have addressed that in our brief
24 and just again note that that issue is under appeal.
25 With respect to the factual findings, of
1 course they do not apply, because the facts here are
2 different. Now, the Defence has invoked the doctrine
3 of collateral estoppel here, but has not discussed in
4 any way the applicability of that doctrine in this
5 context and certainly we would say, before this
6 Tribunal, the doctrine of collateral estoppel has no
7 application, and we would point out that, in a number
8 of jurisdictions, I believe including, for instance,
9 England and Australia, the doctrine of collateral
10 estoppel does not apply in criminal cases.
11 Third, with respect to the facts, there was
12 additional evidence presented in this case not
13 presented in Tadic, which would establish a prima facie
14 case of effective control, as well as international
15 armed conflict. We discussed this in our brief and
16 give the citations to the evidence.
17 Here, I will just briefly list some of the
18 additional evidence. In addition to the date of the
19 Jovic diaries, there was evidence regarding the FRY
20 sending in high-level JNA personnel to the RS to handle
21 certain military problems. There were the factual
22 findings of various outside bodies, including the
23 Perdue Report, and there was a discussion of the SDS
24 programme as it specifically related to Konjic.
25 Finally, we would point again to the initial
1 and oft-repeated declarations by Bosnia that this was
2 an international armed conflict, and point out that the
3 victims in this case were in the hands of Bosnia, who
4 had made those declarations.
5 In these circumstances, we believe it does
6 not behove the Defence to argue that international
7 armed conflict has not been established and, in this
8 regard, also, we would point out that, at this stage,
9 all matters of credibility must be interpreted in
10 favour of the Prosecution.
11 Mr Ackerman's response to one of your
12 Honour's questions about the Bosnian declarations, that
13 Mr Ackerman did not find it credible, is not an
14 appropriate response at this time, because all matters
15 of credibility must be interpreted in our favour.
16 Indeed, that declaration alone, even were it not for
17 the large amount of evidence establishing
18 corroborating, supporting that declaration, even if all
19 that evidence had not existed, the declaration itself
20 would be sufficient.
21 The next issue raised by Mr Ackerman was that
22 of common Article 3, and the Prosecution will emphasise
23 again, with respect to this matter and with respect to
24 similar matters raised in the brief by, I believe,
25 Mr Landzo, and today here by Mr Olujic, jurisdictional
1 issues, issues of law, may not be raised at this time.
2 Our Rules are very clear, that jurisdictional issues
3 must be raised as preliminary matters. Indeed, not
4 only must they be raised before the hearing on the
5 merits -- in fact, our Rules allow an immediate appeal,
6 so that the entire issue can be handled before the
7 hearing on the merits.
8 Were this not the rule, it would allow, in
9 this case, and potentially in other cases, after a
10 long, protracted, difficult, even expensive hearing on
11 the merits, some of which may last longer than a year,
12 it would allow Defence or any party to just stop or
13 delay the proceedings by raising these questions of
14 jurisdiction. For these very commonsense reasons, our
15 Rules make it clear that preliminary matters, such
16 which include matters of jurisdiction, must be raised
17 before the hearing on the merit. For this reason
18 alone, we would ask that you refuse to entertain any
19 legal challenges to your jurisdiction, including those
20 concerning common Article 3.
21 Even, however, were your Honours to consider
22 the challenge to your jurisdiction under common
23 Article 3, we would point out that the issue has
24 already been resolved by the Appellate Chamber of this
25 Tribunal and as a matter of law, a decision by the
1 Appellate Chamber, that decision is binding on this and
2 on other Trial Chambers.
3 Assuming that he has properly preserved his
4 point for purposes of appeal, Mr Ackerman, or his
5 successor, may well make his arguments before the
6 Appellate Chamber and seek that they change their mind,
7 but the Appellate Chamber has ruled, as a matter of
8 law, on this principle, and arguments before this court
9 on the issue are not appropriate.
10 In any event, and failing all else, your
11 Honours, we would then also point out that common
12 Article 3 clearly does fall within this Tribunal's
13 jurisdiction. We have discussed some of those reasons
14 at length in our brief and they were discussed also at
15 length in the appellate decision.
16 In this regard, we just want to briefly point
17 out that we believe the Defence has mispresented its
18 aes ustim argument concerning what is covered in
19 Article 3. Mr Ackerman made an analogy concerning
20 parking meters and spitting on the street, which we
21 believe is not inappropriate here, particularly given
22 that the Statute explicitly covers other violations of
23 laws and customs of war. If one had to make an
24 analogy, it would be to the crimes set out in Articles
25 2, 4 and 5 of our Statute.
1 Now, we had not earlier responded to the
2 Defence argument concerning the Secretary-General's
3 comment, which was made not only after the Yugoslav
4 Statute had been passed but even after the Rwanda
5 Statute had been passed, but Mr Ackerman specifically
6 requested that the Prosecution respond to the
7 Secretary-General's comment, so we will, in deference
8 to Mr Ackerman, respond.
9 The first point we would make, that any
10 comment, no matter how interpreted, would have to be
11 entitled to much less weight and less authority than
12 the comments made by the Security Council members at
13 the time they adopted the Yugoslav Statute.
14 Secondly, the comment -- we would point out
15 the comment may fairly be interpreted as an
16 acknowledgment, albeit inartfully worded, that the
17 Rwanda Statute more explicitly and specifically worded
18 the incorporation of common Article 3 into the text of
19 its Statute as opposed to the Yugoslav Statute, which
20 clearly incorporated common Article 3 and, indeed,
21 explicitly acknowledged it was doing so, but did it as
22 part of its general jurisdiction over violations of the
23 laws and customs of war.
24 That will finish my response to Mr Ackerman's
1 Turning now to Mr Moran's arguments, with
2 respect to the elements of the offence, let me just
3 clarify the Prosecutor's position. The Prosecutor's
4 position is not that this court is not permitted to
5 determine or rule on some or all of the elements of the
6 offence. The Prosecution's position is merely that, as
7 established in the Tadic case, your Honours are not
8 required to do so.
9 Turning then to the issue of nationality,
10 which is relevant to whether or not the civilians in
11 Celebici may be considered protected persons, that
12 argument is extensively covered in our brief and here
13 I will just point out that nationality, as it has been
14 interpreted in the past, in applying international
15 customary law, is not necessarily circumscribed to
16 technical or overly-narrow domestic definitions and
17 that is particularly true here, where the context is
18 whether or not victims are protected persons, and the
19 context is the breakup of a State with its attendant
20 complicated questions concerning the date the State
21 broke up, what domestic law was in effect, how domestic
22 law was applied, and whether or not the domestic law
23 was in accordance with international standards.
24 THE INTERPRETER: Let me ask counsel to slow
25 down, please.
1 MS McHENRY: Thank you. I would point out
2 that some of these questions concerning domestic law
3 may drag on for years and cannot be -- should not be
4 and cannot then be interpreted to prevent all persons
5 from being protected. Similarly, with respect to
6 protected persons as it relates to PoWs, where
7 nationality is not in issue, the issue and the evidence
8 are treated at length in our brief and I would
9 emphasise one point and that is it was clear at the
10 time that there were different classes of persons who
11 could be considered PoWs and, indeed, who could be
12 considered voluntary militia, members of a levee en
13 masse, as well as the civilians, and, indeed, this was
14 effectively acknowledged, when after the armed
15 conflicts in Bradina and Donje Selo the men were
16 captured and the investigating committee was set up
17 with its various categories, which, as were explained
18 to the court, were created, and, as set out in our
19 brief, under the clear language of the Geneva
20 Conventions, in cases of doubt as to whether or not
21 someone is in fact a PoW, all the persons are entitled
22 to PoW protection until their exact status is
24 Mr Moran then discussed at length the
25 doctrine of superior responsibility. As stated in our
1 brief, we contend the Defence is wrong with respect to
2 the submissions regarding causation and regarding
3 knowledge. With respect to causation, the Defence, as
4 we understand it, support is Mr Bassiouni's book,
5 "Crimes Against Humanity". We would point out and
6 argue that in this regard Mr Bassiouni's discussions of
7 causations is neither clear nor authoritative with
8 respect to this issue. We would invite your Honours to
9 look at the relevant section of Professor Bassiouni's
10 book, and direct you particularly to pages 371 and 372
11 for your own evaluation.
12 In any event, given the circumstances of the
13 accused here, and the facts of the Celebici case, the
14 distinctions concerning the differing views of
15 knowledge and causation are not even relevant, because
16 the evidence in this case would satisfy even the
17 incorrect and narrow standards offered by the Defence.
18 With respect to, then, to the command
19 responsibility of Mr Delic, which Mr Moran also
20 treated, I must frankly admit that the Prosecution did
21 not understand all of Mr Moran's argument, and as we
22 understood it, it does not necessarily even appear that
23 there is much disagreement as to the law.
24 The disagreement here, we believe, concerns
25 the facts, because, as stated in our brief, the
1 evidence establishes that, whatever his title, whatever
2 his rank, Mr Delic had command authority. He had
3 authority over the guards in the camp and could control
4 their conduct. Just some examples of the evidence
5 establishing this are cited in our brief.
6 As your Honours have noted, the fact that a
7 person has intermediate command authority rather than
8 ultimate command authority does not render him somehow
9 not responsible, and, as your Honours have also noted,
10 the relevant question is: could he prevent or punish
11 by virtue of his authority? In this case, more than a
12 prima facie case has been established that Mr Delic
13 meets that standard.
14 With respect to the unlawful confinement of
15 civilians, a matter touched upon by both Mr Moran and
16 Mrs Residovic, there are of course circumstances under
17 which civilians may be lawfully detained, but there are
18 limited circumstances and they require the detaining
19 authorities to take a number of steps to make the
20 detention lawful and, in this case, those steps were
21 never taken. To try and categorise the events which
22 transpired in Celebici as legitimate pre-trial
23 detention flies in the face of the tragic and often
24 moving testimony that we all heard in this courtroom,
25 and it is an astonishing and unsupported proposition
1 for learned counsel to make. If adopted, this
2 proposition could be used to justify the imprisonment
3 of all persons, be they the detainees in Celebici or
4 Omarska, or any of the other camps in former
6 With respect to Mrs Residovic's arguments
7 concerning this superior responsibility of Mr Delalic,
8 the Prosecution notes that all evidence and all
9 inferences are to be drawn in favour of the
10 Prosecution. Thus, Mrs Residovic's arguments
11 concerning why certain evidence is not reliable, or how
12 certain evidence can be explained, or why parts of the
13 evidence should be relied upon at the expense of other
14 parts -- all such arguments are appropriately made as
15 part of her closing arguments. We have established in
16 our brief numerous facts, which support a prima facie
17 case against Mr Delalic, and I am happy to list or even
18 discuss any of those in detail with your Honours, but,
19 for now, in the absence of questions concerning the
20 facts establishing Mr Delalic's authorities, we would
21 reserve our detailed responses to closing argument.
22 Similarly, with respect to Mr Olujic's
23 submission, we believe that we have adequately
24 responded to his legal and factual arguments in our
25 brief, and, with respect to any supplemental factual
1 arguments he made today concerning the weight or
2 interpretation of the evidence, we will respond as part
3 of our closing address. We do not believe that it is
4 necessary to do so now, because the evidence has more
5 than established a prima facie case against Mr Mucic,
6 as indeed against all the other accused. For that
7 reason, your Honours, we would ask that you deny the
8 Defence motions to dismiss the indictment. Excuse me
9 for one minute.
10 That concludes our submission, your Honours,
11 unless you have any questions, or any particular areas
12 you would like me to address in more detail.
13 JUDGE KARIBI-WHYTE: We are not asking any
14 further questions.
15 MS McHENRY: Thank you, your Honours.
16 MR ACKERMAN: Your Honour, may I have a
17 three-minute reply?
18 JUDGE KARIBI-WHYTE: That is alright, you
19 may reply.
20 MR ACKERMAN: I will be extremely brief.
21 I neglected to mention yesterday that that 22 May
22 agreement that Ms McHenry just talked about was
23 discussed at length in, I believe, the Tadic appellate
24 decision, and it was discussed in this context, that
25 that agreement was entered into on 22 May of 1992 under
1 the auspices of the ICRC by Croatia, Bosnia-Herzegovina
2 and Republika Srbska. The comment made by -- I believe
3 the Tadic appellate decision -- was that that was
4 evidence that the ICRC and those three parties
5 considered the conflict in which they were engaged to
6 be an internal conflict, because, otherwise, the ICRC
7 would have violated the terms -- and all of the parties
8 would have violated the very terms of the Geneva
9 Conventions by entering into such an agreement, because
10 the Conventions specifically provided that you cannot
11 enter into an agreement -- parties cannot enter into an
12 agreement lessening the impact of the Conventions in
13 any way.
14 The 22 May agreement did that by only
15 including very small portions of the Conventions, and
16 the Tadic Appellate Tribunal Chamber felt that that was
17 an indication from the parties themselves that they
18 believed they were involved in an internal armed
20 With regard to the question of jurisdiction,
21 and common Article 3, the question of whether something
22 is customary international law, as I suggested
23 yesterday, is a mixed question of law and fact. The
24 International Court of Justice in the asylum case and
25 in a number of other cases that I cannot remember the
1 name of right now, has said that a person trying to
2 invoke customary international law has a burden of
3 proof. They have to prove that something is customary
4 international law. It would be ridiculous to say,
5 before the Prosecution is put to its proof in that
6 regard, we have to raise the issue of your jurisdiction
7 with regard to common Article 3, or have somehow waived
8 it. The only time that one can legitimately raise a
9 jurisdictional issue that is based both on law and fact
10 is after the Prosecution has been put to its proof and
11 has failed in that proof.
12 In addition, this court can only have the
13 jurisdiction that is given to it by the United
14 Nations. It cannot have additional jurisdiction. The
15 Office of the Prosecutor and I cannot stand here today
16 and agree to give you more jurisdiction than the United
17 Nations gave you. We cannot do that. If Ms McHenry
18 and I were to stand up right now and say, "Your Honours
19 we have decided to give you jurisdiction over matters
20 that occurred in Iraq during the fighting there", we
21 could not give you that jurisdiction by agreement. If
22 we cannot give you jurisdiction by agreement, we
23 certainly cannot give you jurisdiction by waiver.
24 There is not a court in the world that I know
25 of where jurisdiction cannot be raised at any time,
1 including after the conclusion of the case, after all
2 the appeals, and everything else. Jurisdiction is
3 always a question, because a court can never do what it
4 has no jurisdiction to do, so it is always an issue
5 that can be raised. It is preposterous to me that a
6 Prosecutor says if you do not raise jurisdiction within
7 60 days of indictment you give the court jurisdiction
8 that it otherwise might not have. That cannot be the
9 law in any way. Thank you very much.
10 MR MORAN: If I could, there are a couple of
11 things that Ms McHenry said I would like to respond to,
12 also. I think I will be even shorter than Mr Ackerman.
13 JUDGE KARIBI-WHYTE: You may proceed.
14 MR MORAN: The first thing is Ms McHenry
15 asserts that the Trial Chamber is bound by the Tadic
16 decision as applies to common Article 3. If that is
17 true, I would also suggest that this Trial Chamber is
18 bound by the Tadic appellate decision as it applies to
19 the nationality of Bosnian Serbs, specifically
20 paragraph 76, I believe, of the Tadic appellate
21 decision. Therefore, there should be no issue -- it is
22 clear that they are -- the Bosnian Serbs and Bosnian
23 Muslims are the same nationality.
24 Secondly, Ms McHenry seems to overreach,
25 I think, the reach of article 5 of the Geneva
1 Convention on Prisoners of War. There is no
2 requirement that every person who is taken into custody
3 during an armed conflict get an article 5 Tribunal.
4 There has to be some doubt as to their status as a
5 prisoner of war, and there is no protection under
6 article 5 of the GPW, unless there is a legitimate
7 question of prisoner of war status.
8 As to unlawful confinement, Ms McHenry seems
9 to equate the fact of confinement with the fact of
10 conditions of confinement. There are two different
11 counts in the indictment. One has to do with the
12 actual detention of people and the other has to do with
13 the conditions of detention. Those are two different
14 issues. I would suggest that when the Prosecution
15 stands up and asserts that the people who were confined
16 in the Celebici camp may have been part of a levee en
17 masse, that the great weight of international law is
18 that, if there is a levee en masse, it would be -- it
19 might be justifiable to treat all males of military age
20 as prisoners of war and detain them. So, I think -- my
21 source for that would be the US army field manual,
22 FM27-10, paragraph 65.
23 I do not think that the Prosecutor can have
24 it both ways. With that, your Honours, I thank you
25 very much for your indulgence.
1 JUDGE KARIBI-WHYTE: Thank you very much.
2 MS RESIDOVIC: Your Honours, very briefly,
3 just as my colleagues, I would just like to respond to
4 the Prosecutor's remarks before this Trial Chamber.
5 In our written brief and orally we have
6 clearly stated that the Prosecution has not established
7 a prima facie case against Mr Zejnil Delalic. On the
8 contrary, the evidence which was presented and which we
9 cross-examined on have all pointed in the direction
10 that, with regard to Zejnil Delalic, at no time did any
11 function that he discharged have any superior authority
12 and responsibility.
13 I would like to refer you to the Trial
14 Chamber's decision of 25 September 1996 in reference to
15 the Defence motion for provisional release and Judge
16 McDonald and other esteemed judges discussed the issue
17 of founded suspicion. It shows that the Prosecution
18 evidence was weak, but at that time they were prima
19 facie. I think at the end of the presentation of
20 evidence, they do not meet this standard and that we
21 have presented evidence that disproves them --
22 MS McHENRY: Your Honours, we would object
23 to this as not being responsive to anything the
24 Prosecution said in its response.
25 MS RESIDOVIC: The next point that I am
1 trying to make is that the prima facie -- that the
2 Prosecution is now submitting has to be --
3 THE INTERPRETER: Can the counsel be asked to
4 slow down and reread this portion?
5 MS RESIDOVIC: I am going to read this
6 sentence again and, after that, I have only one more
7 comment. In judging whether the evidence presented by
8 the Prosecution before this Trial Chamber is sufficient
9 to meet the standard of prima facie, I refer to the
10 decision of the European Court for Human Rights, which
11 states that the existence of reasonable doubt
12 presupposes the existence of facts, which would satisfy
13 an objective observer that a person may have committed
14 a certain crime.
15 A similar position is also quoted by this
16 Tribunal's ruling in the case of Rajic. The last
17 comment I would like to make with respect to the
18 Prosecution's submissions is that any comparison of the
19 Celebici case with Keraterm or any other case is
20 inappropriate, because, from day one of this trial
21 against Mr Delalic and others, a comparison was made in
22 this Trial Chamber with the large concentration camps
23 of World War II. I think that this is very
24 inappropriate and I object to it.
25 MR OLUJIC: Your Honours, I shall be very
1 brief, because in her response, our learned friend did
2 not refer to our arguments, except to the arguments
3 concerning jurisdiction. Your Honours, not a single
4 court cannot pass a lawful decision if it has no
5 jurisdiction to do so. If an objection has been made
6 regarding jurisdiction and it has -- and Mr Mucic in
7 fact changed his Defence counsel on these grounds, and
8 I wish to thank my learned colleague for referring to
9 the Rules, which envisage the possibility of making
10 such an objection, but it does not mean to say that
11 this objection cannot be made at any stage in the
12 proceedings, and it is precisely because of this reason
13 that Mr Mucic changed his attorney for his Defence.
14 That is all I have to say your Honours, thank you.
15 JUDGE KARIBI-WHYTE: Thank you very much.
16 I think we are at the end. This concludes arguments on
17 this motion. I think we should hand down our ruling on
18 Wednesday of next week, which should be on the 18th of
19 this month. We should hand down our ruling then.
20 Would you prepare for your Defence, if there is any,
21 and in respect of which areas you are expected to
22 respond. We will hand down our ruling, as I said, on
23 the 18th.
24 MS RESIDOVIC: Your Honours, may I be
25 permitted to ask you to make a proposal? If the ruling
1 of the Trial Chamber, or, rather, when the ruling is
2 made on the 18th, I would like to ask, as Defence
3 counsel for Mr Delalic, who, should a Defence case be
4 made, will be the first defendant -- would you now
5 change your instructions regarding the presentation of
6 evidence, if that proves to be necessary, and to make
7 it possible for the Defence of Mr Delalic to begin
8 three weeks after your ruling. I am deeply convinced
9 that that will not be necessary, but, if it should be
10 necessary, I believe that it is reasonable for us to
11 request three-week period after your ruling is made.
12 JUDGE KARIBI-WHYTE: I think that should be
13 a matter for discretion among the counsel. I think it
14 is not for us to determine when you will come in and
15 make your own Defence. You discuss that among your
16 colleagues. Maybe they will accommodate you and know
17 how you present your case. This is a collegiate
19 MR MORAN: I presume the Tribunal will hand
20 down a written ruling and not expect us in the
21 courtroom on the 18th, because I think all of us -- at
22 least I have made plans to leave The Netherlands this
23 weekend, and I have made -- because there is nothing
24 scheduled -- I presume it will be a written decision,
25 there will be faxes to our offices or something like
2 JUDGE KARIBI-WHYTE: It would be a ruling on
3 the arguments before us.
4 MR MORAN: What I am getting to is the Trial
5 Chamber does not expect us to be sitting here on the
7 JUDGE KARIBI-WHYTE: No, that is not
8 necessary. You will get a ruling. You do not have
9 to --
10 MR MORAN: I have had some experience in the
11 last few days with lawyers not being at hearings. I do
12 not want to be in that situation.
13 JUDGE KARIBI-WHYTE: No, I do not think so.
14 MS RESIDOVIC: Your Honours, maybe I did not
15 make myself clear. We have your written notification
16 that, if necessary, the Defence should begin with its
17 case on 30 March. I am asking you, if a Defence case
18 is made, could it begin three weeks after your ruling
19 is brought.
20 JUDGE KARIBI-WHYTE: We have already put out
21 a schedule, and you know that the schedule is meant for
22 the Defence to start on 30 March. That schedule
23 remains. It remains unchanged.
24 JUDGE JAN: Maybe you could start making
25 your preparation. In case the ruling goes in your
1 favour you can always cancel that, but be ready. There
2 are so many trials going on at the same time and we
3 have to take out -- according to the schedule already
4 prepared. In the event the ruling goes in your favour,
5 you can cancel it -- you will have plenty of time to
6 cancel arrangements.
7 JUDGE KARIBI-WHYTE: I think that is the
9 MR NIEMANN: We will object to any
10 adjournment of the matter. The matter has been set
11 down for a very long time, counsel has been very well
12 aware of the need to prepare. Preparation does not
13 start when your Honours make the ruling. It should
14 have started well and truly in advance of this. We
15 also say that if the order of the presentation of the
16 cases are to be changed, we would like to be informed
17 of that, because we have to prepare to meet the Defence
18 and, if they change the order that they are going to do
19 it, because of this or any other matters raised by
20 Madam Residovic, we wish to be informed of those
21 matters so we can adjust our preparation accordingly.
22 JUDGE KARIBI-WHYTE: Thank you very much.
23 Things remain as they are and the Trial Chamber will
24 now rise. We will assemble on the 30th.
25 --- Whereupon the hearing adjourned at
1 11.33 a.m., to be reconvened on Monday,
2 the 30th day of March, 1998 at
3 10 a.m.