1 Monday, 31 August 1998
2 --- Upon commencing at 11.10 a.m.
3 JUDGE KARIBI-WHYTE: Good morning, ladies and
4 gentlemen. We're back here after a fairly long spell
5 and I know you are very hard pressed to meet the
6 deadline. I congratulate all of you for meeting it.
7 That's excellent.
8 Now, we have a few motions to consider. Some
9 have been taken over by the efficiency of the machinery
10 here. Perhaps the only one I can have in mind is
11 Mrs. McMurrey's admission against the leading counsel
12 for Mucic. Do you still think it is necessary to argue
14 MS. McMURREY: Your Honour, I do believe that
15 there needs to be an objection. I would like to, but
16 of course, I am not going to reargue all of the
17 points. Everything that I stated in my motion, I still
18 stand for. Basically, that Ms. Buturovic was our
19 investigator for a short period of time. As the Court
20 is aware, there was a conflict in the fee vouchers.
21 That Mr. Landzo signed a waiver to allow her to be
22 investigator for Mr. Mucic, but he did not sign a
23 waiver to allow her, saying that there was no conflict
24 of interest if she were lead counsel.
25 There is another thing I did not say in my
1 motion. That she also represented two of our witnesses
2 who we called here under subpoena who refused to
3 testify, which also amounts to a conflict of interest,
4 I believe. I don't believe that the Defence of
5 Mr. Mucic will be prejudiced by her disqualification
6 because Mr. Kuzmanovic is going to do all of the
7 closing argument anyway. So he is there and present
8 and would be qualified to represent Mr. Mucic in case
9 the Court did decide to disqualify Ms. Buturovic.
10 Thank you.
11 JUDGE KARIBI-WHYTE: Actually, do you think
12 merely making closing speeches, which did not entail
13 any additional evidence, that all that has been
14 recorded? Does is it make any difference to the case
15 of Esad?
16 MS. McMURREY: I am not sure I am clear what
17 the question is. I believe with the punishment -- if
18 the verdict is guilty and if there is -- there is a lot
19 of ifs -- if we go on to the punishment phase, that the
20 knowledge that Ms. Buturovic has as our investigator
21 and, you know, the conflict of interest that I think is
22 rampant on her part because of the conflicts that she's
23 had with us, would make a difference if it goes past
24 the verdict, Your Honour.
25 As far as closing argument goes, I don't see
1 there could be much of a big conflict for closing
2 argument, no. I think that was your question.
3 JUDGE KARIBI-WHYTE: Yes, actually, that was
4 the area I was interested in.
5 JUDGE JAN: Just one thing. We are to
6 confine ourselves to what the evidence is before us at
7 this stage. So whether Madam Buturovic had some
8 knowledge, which she shouldn't bring to the Court isn't
9 really relevant at this stage. At the earlier stage
10 you could say. But at this stage we need to confine
11 what the evidence is before us. Madam Buturovic was
12 not so shaded with the defence of any of the accused at
13 the evidence stage. It's merely a question of
14 arguments now.
15 MS. McMURREY: The Court is absolutely
16 correct. I believe at this point it would be very
17 difficult for her to have a conflict of interest. But,
18 in the future, if it goes to the sentencing/punishment
19 stage and all evidence is relevant, then I believe
20 there would be a conflict at that point.
21 JUDGE JAN: Then you can raise a point at
22 that stage.
23 MS. McMURREY: Thank you.
24 JUDGE KARIBI-WHYTE: Thank you very much. I
25 think that resolves it. We don't have to call you for
1 any replies to the motion, so we'll leave it as it is.
2 You are free to take notes in the closing arguments in
3 the interest of your clients.
4 Now, is there any outstanding motion? I
5 think Mr. Moran's motion, as I said, need not keep us.
6 MR. MORAN: You're correct, Your Honour. The
7 Appeals Chamber made that motion pretty moot this
8 morning. The problem is solved. You're aware that my
9 worry was I didn't know whether the Trial Chamber was
10 deprived of jurisdiction because of the appeal. Well,
11 the appeal is over. The Trial Chamber has been held to
12 have ruled correctly. That's the end of it.
13 JUDGE KARIBI-WHYTE: I am only interested
14 that you are more interested in the state of the
15 appellate himself.
16 MR. MORAN: Well, Your Honour, all I can say
17 on that is I was thinking more along the lines of
18 jurisdiction. I didn't want have the Trial Chamber and
19 the Appellate Chamber dealing with the same case at the
20 same time and trying to juggle who is doing what.
21 That's why I brought it to everyone's attention. I am
22 sure you know I brought it to everyone's attention.
23 JUDGE KARIBI-WHYTE: Thank you very much.
24 You did the right thing.
25 Now, you've all received the schedule for
1 argument and the procedure we intend to adopt. Then,
2 do we call on the Prosecution to present its summary for
3 our arguments.
4 MS. McHENRY: Thank you, Your Honours.
5 Teresa McHenry for the Prosecution, appearing with Mr.
6 Niemann, senior trial attorney, and Mr. Huber. Good
7 morning to Defence counsel too.
8 Your Honours, this Tribunal represents a
9 precedent and a challenge. We are here as
10 representatives of the international community to
11 prosecute those persons responsible for serious
12 violations of international humanitarian law. We are
13 to do so impartially without regard to ethnicity,
14 without regard to politics and without regard to
15 victor's justice.
16 This Tribunal is to conduct a fair trial, one
17 which searches for the truth while being fair to the
18 parties, the victims, and of course, the accused
19 themselves. After the trial, if the evidence has not
20 established the guilt of the accused beyond a
21 reasonable doubt, it is certainly the duty of this
22 Tribunal to acquit. But if the evidence has
23 established the guilt of the accused beyond a
24 reasonable doubt, it is the duty of this Tribunal to
25 convict. When this is done and when those persons
1 proved to be responsible for violations of law are
2 convicted, justice will have been achieved and this
3 Tribunal will have met one of its fundamental
4 challenges to show to the persons in the former
5 Yugoslavia and the international community, generally,
6 that even in war there are limits. That the principles
7 of international law do mean something in this modern
8 world and in modern warfare and that persons who
9 violate those principles can be found responsible.
10 Let's be honest, the challenge is not an easy
11 one: practically, emotionally, legally. It's a hard,
12 laborious process. It's especially hard here because
13 not only is this Tribunal a precedent, but this trial
14 is, itself, a precedent. This Tribunal will be
15 rendering one of the first verdicts of command
16 responsibility. Will be considering new issues
17 regarding mental health. I am sure we will be
18 considering many other issues as well.
19 The challenge of finding the truth may not
20 always be as easy as it is in our national systems. At
21 the time the crimes happened, there was not an
22 independent police force operating, rather there was a
23 war going on. So some things, be they documents,
24 autopsies, contemporaneous interviews, may not be in
25 evidence. Many of these things never existed because
1 of the ongoing war. Even when such physical evidence
2 did exist, it may be gone or unavailable because it was
3 destroyed after the war, because it's in the hands of
4 persons in whose interest it is not to turn it over.
5 So the evidence sometimes may take a slightly different
7 Further, with respect to witnesses, sometimes
8 it might be harder to have witnesses testify.
9 Sometimes the witnesses can't be located or they're too
10 traumatised or scared to testify. When the witnesses
11 do come, there are language differences, maybe even
12 some cultural differences to consider. But while the
13 process of presenting and evaluating the evidence may
14 take a little longer, require a little more work, the
15 basic process is the same here as in all criminal
16 trials. It is to evaluate the evidence, including the
17 reasonable inferences to be drawn from the evidence.
18 It is to evaluate the witnesses, including their
19 credibility. In all of this, you will resort to your
20 experience as jurists, as human beings and you will
21 rely on your common sense.
22 So the process may take a little longer or be
23 a little harder, but it's fundamentally the same. Of
24 course, the ultimate question is the same: Does the
25 evidence establish guilt beyond a reasonable doubt?
1 When you consider the evidence in this case, Your
2 Honours, as a whole, when you consider the physical
3 evidence, the testimony of the witnesses, the
4 inferences that must be drawn from the evidence, we
5 respectfully submit that there can only be one
6 conclusion. That is, that the evidence has established
7 beyond a reasonable doubt, the guilt of each of the
8 four accused in this case.
9 In considering this case, I submit there are
10 really two kinds of issues. One kind surrounding the
11 crimes themselves and the second kind concerning
12 responsibility for those crimes.
13 Just for one minute I would like to talk to
14 about the law as it regards to the crimes. The
15 Prosecution submits that there can be no genuine
16 dispute, that the underlying crimes charged here:
17 murder, torture, rape; are crimes that are recognised
18 by Articles 2 and 3 of our statute. We also submit
19 there can't be any genuine dispute that Article 3 is
20 applicable to this case. There is, however, a dispute
21 about whether Article 2, grave breaches of the Geneva
22 Conventions is applicable. The defence would interpret
23 the law narrowly so that it would, in effect, only
24 apply in those situations, where long established
25 countries are at war with each other with
1 well-organised and well-dressed armies fighting each
3 The Prosecution submits the world isn't
4 always that simple. Countries break up and complicated
5 questions of succession and reorganisation and
6 recognition exist. Other countries become involved
7 with different parts of the war. Citizenship laws
8 don't always exist immediately. Even when they do,
9 they're sometimes not clear or in accordance with
10 international law. The parties on all the sides won't
11 always have uniforms.
12 But international humanitarian law, including
13 as it has developed since the Second World War doesn't
14 require the world to be that simple for the law to
15 apply. The application of the Geneva Convention
16 depends and looks to the reality of the situation. So
17 someone doesn't necessarily have to wear a uniform to
18 be entitled to POW status as long as they're in combat
19 they wear their arms openly. Persons can be protected
20 even where the internal, technical, citizenship
21 requirements are not clear.
22 Here, in this case, in the Celebici case, the
23 reality of the situation as shown by the Prosecution
24 evidence, and indeed, as acknowledged by the Defence
25 witnesses and acknowledged by the Government of
1 Bosnia-Herzegovina upon whose behalf the accused were
2 acting in 1992. The reality of the situation was that
3 this was an international armed conflict and that
4 persons in Celebici were arrested because they were
5 considered to be Serbs and possible POWs associated
6 with the adversary. Article 2 should, therefore,
7 protect the victims in the Celebici camp.
8 With respect to the underlying crime, Your
9 Honours, you heard testimony from 30 detainees, 30
10 courageous people, 30 survivors, who came here from all
11 over the world to tell you about what they experienced
12 and about what they saw and heard of the experience of
13 others. Some were in Celebici for as long as seven
14 months. Many still bore the scars, emotional and
15 physical, of their experience there.
16 It's been a while since we've heard from the
17 detainees and it's easy as we discuss the structure of
18 the army, the strictures of the international law, the
19 details of an accused's psychiatric history, it's easy
20 not to think about the victims. In fact, it's often
21 appropriate and sometimes even necessary to maintain a
22 distance from the crimes. But we can't forget about
23 the crimes or the victims entirely. When one remembers
24 the testimony from the victims and thinks about it just
25 for a minute, the crimes are there. The crimes, which
1 is really the reason why we're all here.
2 You heard from some of the victims. A woman
3 who after being raped multiple times by persons young
4 enough to be her son said she will never be the same.
5 Numerous persons who have been set on fire. Persons
6 who had lit fuses put in their anus. Persons who were
7 forced to commit sex acts family members. People who
8 were beaten to unconsciousness and people who were
9 beaten so badly they couldn't walk for days. People
10 who beaten so badly that they defecated in their single
11 pair of pants. People who had to hear or watch as
12 their fathers or their sons or their friends and
13 neighbours were beaten, often beaten to death.
14 Many of the incidents the victims told you
15 about were particularly noteworthy because they were
16 unusual in their details or in their savagery. The
17 victims also told you about the ordinary incidents,
18 things that happened every day, when they would be
19 kicked in the ribs with army boots when they were
20 sitting in the hangar in the required position. When
21 they were hit with rifle butts when they ran to the
22 open trench to try to go to defecate in their allotted
23 several minutes. These things happen all the time.
24 You also heard from the victims that all the time they
25 were in a state of fear, even when they weren't
1 actually being mistreated. They had to live every day
2 and almost every moment in fear that they would be
3 called out, called out, and beaten and raped or
5 One witness talked about how happy the
6 detainees were once when there was a big rain and
7 thunderstorm. How they actually slept soundly because
8 they knew that no one was going to come and get them
9 that night.
10 You heard from a large number of victims and,
11 as I said, some victims didn't testify for various
12 reasons. Of course, there were also some victims who
13 could not come: Scepo Gotovac, Zeljko Milosevic, Simo
14 Jovanovic, Bosko Samoukovic, Slavko Susic, Milorad
15 Kuljanin, Jelico Cecez, Slobodan Babic, Petko
16 Gligorevic, Gojko Miljanic, Zeljko Klimenta, Miroslav
17 Vujicic, Pero Mrkajic. You didn't get to hear from
18 these victims because these victims were all dead,
19 murdered in Celebici.
20 The testimony from the detainees would be
21 more than enough to prove the crimes charged. But, of
22 course, you have more than that in this case. You
23 have, for instance, testimony from persons who worked
24 in the camp, including Witnesses D and T. You have the
25 report made in June '92 by a group of Muslims and
1 Croats who were supposed to work in the camp as an
2 investigation commission, who finally refused to work
3 because they didn't want to be a part of it. So they
4 wrote a report. In that report they said that there
5 were frequent murders. They said women were being
6 taken out and sexually abused. They talked about the
7 terrible beatings. It's all in there. Now the
8 Prosecution and Defence can make their arguments about
9 whether the persons to whom the report was directed,
10 including Mr. Delalic, actually saw the report. But
11 they can't honestly that dispute that in 1992 the
12 crimes talked about in the report happened.
13 And, of course, we can't forget that the
14 accused themselves have told you that horrific crimes
15 were happening. Mr. Landzo spoke to you directly about
16 the mistreatment by himself and by others. In fact, he
17 could only remember one other guard who didn't mistreat
18 detainees. Mr. Delic in his OTP interview said that no
19 night would go by without the prisoners being beaten.
20 Mr. Mucic said in his interview that he heard reports
21 from others that he saw the injuries and even that he,
22 himself, saw people being abused. Even Mr. Delalic,
23 who was not at the camp frequently, reported in his
24 interview that from the beginning he knew about
25 problems in Celebici, including that persons could come
1 to beat the Serbs for revenge. Then later in August he
2 heard from the Red Cross that persons, including
3 Mr. Delic, were mistreating the prisoners.
4 So in this case, Your Honours, there really
5 isn't any doubt that there were crimes. As set out in
6 detail in our written submissions, there really isn't
7 any doubt that the crimes set out in the indictment
8 were committed as alleged.
9 So then we come to the responsibility
10 issues. Because each one of the four accuses says,
11 well, these victims have been murdered, tortured,
12 otherwise mistreated, but I am not responsible.
13 So let me briefly speak to the responsibility
14 of each of the accused. Mr. Delic and Mr. Landzo are
15 charged under 7(1) of our Statute with direct
16 participation in a number of crimes. Mr. Delic has
17 denied committing any crimes at all. And our response
18 to that is simply ask that the evidence be reviewed.
19 The evidence is overwhelming that among other things,
20 Mr. Delic murdered, Mr. Delic tortured, Mr. Delic
21 raped, Mr. Delic beat and Mr. Delic humiliated
22 detainees. The detainees tried to explain to us what
23 it felt like, how they were terrified at the sight of
24 him. In fact, everyone was terrified of him, the
25 detainees and even the people who worked at the camp.
1 As one detainee put it, he was God and your life
2 depended on it.
3 Mr. Delic revelled in this. He revelled in
4 what he could do, and what he could do, he did do, and
5 then he bragged about it. He used his baseball bat.
6 He used to his boot. He used his rifle. He used a
7 special electrical device. He used his sex and he used
8 his power. He used all these things to mistreatment
9 the prisoners themselves. Then he used his position as
10 a deputy commander to order others to do the same
11 things. A number of the detainees talked about hearing
12 Mr. Delic order guards to mistreat detainees. And
13 sometimes the detainees could actually watch Mr. Delic
14 as he watched the mistreatment or they could hear him
15 as he supervised and gave instructions.
16 Mr. Delic killed, tortured, raped, beat, and
17 what does the Defence suggest during the trial about
18 Mr. Delic's activities in the camp? The Defence
19 brought out that after a few months Mr. Delic got some
20 blankets and divided them up so each detainee had part
21 of a blanket. The detainee said, "Yes, that's true."
22 Fine, later when sentencing Mr. Delic for murdering,
23 raping and torturing, you can consider Mr. Delic once
24 gave them part of a blanket.
25 Mr. Landzo is charged with murders, tortures,
1 really almost any kind of mistreatment that can be
2 imagined, Mr. Landzo did it. His time in the camp was
3 an orgy of sadism.
4 Mr. Landzo agrees he committed many of these
5 crimes, but he says he is not responsible. In fact,
6 the Landzo Defence went so far as to claim, and I
7 quote, "The true victim of the aggression in this case
8 is Esad Landzo." If it wasn't so offensive it would be
9 almost comical.
10 We heard about him being pushed over by a
11 goat, and his asthma, and his hand, and his friendship
12 with stray dogs and his art school; and for all these
13 reasons and more the Defence says Mr. Landzo has a
14 personality disorder and post-traumatic stress
15 syndrome, and so he has diminished responsibility.
16 As a matter of fact and as a matter of law,
17 the Prosecution respectfully submits that the
18 submissions of the Defence should be summarily
20 The Prosecution agrees Mr. Landzo has certain
21 problems. Anyone who heard the testimony of the
22 victims would know Mr. Landzo had some problems. We
23 didn't need four psychiatrists to tell us that. But
24 lots of people and lots of criminals have problems.
25 The Defence points out Mr. Landzo was a young
1 lad and easily influenced. Prosecution agrees
2 Mr. Landzo was young, an adult, of course, but young,
3 and easily influenced. But the evidence shows that he
4 still had the ability to make his own decisions. And
5 he did make his own decisions. Lots of people and lots
6 of criminals are young and easily influenced. That
7 isn't a defence to responsibility.
8 There is nothing in Mr. Landzo's psychiatric
9 history or any other history that would excuse him from
10 responsibility or would serve to diminish his
11 responsibility. There is no doubt Mr. Landzo knew the
12 difference between right and wrong and he could control
13 his actions.
14 In fact, the evidence shows when it was in
15 his interest to do so, Mr. Landzo easily controlled his
16 actions. Mr. Landzo chose to follow orders to kill,
17 torture and otherwise mistreat prisoners, and he chose
18 to kill, torture and mistreat prisoners on his own
19 initiative; and he is responsible for his choices.
20 This is a man who told a defence psychiatrist
21 that he would inflict pain and suffering on prisoners
22 for two reasons: One, that he was ordered to do so;
23 and two, because he was bored and frustrated. He
24 stated he never had any difficulty doing this and that
25 he enjoyed it.
1 This is a man, Your Honours, who when asked
2 by his own attorneys, did you mistreat a particular
3 person, sometimes he said, "I did," sometimes he said,
4 "I think I did, I think I set that person's leg on
5 fire," and other times he says, "I can't remember."
6 This is a man who did so many terrible things
7 to so many different people he can't even remember them
8 all. Your Honours, this is a man who needs to be made
9 to take responsibility for his actions.
10 So, the evidence establishes that Mr. Delic
11 and Mr. Landzo committed many crimes over many months,
12 they did terrible things, and they need to be found
13 guilty. But the next question is: How were they
14 allowed to do these things? They and the many others
15 who committed horrible crimes, how were they allowed to
16 do it? How in an official military prison could so
17 many crimes happen over so many months? How could it
18 happen? Who let it happen?
19 And that's another question of
20 responsibility. The question of superior authority.
21 And it's a question that's a big part of this case and
22 a question that's a big part of why this Tribunal
23 exists. Because it's a sad truth that people like
24 Mr. Delic and Mr. Landzo exist everywhere, and that's
25 why there is a doctrine of superior authority. The law
1 which says to superiors, you have responsibilities to
2 find out what's going on and to prevent or punish
3 crimes, even if you, yourself didn't participate in the
4 crimes and even if you didn't order the crimes, even if
5 you're a good person who didn't want the crimes to
6 happen, even if you were busy with other important
7 matters; if you are a superior, you have certain
9 The exact nature of the responsibilities and
10 what kind of action should be taken will depend on the
11 circumstances, including the scope of the authority,
12 the nature of the misconduct, the avenues available to
13 prevent or punish. So what a superior is obligated to
14 do may differ, but that they are obligated to do
15 something is clear.
16 Mr. Delic, Mr. Mucic, Mr. Delalic all say
17 they weren't superiors. They more or less agree they
18 didn't do anything to prevent or punish what was going
19 on in the camp, but they say it wasn't their
21 Each of them says, "I was in some ways at
22 some time involved in the administration of the camp,
23 but I wasn't a superior." Mr. Delic says he was just a
24 deputy commander with no authority. Mr. Mucic says he
25 was just a commander or warden with no authority.
1 Mr. Delalic says he was just a coordinator and Tactical
2 Group commander who handled matters on other people's
3 behalf, but he had no authority.
4 The evidence, however, is to the contrary
5 with respect to each of the three accused. First,
6 Mr. Delic. The evidence shows that Mr. Delic had
7 authority over the guards. And when Mr. Mucic was
8 gone, as was frequently the case, Mr. Delic was in
9 charge with full authority. He exercised his authority
10 over the guards, but instead of preventing them from
11 mistreating the prisoners, instead of punishing them,
12 he chose to encourage them.
13 It's possible Mr. Delic's authority was not
14 entirely unfettered. It's possible he could not have
15 instantly discharged a guard. But it is clear he could
16 have taken any number of actions to prevent or punish;
17 reassigning the guards, confining them to barracks,
18 preventing them from contact with the detainees,
19 notifying the superiors, recommending the guards be
20 court-martialled, resigning.
21 But what did he do? When asked if he ever
22 advised his commander or others of what he had seen, he
23 indicated no, and he said, "There was no rule. It
24 wasn't important to anyone whether anyone would be
25 beaten or killed."
1 Mr. Mucic was commander in Celebici from
2 almost the beginning of the camp's existence. He knew
3 prisoners were mistreated, and the evidence suggests
4 that sometimes he wanted them mistreated. Other times
5 he may not have wanted it, but he didn't do anything to
6 stop it. Maybe sometimes he intervened to help a
7 friend, maybe he didn't like having the guards to
8 mistreat prisoners when he was there to see it; but
9 without any doubt he knew the prisoners were being
10 mistreated, including when he wasn't there.
11 And, of course, he wasn't there very much,
12 and one reason he wasn't there at night, as he said in
13 his interview, was because, "I was afraid of the guards
14 in the camp, and for that reason I never slept in the
15 camp." Three hundred persons or more were at the mercy
16 of the guards and the commander is too scared to sleep
17 there himself.
18 And what did Mr. Mucic do? Nothing. He
19 didn't take it seriously. In fact, it appears he
20 doesn't take much seriously, and normally that's his
21 own business; but when he was a superior, he had
22 people's lives in his hands, and he was legally
23 obligated to take his responsibility seriously, and he
25 In his interview he was asked what he had
1 done to prevent murders such as occurred when he was
2 commander. And he said, "I have no answer to that
3 question, nothing was done."
4 Mr. Mucic may not take what happened
5 seriously, Your Honours, but this Tribunal must.
6 Mr. Delalic is a more complicated case of
7 superior responsibility. Many of the victims were not
8 in a position to see who was Mr. Mucic's superior.
9 Mr. Mucic didn't testify, so we can't ask him as part
10 of the trial testimony. So, it's true that the case is
11 more complicated.
12 I submit to you that this is entirely normal.
13 It will be true in every case of command
14 responsibility before this Tribunal. And the higher up
15 the chain of command you go and the more intelligent,
16 the more savvy the superior, the more complicated the
17 evidence will be.
18 It doesn't mean the evidence is any less
19 convincing. It doesn't mean the evidence is not
20 sufficient to prove guilt beyond a reasonable doubt;
21 but the picture may be more complicated.
22 The Chamber has to look at a number of pieces
23 of evidence in different testimonies and draw necessary
24 inferences. And you have to look at evidence and fit
25 it together. Is it consistent with each other or
1 inconsistent? You have to use your common sense in
2 determining what is reasonable and what is not.
3 And it may well be that no one piece of
4 evidence will convince you. It may be that for any one
5 piece of evidence, or even more than one, other
6 reasonable or even unreasonable but still plausible
7 explanations exist. But the question is, when you put
8 the pieces of evidence together, do they fit? Do they
9 corroborate? Is there a reasonable explanation that
10 could fit all the different pieces of evidence
12 In this case, Your Honours, the Prosecution
13 submits that when you put all the evidence together,
14 there is only one conclusion that may be drawn. The
15 only reasonable conclusion that can be drawn from this
16 evidence considered together is that Mr. Delalic was a
17 superior authority regarding Celebici.
18 In fact, let me say even more. This is an
19 especially strong case of command responsibility. And
20 in saying that, let me talk for a minute about what we
21 have in this case. You have witness testimony and you
22 have much more. You have orders, including orders from
23 Mr. Delalic to Mr. Mucic. You have media interviews
24 with Mr. Delalic in 1992. You have video-tapes,
25 including video-tapes taken during 1992. You have
1 reports from international organisations. You have
2 documents from the army itself. You have release
3 papers from the prisoners. You have numerous documents
4 written by the accused himself concerning some of the
5 issues in dispute.
6 There have been and will be many command
7 responsibility cases where only a few of these things
8 exist, but here you have all of them. And this
9 evidence, and all the other evidence that came out in
10 the trial put together, establishes that Mr. Delalic
11 was a superior.
12 Some of the evidence may be -- some of the
13 pieces of evidence may be small, some big, some may be
14 direct, some may be circumstantial; but all of it fits
15 together and leads to an inescapable conclusion, that
16 Mr. Delalic was a superior.
17 The Defence has offered explanations for much
18 but not all the evidence, and the Prosecution suggests
19 the explanations are incredible. We ask the Chamber to
20 use its common sense. One might be able to accept one
21 or two, but it is impossible, absolutely impossible
22 that all these varied and different pieces of evidence
23 from all different sources all pointing to one
24 conclusion, it's impossible to believe they are the
25 result of some unfortunate coincidence. It defies
1 common sense. It defies even the imagination.
2 The Defence suggests Mr. Delalic is playing
3 dress up and pretending to be in command when he is
4 shown in video exercising command. The Defence
5 suggests the supreme command would have appointed
6 Mr. Delalic to lead Tactical Group 1, tasked with
7 lifting the siege of Sarajevo, the most important
8 priority at the time. Even though, according to the
9 Defence, he had been a civilian with no prior command
11 Defence suggests that the order of
12 appointment, which says he has certain authority and
13 would be consistent with the importance of his task,
14 doesn't mean what it says it means.
15 The Defence suggests that different
16 journalists, all of them made mistakes when they acted
17 like he was commander or involved in Celebici. Defence
18 suggests the Red Cross made a mistake when they thought
19 Mr. Delalic was in charge. The Defence suggests the
20 Bosnian army made mistakes in December of 1992 when
21 they thought Mr. Delalic was in charge. The Defence
22 suggests a number of Delalic's friends were lying when
23 they said he was in charge in the seized material.
24 The Defence suggests Mr. Mucic was mistaken
25 or lying in 1992, during the camp's existence, when he
1 told people that Mr. Delalic was in charge and making
2 decisions. Defence suggests Mr. Mucic was lying when
3 he wrote down later on that Mr. Delalic had been his
4 superior. Defence suggests that Mr. Delalic was lying
5 when he wrote down in a number of different documents,
6 some of which had nothing to do with countering any
7 propaganda campaign; they suggest Mr. Delalic was lying
8 in all of it.
9 And, of course, the Defence suggests that
10 when Mr. Delalic signs orders which say "I order you to
11 do this, and you are responsible to me for
12 implementation of this order," it doesn't mean
13 Mr. Delalic is actually ordering something; as
14 Mr. Delalic said in his interview, "That's just a
15 typing mistake."
16 The Defence then also suggests that when
17 Mr. Delalic's friends testify that he was not in charge
18 of Celebici, these friends are now neither mistaken nor
20 And consider the Defence witnesses for a
21 minute. I don't have time to discuss them
22 individually, but I would like to as a group. The
23 Defence witnesses would have you believe no one was in
24 charge of Celebici, either de jure or de facto.
25 The Defence witnesses all corroborated the
1 evidence of the Prosecution, that there were no
2 regulations on who should run prisons in 1992. The
3 Defence witnesses agree it was a military prison and
4 they agree that the MUP and the HVO withdrew early in
5 the camp's existence. And the Defence witnesses agreed
6 even though many of the guards were from the TO, the TO
7 generally did not run the camp, in fact.
8 So Defence suggests no one was in charge of
9 the camp. It just existed for more than six months
10 without anyone supervising it and without anyone having
11 superior authority.
12 The Prosecution submits this is incredible as
13 a matter of common sense and further the Prosecution
14 submits that this is contradicted by the evidence, the
15 evidence shows someone was in charge in fact, and
16 someone gave instructions to the persons who worked
17 there and someone signed release documents for the
18 prisoners, someone dealt with outside bodies, including
19 media and international organisation, someone gave
20 orders to the camp command and that someone was
21 Mr. Delalic. I want to ask you specifically to
22 consider one last thing when evaluating the credibility
23 of the Defence witnesses and the weight to be given
24 their testimony. These witnesses testified with great
25 authority that Mr. Delalic did not have authority over
1 Celebici. But they also said, when asked in
2 cross-examination, that they did not know who was in
3 charge of Celebici. These witnesses were also not in a
4 position to know all of Mr. Delalic's responsibility or
5 activities. So how could they say he didn't have any
6 authority? Your Honours, the most these witnesses
7 could have said is, credibly said, was that they didn't
8 have any information that Mr. Delalic was a superior
9 over the camp.
10 But for a minute let's accept much of the
11 Defence testimony, we'll accept Mr. Delalic's authority
12 as coordinator and TO soldier and later as Tactical
13 Group commander was not such that it would have
14 normally encompassed Celebici camp. Let's accept the
15 defence suggestion that is with respect to those
16 instances where we see Mr. Delalic involved in the camp
17 and even exercising authority, in all these different
18 instances, that he was acting on behalf of others. So,
19 when he gave instructions to the investigation
20 commission, that was on behalf of the TO and the HVO
21 and the war presidency, when he signed release
22 documents, that was on behalf of the TO commander, and
23 he gave interviews about Celebici, that was on behalf
24 of unidentified authorities who couldn't be located.
25 When he dealt with the Red Cross, that was on behalf of
1 the supreme command and, of course, when he gave orders
2 to the Celebici command, that was on behalf of the
3 supreme command. If one accepts all this, all it does
4 is show that Mr. Delalic's authority over Celebici was
5 delegated to him by others. It shows that others share
6 in the responsibility. It shows his authority may have
7 arisen out of the needs of the situation rather than
8 out of his inherent authority. But it still shows that
9 he was a superior regarding the camp.
10 Let's go further. Even if one accepts that
11 Mr. Delalic was not delegated full authority over
12 Celebici, he was not made the direct superior of
13 Mr. Mucic and he could not himself have dismissed him
14 or others under him. Even accepting these
15 propositions, under the law he is still a superior. By
16 his involvement in the running of the camp, by his
17 authority and influence, he still had certain
18 responsibilities and under well established law, he has
19 liability as a superior. Others may share that
20 responsibility, and it may well be that his ultimate
21 sentence should reflect the limits of his authority and
22 the shared nature of it, but that he has liability as
23 an authority, we submit, is clear.
24 Again, I'm not going to review the law in
25 detail, but as seen in our written submissions, even
1 persons lacking authority to control directly the
2 conduct of forces can be liable under superior
3 authority where other means of preventing the
4 commission of offences exist, including by reporting to
5 others or even by resigning. A number of cases
6 submitted, cited on pages 196 to 200 of our brief,
7 Mumenthey, Roechling, Muto, found superior authority in
8 analogous situations, including where the authority was
9 a civilian with no ability to fire the guards, but who
10 was a definite integral and important figure in the
11 whole concentration camp set up.
12 Here, it cannot be doubted that Mr. Delalic
13 was a part of the Celebici camp and he did nothing.
14 Even just taking the things he did, he was involved in,
15 although he was a person to direct the investigation
16 commission, he did nothing to ensure that they were
17 able to finish its work or to find out why they didn't
18 finish their work.
19 On two different occasions when he was
20 approached concerning specific prisoners who were in
21 danger of being murdered or dying, he became involved
22 in getting three of them released, but he did nothing
23 to find out about the 300 or more others who obviously
24 were still in peril. When he was interviewed on
25 Bosnian television refuting reports that conditions
1 were bad in Celebici, he did nothing to ensure that the
2 information he gave was accurate. When he ordered the
3 TO commander and then Mucic to finally do a legitimate
4 classification of the prisoners, he did nothing to
5 ensure that the order was carried out and, in fact, the
6 order was not carried out until January of the next
7 year. And when Mr. Delalic received the reports of the
8 Red Cross, including the first reports which, according
9 to his own admission in his OTP interviews,
10 specifically talked about Hazim Delic mistreating
11 prisoners, he did nothing to investigate or to stop
12 Mr. Delic from doing this in the future. When asked
13 about this, he said, "I sent these reports to further
14 instances, and I did not consider it very important for
15 myself because I dealt with other things which were
16 much more important."
17 Now, it cannot be doubted that Mr. Delalic
18 could have done any number of things, including making
19 inquiries, conducting an investigation, giving
20 additional instructions, writing a report and even
21 resigning. But Mr. Delic did none of these things, he
22 was involved, he was an integral part of the oversight
23 of this camp, and he did nothing.
24 When earlier today I asked, well, how could
25 these things happen in Celebici for so long without
1 anyone doing anything, it's because many persons,
2 including Mr. Delic, Mr. Mucic, and Mr. Delalic did
3 nothing. And given their positions, the law of
4 superior authority says they had to do something.
5 To adopt the Defence suggestions that persons
6 such as these three accused were not superior
7 authorities and thus were not obliged to do anything
8 would be to set out international law to its state
9 prior to the second World War, if not even before
10 that. To adopt the Defence suggestions would be to
11 render superior authority inapplicable to much of what
12 happens in today's world. Among other things, it would
13 render international humanitarian law impotent over
14 situations with paramilitaries. It would render it
15 impotent over situations where the structures of the
16 armies are still evolving. It would render it impotent
17 over a situation where there is shared control of
18 subordinates, but that is not the state of the law
19 today, nor should it be. Indeed, such an approach
20 would only encourage persons to ensure that lines of
21 authority were shared or undefined or unwritten so that
22 no one could be charged with responsibility.
23 In conclusion, Your Honours, the evidence is
24 there, the law is there, and the responsibility is
25 there. All four accused bare responsibility for the
1 crimes in Celebici. The evidence has established their
2 guilt beyond a reasonable doubt and we respectfully
3 submit it is the duty of this Tribunal to convict each
4 of them. Thank you.
5 JUDGE KARIBI-WHYTE: You are going to reply
6 in the order of which the accused have been charged.
7 MS. RESIDOVIC: Your Honours, as you allowed
8 us at the beginning of this trial, the Defence
9 attorneys have decided upon the order in which they
10 will be speaking before this Trial Chamber. And, in
11 that sense, we would be using the time as rationally as
12 possible and to present each of the aspects of the
13 defence as best as possible. In that sense, Your
14 Honours, we felt that we would hear the defence for
15 Mr. Delic, Mr. Tom Moran first, after hearing
16 Mr. Moran, the defence of Mr. Delalic would take the
17 floor and then Mr. Mucic's Defence counsel, and we
18 would wind up by the Defence counsel of Mr. Landzo if
19 that is acceptable to Your Honours.
20 JUDGE KARIBI-WHYTE: It's perfectly
21 acceptable as long as it suits your presentation of
22 your submissions.
23 MR. MORAN: Judge Karibi-Whyte, Judge
24 Odio-Benito, Judge Jan, may it please the Court?
25 JUDGE KARIBI-WHYTE: You may proceed.
1 MR. MORAN: Yes, Your Honour. First, with
2 the help of the usher, last night I was trying to edit
3 my speech down and I figured the easiest thing to do
4 was just give the Trial Chamber a copy of my outline.
5 I want to do this quickly and see if I can give you
6 some time back. Just for the ushers knowledge, the top
7 four copies are correctly paginated, the last ones,
8 pages 24 and 25 are reversed. I apologise for that.
9 The interpreters have been provided copies. There are
10 extra ones if they want and ones there for the
11 Prosecution also.
12 Your Honour, I've been tagged by my
13 colleagues to discuss the law with you. And, of
14 course, I'm welcoming questions, I think those are
15 clearly appropriate, and as you will see from my
16 outline the first thing I would like to discuss with
17 the Trial Chamber is the burden of proof. There seems
18 to be some confusion in at least the Prosecutor's
19 written submission in that the Defence presented no
20 evidence on something, there is no contention, that
21 this is not true. It's my opinion, and I think it's
22 the law, that the Prosecutor has the burden of proving
23 all elements of each offence, beyond a reasonable
24 doubt. That we have absolutely no obligation to do
25 anything, that the Defence lawyers could have sat here,
1 not said a word this entire trial and the presumption
2 of innocence should be sufficient to convict us -- or
3 excuse me, to acquit us. I'm sorry, Judge, it's been a
4 long day. I was up until 3.00 this morning. I
6 Mrs. McHenry said something that struck me,
7 and I am just going to quote it out of my notes: "When
8 it this is done and when the persons prove to be
9 responsible for violations of the law are convicted,
10 justice will have been achieved." Your Honours,
11 justice is achieved when justice is an achieved. No
12 Prosecutor has ever lost a case, their job is to see
13 that justice is done. If there are a acquittals on all
14 defendants on all counts, the Prosecutor has won the
15 case, because they did not prove it beyond a reasonable
16 doubt and justice has been done. Justice and
17 convictions are two different things.
18 Beyond a reasonable doubt, I have prepared a
19 chart. Actually, with the help of the usher, this is a
20 chart that I've used before to remind people about what
21 is beyond a reasonable doubt. And it simply shows the
22 various levels of evidence. And what it take to get to
23 a guilty. And it starts off with no evidence at all.
24 And it goes to a scintillae of evidence, just the
25 tiniest bit of evidence, and that's a not guilty, or
1 reasonable suspicion, where there are specific facts,
2 that's a not guilty. It goes all the way up to clear
3 and convincing evidence that it's a firm belief that
4 the allegations are true And, under our system, that
5 still is a not guilty. To get to a guilty, you have to
6 go to the very top step on that chart, and that's proof
7 that is so convincing that you would rely on it without
8 hesitation in the most important of your own affairs.
9 That's typical form in the United States as you've seen
10 in my written submission. I understand in Britain the
11 definition is: Are you sure? And you have to ask
12 yourself when you retire to deliberate: Are you sure?
13 In the High Command case, the trial court
14 said when there is ambiguity in testimony or
15 uncertainty as the defendant's connection as the
16 transactions to rely upon to establish guilt, we have
17 followed the well-recognised principle of common law
18 and have accorded to the defendants the benefit of the
19 doubt. That, I believe, is what any court should do.
20 When there is a doubt, when there are ambiguities, it
21 goes to the defendant.
22 Credibility of witnesses. One of the
23 toughest jobs any fact-finder has is judging witness
24 credibility. I am an advocate. They're advocates. We
25 see things through our set of glasses. And, as judges,
1 it's your job to look at things neutrally and
2 detached. To judge that credibility. I have suggested
3 in my written submissions, a few things that I think
4 may help you judge credibility of witnesses.
5 The Prosecutor says the procedures here are
6 foreign and intimidating to some of these witnesses.
7 Well, except for professional witnesses, procedures in
8 every court are foreign and intimidating to every
9 witness, every citizen who witnesses a robbery or is
10 involved in a traffic accident, has to come down to the
11 court house to testify.
12 Language problems. That's something that
13 cuts both ways. Everyone has the same language
14 problem. You've heard probably a hundred times in this
15 trial, there is an interpretation problem.
16 When you go back, I want you to recall, there
17 is a book out about the title of which is, "Truth is
18 the first casualty in a war." We're talking about a
19 trial that arose during a war. And not only that, but
20 we're talking about a situation where people who were
21 involved in that war are still in power in various
22 countries. They have power in Bosnia-Herzegovina there
23 and power in Croatia there and power in the Federal
24 Republic of Yugoslavia. Each one of them, each one of
25 those parties has its interests and it has its people
1 and there may be hidden agendas out there. And I think
2 you should look at that.
3 Prior statements. I think you can look at a
4 witness' prior statement to see if it's consistent. To
5 see how it flows with what he said on that witness
7 Evasiveness. I cited Judge Karibi-Whyte in
8 my written submission where there was somebody who just
9 didn't want to answer a question and Judge Karibi-Whyte
10 said, this is becoming common in this trial or words to
11 that effect. I have got the exact cite there. All of
12 those things show whether or not a witness is telling
13 the truth. Then you have on at least a couple of
14 occasions, direct contradictions between Prosecution
15 witnesses. The best example, and it's one that I have
16 cited and one that I am relying upon is between
17 Grozdana Cecez and Witness T. The Prosecution brought
18 both of these witnesses to you. And they said these
19 are witnesses for the truth. We're bringing them here
20 because they're going to be witnesses for the truth.
21 And what happened? Ms. Cecez said Witness T raped me.
22 And Witness T said it's a made up story. Who are you
23 to believe?
24 Another incident of direct contradiction
25 involved two of the Prosecution expert witnesses:
1 Professor Economides and Professor Gow, related to the
2 end of the Socialist Federal Republic of Yugoslavia.
3 On re-examination, Mr. Niemann brought out that from
4 Professor Economides that the SFRY didn't end until
5 April -- or, excuse me, until September 1992. Why was
6 that? So it would show dual citizenship. What does
7 Professor Gow say? No. The latest possible date was
8 April 27th, 1992. Why is that important? Again, it
9 shows direct contradictions between the Prosecutor's
10 witnesses. People they brought you as witnesses for
11 the truth.
12 Prisoner of war status. I frankly find this
13 rather incredible. I have cited in my written
14 submission several cases, I think seven or eight.
15 Where if you are to believe that these people or any of
16 them were prisoners of war under the conventions, you
17 have to believe, and the Prosecutor has to convince
18 you, that their own witnesses are not credible. That
19 has to be the Prosecutor's position. Because those
20 people testified in such a way that they could not be
21 prisoners of war. I find this just -- something I have
22 never seen before. Where they're making a legal
23 argument which is based on the incredibility of their
24 own witnesses. Incredible stories. If a witness tells
25 an incredible story, you shouldn't believe him.
1 How about Risto Vukalo? He sat in that chair
2 right over there and he told you that a statement from
3 him to the Office of the Prosecutor was coerced because
4 of the guards. That he was afraid that the same thing
5 was going to happen to him that happened in Celebici.
6 And he would have said milk was black. I don't believe
7 that their investigators had great big hulking guards
8 there to threaten people to get witness statements.
9 Bronco Sudar, the man who testified about the
10 ghastly things that happened to him in the Celebici
11 camp. And then you found out he could have left, but
12 decided to stay. That ought to be very, very helpful
13 in judging his credibility.
14 I suggest to you there are two witnesses who
15 are very credible: One of theirs and one of mine.
16 They're credible because they're neutral. Esad Harraz,
17 the Egyptian journalist. They called and put on the
18 stand as a witness for the truth. He is the only
19 person who testified in this trial who was in the camp
20 at the applicable times and is neutral, who does not
21 have an axe to grind. What did he tell you about those
22 conditions in that camp? He didn't see any prisoners
23 that were beaten. He didn't see any evidence of
24 starvation. He didn't see any mistreatment and he
25 didn't take part in any mistreatment. Medical supplies
1 in Building 22 appeared to be about right for the
2 number of patients. Now, that, one, goes to the fact
3 of the case. There is something else that goes to
4 credibility of witnesses. Because several witnesses,
5 Witness M, Miro Golubovic, Novica Dordic, Risto Vukalo
6 and Witness J and Witness R, sat on that witness stand
7 and told you that the Arab television crew either
8 filmed beatings or participated in them.
9 Another witness, I think is the witness for
10 the truth is Eduardo Bellas. Dr. Bellas was brought
11 here to talk about the scientific evidence. If the
12 Prosecution witnesses had been telling the truth, if
13 their testimony was factual, what in all likelihood
14 would have been the scientific results of that kind of
15 treatment? And what did he tell you? There would have
16 been infectious diseases. You don't have to be a PhD
17 in epidemiology to figure out that if people are eating
18 food with faeces on it, drinking water with pieces of
19 faeces in it, that you're going to have infectious
20 diseases. You didn't hear any testimony about massive
21 outbreaks of infectious disease.
22 Heat stroke. The kinds of temperatures, the
23 water, lack of water that the Prosecution witnesses
24 testified about. A litre and three or four people have
25 to share it. You would have had dead people from heat
1 exhaustion. Where are they? You didn't hear about
3 Esad Landzo, special case. The Prosecutor
4 can't decide whether Esad Landzo is a truth teller or
5 he is not a truth teller. Part of the time in their
6 written submission, they say he is a liar. And part of
7 the time they rely on him, his testimony for the truth
8 of the matter. I suggest as to Esad Landzo's
9 testimony, the Prosecutor ought to pick a horse and
10 ride it. He is either a truth teller or he is not and
11 you know my position.
12 Let's talk about the statute of the Tribunal
13 for a second. The actual statute itself and what it is
14 and what it does. There seems to be some confusion, at
15 least on the Prosecution side and maybe on my side as
16 to what the statute of the Tribunal is. In my view,
17 and I think the view of the Secretary-General and
18 security counsel. The statute of the Tribunal does not
19 create crimes, does not define crimes. Does not create
20 any substance of offences. If it did, my client is not
21 guilty because the statute was not passed until about
22 six months or seven months after the last offence
23 alleged in the indictment. What the statute of the
24 Tribunal does is it sets up a court. It sets up a
25 Tribunal to hear allegations of some types of
1 violations of pre-existing international law. Statute
2 doesn't create law. The knew Rome statute does. The
3 statute that was passed in Rome last month, creates
4 law. It creates offences, defines offences. It does
5 that because it's a treaty process which most of the
6 nations of the world, most of the civilised nations
7 have agreed to.
8 JUDGE JAN: That is quite right. He comes
9 from the United States, that is quite right.
10 MR. MORAN: Your Honour, some day we'll talk
11 about Jesse Helms.
12 The security counsel is not a legislative
13 body -- or, for that matter, the general assembly does
14 not have the authority to do this on its own, to define
16 Another area is this: The Prosecutor has
17 failed to prove, failed to present any proof that the
18 Geneva Conventions and their protocols or their
19 protocols were, in effect, and applicable to these
20 defendants. I know that sounds crazy, but that, in
21 fact, is the truth. And Professor Bassiouni says that
22 Bosnia-Herzegovina acceded to the conventions on
23 December 31st, 1992. They were not applicable as
24 conventional, international law.
25 International armed conflict. We beat this
1 thing to death. Just one thing I would point out to
2 the Trial Chamber and then I'll move on to something
3 else. In Paragraph 6.83 of the Prosecutor's submission
4 they talk about a May 22nd, 1992, agreement under
5 common Article 3 of the conventions. What they're
6 saying is that the parties expected the grave breaches,
7 clauses and provisions of the conventions to apply.
8 Well, if you take a look at what the Prosecutor says in
9 that paragraph, it says that the parties to the
10 conflict were the government of the Republic of
11 Herzegovina, the SDA party, SDS party, the Serb party
12 and the Croatian party. Nowhere in that agreement on
13 May 22nd, 1992, do you see anybody except Bosnians.
14 That's their argument.
15 They're not happy with the Appeals Chamber
16 ruling and the Trial Chamber ruling in the Tadic case.
17 It's the law. I would suggest also that the member for
18 commission on experts did say that after May 1992, when
19 the JNA was ordered to split and all those events
20 occurred, it became an internal armed conflict at the
21 times applicable to this case. It's cited in my
22 written submission, Commander Fenrick, who I believe
23 the Prosecutors are familiar with, to his government,
24 the Canadian government, suggested that prior to April
25 6th, 1992, when Bosnia became an independent state, it
1 was an internal armed conflict. April 6th through May
2 19th, international armed conflict became internal
3 armed conflict again on the 19th of May. Why is this
4 important? Well, obviously it's important to their
6 It's something else. It's important for
7 another reason. This Court is not a court of general
8 jurisdiction. This is a court of limited
10 JUDGE KARIBI-WHYTE: Why don't you say
11 special jurisdiction?
12 MR. MORAN: Your Honour, the phrase we would
13 use in my country is limited. I think, probably,
14 special better. This Trial Chamber does not have the
15 right to, for instance, hear a case for a genocide in
16 Rwanda. The Prosecutor as the plaintiff, bears the
17 burden of showing, proving, that this Trial Chamber,
18 this Tribunal has jurisdiction. They made a
19 jurisdictional allegation in their indictment,
20 international armed conflict. I would submit to you
21 that if they don't prove international armed conflict,
22 they have failed to prove that this Tribunal has
23 subject matter jurisdiction.
24 Why else is it important? Obviously for the
25 Article 2 counts.
1 JUDGE KARIBI-WHYTE: Actually is that what
2 Article 1 gives the courts?
3 MR. MORAN: Article 1 sets out the Tribunal's
4 jurisdiction. But international armed conflict is also
5 important for the Article 2 counts in the indictment.
6 The Prosecutor said that we would have that read
7 narrowly. You bet we would. We would have the words
8 of the Geneva Convention be interpreted to mean what
9 they say on paper. That the plain language of the
10 Statute be interpreted or be applied. We say that when
11 the Geneva convention on civilians says, in the hands
12 of a party of which they are not nationals, that's what
13 it means. It doesn't mean identification with a
14 different side or anything else. It means what the
15 parties to the convention agree to. Nothing more,
16 nothing less.
17 In a hostages case, another thing that the
18 Court there said is that criminal laws are to be
19 interpreted narrowly. That that is the way that
20 criminal law should be interpreted. We're asking you
21 to interpret it like it's written and if that's narrow
22 and if the Prosecutor isn't happy about that, then
23 maybe the Prosecutor ought to be in Geneva talking to
24 the Red Cross about having the Geneva Conventions of
25 2001 and to change them. You should interpret the laws
1 as they're written.
2 Common Article 3. The Trial Chamber is well
3 aware, it's my position, it was Mr. Ackerman's position
4 when he was here, it was everyone's position that at
5 least prior to the adoption of the Rwanda statute there
6 was no indication that common Article 3 provided for
7 individual criminal liability. I think that the new
8 Rome statute makes that even clearer. That when it
9 lists crimes, the Rome statute does two things with
10 common Article 3; one, it talks about laws and customs
11 of war, and then it goes on to talk about common
12 Article 3. The second thing that the Rome statute does
13 is recognise the common Article 3 applies for
14 individual criminal liability only in internal armed
15 conflicts. Just like it says in the conventions. The
16 Prosecutor would give a very, very broad reading. I'll
17 admit that under the Tadic appeals' decision, it's
18 clearly a legitimate reading. In fact, it's probably
19 consistent with what the Tadic court said. I would
20 just assert that it is wrongly decided. Now, I think
21 you're bound by it. But I think I also have to raise
22 the issue here in order to ask the Appeals Chamber to
23 reconsider in Tadic.
24 I would suggest to you that there is no proof
25 that's been presented to this Trial Chamber, or, for
1 that matter in the Tadic case, that the nations of the
2 world have adopted as customary, international law,
3 individual criminal liability for violations of common
4 Article 3. The one case, and I am scared to cite this
5 case -- because I am probably talking to its author --
6 the one case that the Appeals Chamber cited from that
7 proposition was from the Nigeria Supreme Court, a 1972
8 case. I pulled the case and read it. It appeared to
9 me that the defendant in that case was charged under
10 Nigerian law with murder. That the Supreme Court
11 simply mentioned in passing that international law
12 doesn't allow you to murder people during conflicts.
13 Even if common Article 3 provides for individual
14 criminal liability, there has to be some evidence
15 before the Trial Chamber, if it's customary
16 international law, who is protected? Who do the
17 nations of the world believe that international law
18 requires them to protect under common Article 3 as
19 customary international law during an international
20 armed conflict? There is zero evidence of that. The
21 Prosecutor bears the burden of showing you that
23 I would suggest that common Article 3 as
24 applied to international armed conflict provides most
25 people with very little protection and, in fact, does
1 not provide any protection to most people. It's clear
2 that the authors of the convention chose not to
3 interfere with the right of a nation, at least in an
4 international armed conflict to deal with its own
5 nationals. That's why the definition in Article 4 of
6 the convention on civilians is written the way it is.
7 In fact, dictator's commentary says that. "The
8 convention remains faithful to the recognised principle
9 of international. It does not interfere in a states'
10 relations with its own nationals." When you think
11 about it, it really is pretty logical.
12 In an internal armed conflict, which is what
13 common Article 3 was designed and written to regulate,
14 the presumption that a government protects its own
15 people falls. The government is fighting with its own
16 people. So there has to be some international law
17 protection there. When governments engage in crimes
18 against humanity and genocide, there is international
19 law protection there to protect people from their own
20 governments. To protect the Jews from the Nazis. But,
21 generally, it is not the business of international law
22 on how the United States government treats me or the
23 Australian treats Mr. Niemann. That is between us and
24 our government, so long as they don't engage in
25 genocide and crimes against humanity.
1 I would suggest that the class of people who
2 are protected by common Article 3 in an international
3 armed conflict are very narrow indeed. That would
4 include such things as nationals of neutral states that
5 have diplomatic relations with the parties. Or
6 possibly nationals of states who are not bound by the
7 Geneva Convention on civilians, therefore, depriving
8 their own nationals of protection when they're in other
9 countries. Protected persons.
10 The Prosecutor has to prove two things: One,
11 they have to prove beyond a reasonable doubt there is
12 international armed conflict. The second thing that
13 the Prosecutor has to do as a matter of law is show
14 that the individual named as a complainant in that
15 indictment was a protected person under the
16 conventions. The Prosecutor seems to try and mull
17 this, that you don't have to decide the nationality of
18 each person. They've said that and they've said that
19 and they've said that. The fact that those people are
20 protected or not protected is an element of the
21 Prosecutor's offence. They're trying to shift the
22 burden of proof to us. They're trying to avoid having
23 to prove the elements of their case and meet their
24 burden of proof. They want to ignore the plain wording
25 of the convention.
1 There is no evidence before this Trial
2 Chamber. None. Zero. That the people who were named
3 in that indictment were not nationals of the Republic
4 of Bosnia-Herzegovina. None. The Prosecutor says the
5 evidence led by the Defence on the actual citizenship
6 of detainees is relevant and is not required to show
7 that they were not non-nationals of
8 Bosnia-Herzegovina. That's contrary to what Dr.
9 Economides told you, their expert. That's contrary to
10 law. They know it is. They bear the burden of proving
12 If you look at paragraph 2 of the indictment,
13 the Prosecutor says: Beginning in the later part of
14 May, 1992, forces consisting of Bosnian Muslims -- it's
15 on page 9 of my outline Your Honour -- and Bosnian
16 Croats attacked and took control of those villages
17 containing predominantly Bosnian Serbs. Why do we call
18 them Bosnian Serbs? Why does the Prosecutor call them
19 Bosnian Serbs? Because they're Bosnians. That's why.
20 That is not only a judicial admission, that is their
21 assertion. They are asserting to you that they are
22 Bosnian Serbs. Bosnians.
23 Paragraph 76 of the Tadic appellate
24 decision. When you look at paragraph 76 of the court's
25 appellate it has a hypothetical. That decision was
1 handed down about five or six months before the
2 Celebici indictment was returned. And, lo and behold,
3 the hypothetical used by the Appeals Chamber is
4 Celebici. Bosnian Serbs in the hands of the Bosnian
5 government. And what does the Appeals Chamber say in
6 the hypothetical? Not an Article 2 violation because
7 they are not in the hands of a party of which they were
8 not nationals.
9 The Prosecutor doesn't like it, doesn't have
10 to like it. That's what the Appeals Chamber says,
11 that's what the law is. This identified with a
12 nationality, shouldn't be considered nationals
13 argument, it doesn't have any foundation in the law.
14 It's a request to ignore the plain wording of
15 Article 4 of the Geneva Convention on civilians it's a
16 request for you to ignore Pictet's commentaries. They
17 say the conventions don't have a definition of
18 nationality. Of course it doesn't. Nationality is a
19 term of art in international law. It has a meaning, we
20 all know what that meaning is. It has a specific
21 meaning, Dr. Economides told you what it is. Then they
22 try to confuse, I think, confuse the issue by citing
23 the Belsen case. The Belsen case involved Polish
24 nationals who were charged with and convicted of war
25 crimes against nationals of other allied powers in the
1 Bergen Belsen concentration camp.
2 And the Prosecution takes the position this
3 shows you can be convicted of war crimes against people
4 who are on the same side of a war that you're on or the
5 same nationality you are. Sure it does. But it
6 ignores, fails to mention the factor in the hands of a
7 party to the conflict of which they were not nationals.
8 The Bergen Belsen concentration camp was a
9 German camp, and the Poles and the French and the
10 English and the Americans in that camp were in the
11 hands of a party to the conflict of which they were not
12 nationals. Germany. They were in the hands of the
13 other side. It was a German camp run by the Germans.
14 The Prosecutor makes, in paragraph 6.93 makes
15 a policy argument that if you're going to hold Bosnian
16 Serbs guilty of grave breaches against Bosnian Muslims,
17 presuming the Prosecutor can ever get around to proving
18 an international armed conflict, then it ought to work
19 the other way around.
20 The Prosecution's position in the Tadic case,
21 and I agree with their proposition of law, I just
22 disagree with their factual analysis. But their
23 proposition of law was that the Republic of Srpska and
24 its army were controlled by the agents of the Federal
25 Republic of Yugoslavia. If that is true, then the
1 Bosnian Muslims who were in Omarska and the other
2 places were in the hands of a party of which they were
3 not nationals, the Federal Republic of Yugoslavia.
4 Paragraph 76 of Tadic, since it cannot be
5 contended that the Bosnian Serbs constitute a state.
7 Secondly, our position is consistent with the
8 nationality position, citizenship position taken in the
9 Dayton Accords. Article 7A of the Bosnian
10 constitution, the Dayton Accords, says all citizens of
11 either the Republic of Srpska or the Federation are
12 citizens of Bosnia-Herzegovina. 7C says that everybody
13 who was a citizen of Bosnia-Herzegovina immediately
14 before the date of the Dayton Accords are citizens of
15 BH, and it provides for dual nationality.
16 The entire purpose of the Dayton Accords was
17 to arrive at peace by having one country. This
18 Tribunal is a creature of the Security Council to do
19 what; bring about the restoration of peace in the
20 Republic of Bosnia-Herzegovina.
21 It would be ironic as anything if this
22 Tribunal were to make a decision on a matter of law
23 which is contrary to the Dayton Accords which is the
24 agreement to bring about peace.
25 Those people in the Celebici camp were
1 Bosnian nationals, or even if they weren't, the
2 Prosecutor has not proved they were not.
3 Identification with either side does not make any
5 Finally, on this issue, if you take their
6 argument about people being associated with one side or
7 another, really what you're doing is you're having a
8 charter of rights for aggressors.
9 Adolf Hitler in 1938 could have said the
10 people in the Sudetenland are Germans,
11 they're identified with Germany, and I'm going to send
12 the Wehrmacht in to help my Germans, to protect
13 my Germans.
14 Slobodan Milosevic could take their argument
15 and say those Bosnian Serbs are identified with the
16 Federal Republic of Yugoslavia, I have to send the
17 tanks into Bosnia-Herzegovina to protect my people.
18 Identification with one side, ethnicity, no difference.
19 Nationality. Prisoners of war.
20 As I mentioned earlier, I find this argument
21 amazing. Article 4 of the Geneva Convention, on
22 prisoners of war, defines who is a prisoner of war.
23 One of the things they have to show, Article 4
24 paragraph 2 of the Geneva Conventions on prisoners of
25 war, page 13 of my outline; if they are a partisan
1 movement, they have to belong to a party to the
2 conflict. Which party to the conflict did the
3 Prosecutor prove beyond a reasonable doubt these people
4 belonged to? Which one? I haven't heard.
5 There's no showing that these people were in
6 anybody's regular army. There's no showing of a chain
7 of command with a commander responsible for his
9 Testimony of the Prosecutor's witness negates
10 prisoner of war status, I lay it out in my written
11 submission. Levee en masse: A levee en masse is where
12 people rise up spontaneously to stop the invader.
13 How can Bosnia-Herzegovina invade
14 Bosnia-Herzegovina? That's right out of the Wizard of
16 International humanitarian law tries to split
17 people into two groups, basically; combatants and
18 non-combatants, when it comes to how wars are waged.
19 And combatants are legitimate targets. When I wore a
20 green suit and I was carrying an M-16, I was a
21 legitimate target. And that guy wearing a different
22 uniform and carrying an AK-47 was a legitimate target.
23 And you try to keep those groups separated from people
24 who are non-combatants. And to the extent possible,
25 international humanitarian law requires that
1 non-combatants be protected.
2 If you look at the Hostages case, it talks
3 about legitimate combatants and illegitimate
4 combatants. And if you do not come under the
5 definition of a combatant in Article 4 of the Geneva
6 Conventions, and presuming the protocols apply under
7 Protocol I, you do not have the right to engage in
9 The Prosecutor is trying to blur this
10 distinction. And when you blur this distinction, what
11 are you going to have? You're going to have legitimate
12 combatants who are worried about being shot in the
13 back, they are going to shoot first and ask questions
14 later. You cannot let the line between legitimate
15 combatants and non-combatants be blurred.
16 Command responsibility. Prosecutor accuses
17 me of giving an incredibly narrow reading to the
18 Article 2, the types of offences that can be charged
19 under Article 2. They have given an incredibly broad
20 meaning to the word superior, I mean, just incredibly.
21 Everybody is a superior.
22 There seems to be some confusion over what a
23 chain of command is. In their submission, their
24 written submission, they talk about a chain of command
25 in a way that I believe is inappropriate. A chain of
1 command -- well, command responsibility began as the
2 liability of a military commander to control his
3 troops. And it says that he is liable under
4 international law if he fails to carry out his duty to
5 prevent his people from committing war crimes.
6 That's all command responsibility is about.
7 It's nothing magic. That's that duty on that
8 commander. Now, since World War II, in fact in some of
9 the post World War II cases, Tokyo and others, there
10 was a look at command responsibility for non-military
11 commanders. Commander Fenrick and most of the
12 commentators seem to agree that that kind of authority
13 has to be a military command-like authority.
14 This is different from rank in the military.
15 Command is the right by virtue of a person's office and
16 a special assignment to command a military unit. Only
17 that commander has the right to issue orders in his own
18 name and enforce it. The Hostages case, high command
19 case all talk about that.
20 Rank is something different. Rank is where
21 you sit on the degree of precedence within the
22 military; but clearly, non commanders are in units where
23 they have greater rank than commanders.
24 The Toyoda case, which the Prosecutor cites,
25 is an example of that. Admiral Toyoda was the highest
1 ranking admiral in the Japanese navy, and he was
2 charged in the atrocities committed by Japanese naval
3 forces in Manila that General Matsui was hanged for.
4 And he was found not guilty. Why? Not
5 because he didn't have more rank than those Japanese
6 naval forces. He had more rank than any other Japanese
7 naval officer. He was found not guilty because he was
8 not the commander, General Yamashida was the
10 There is a lot of factors in command
11 responsibility, but the two I would point to quickly
12 are the nature and the extent of authority. The nature
13 of authority to be held criminally liable, a military
14 commander or superior, whatever you want to call him,
15 has to be able to, one, issue legally binding orders;
16 and two, he has to be able to enforce those orders with
17 criminal sanctions. That's the distinction between a
18 military commander and the civilian superior with
19 military command-like authority and every other boss in
20 the world. My boss at home can fire me, he can tell me
21 get out of the office, never come back, but he can't
22 send me to gaol.
23 It's not going to be very common you're going
24 to find a non commander superior that is going to have
25 this kind of authority. I suspect that most of the
1 time it's going to be a very, very high ranking person,
2 almost a cabinet level officer.
3 One example cited by the Prosecutor is the
4 Pohl case, cited under paragraph 4.127 of their
5 submission. In that case the Court said Pohl was
6 either a commander or he had the same kind of power as
7 a commander. That, I believe is the correct test. And
8 you have to look at the extent of his authority.
9 So, you have to be able to see what kind of
10 power he has, how he can enforce that power. And then
11 the Prosecutor still gets to prove that he didn't do
12 it. You can't just say there were crimes, this guy is
13 a commander, the crimes didn't stop, or this guy is a
14 superior, the crimes didn't stop, he's guilty.
15 That's the kind of absolute responsibility,
16 absolute liability that the Yamashida case is
17 criticised for and that nobody says exists.
18 Take a look at Article 25 of the Rome
19 Statute. That lays out what I believe is the most
20 recent example of how the nations of the world view
21 customary international law as it applies to
22 command/superior responsibility.
23 And another thing to look at in my written
24 submission is the proposed Article 25, with a footnote,
25 footnote 11 of that report. And what that footnote
1 says is everybody wanted to broaden this beyond
2 military command-like authority; so that's why this
3 draft article is written this way.
4 But if you look at the finally adopted
5 article, it's a lot different from the draft article.
6 It shows the intent of the nations of the world and
7 what they believe is customary law.
8 Extent of authority. Prosecutor's
9 submission, paragraph 4.124; no one can be identified
10 as having been entrusted with specific formal authority
11 over the camp commander or the camp. Nor can the
12 formal limits of Delalic's authority as coordinator or
13 commander of TG-1 be identified with any great
15 They have got to prove beyond a reasonable
16 doubt that Zejnil Delalic had the authority to do these
17 things, and they tell you in writing they don't know
18 what the extent of his authority is. It's Oz.
19 Mucic, no surprise to the Trial Chamber, you
20 handed down a decision about two weeks ago, you said
21 there is no oral or written evidence as to the extent
22 of Mucic's authority or the nature of it. It's not
23 even clear from the record whether Mucic is a military
24 commander or whether Mucic is a civilian prison warden.
25 They just haven't proved it.
1 The record is clear that there's a whole
2 bunch of groups running all over the Celebici camp;
3 there's TIO, HVO, MUP. Their Witness T testified that
4 people would come running in, in the night, and be
5 doing horrible things to prisoners and the guards
6 couldn't stop them. Their Witness T said he was afraid
7 of them.
8 One thing is sure, though; no matter how much
9 authority and what kind of authority Pavo Mucic had in
10 that camp, Hazim Delic had to have the same or less.
11 He couldn't have any more if he was Pavo's deputy.
12 Knowledge. Another thing they have to prove
13 is knowledge. A whole lot of different formulations
14 floating around. The Rome Statute adopts a knew or
15 should have known standard. The indictment uses a
16 lower standard, knew or had reason to know.
17 Protocol I has two different versions. One
18 version says the commander had to have possessed
19 information which should have enabled them to conclude,
20 should. The French version, in English says, possessed
21 information enabling them to conclude.
22 The Prosecutor has to prove beyond a
23 reasonable doubt that this kind of information was out
24 there to Hazim Delic, Pavo Mucic, Zejnil Delalic, and I
25 would suggest that given the fact that criminal laws
1 should be interpreted narrowly, given the fact that
2 Commander Fenrick has written this French version
3 should be used because it is narrower, the
4 Prosecution's feet should be held to the fire and they
5 should be required to prove beyond a reasonable doubt
6 that people they are charging in a command
7 responsibility theory possessed information enabling
8 them to conclude there were war crimes going on.
9 Let me digress for a second and talk about my
10 client individually. There's no evidence he was a
11 commander at any applicable time in this trial. At
12 most he was a deputy at some point. It's not clear
13 exactly what day he began being deputy and what day he
14 stopped. As I've said, the evidence is real murky,
15 unclear. Failed to prove beyond a reasonable doubt
16 what authority Pavo Mucic had.
17 By failing to show what Pavo, what authority
18 Pavo had, and what the nature of his authority was,
19 because Mr. Delic cannot have more authority than his
20 boss, they failed to prove what Hazim had, what
21 authority and what the nature of that authority was.
22 The Prosecutor says he could have done this
23 or that. In fact, there was a commander of the guard,
24 there's plenty of testimony about that, there was
25 testimony from Esad Landzo that Mr. Mucic appointed
1 somebody as commander of the guard. That person was
2 not Hazim Delic.
3 Chain of command in the camp from one
4 commander to another, if it's a military unit it goes
5 from camp commander to the commander of the guard,
6 leaves out the deputy.
7 The leading cases, and I've beaten them to
8 death, are List and von Leeb. The Prosecutor relies on
9 the Muto decision out of the Tokyo Tribunal to show
10 that a deputy commander can be held responsible on the
11 command responsibility theory.
12 What they forgot to do was give you the full
13 quotation. On page 20 of my outline I've given you the
14 other paragraphs there. It seems to indicate, at least
15 my reading, at one time he was a commander, and at
16 another time he was a staff officer, and then he was a
17 deputy commander; and the Japanese troops were engaged
18 in all kinds of ghastly things there. It's not clear
19 from the judgement whether he was convicted for his time
20 as a commander.
21 You look at the authorities that the
22 Prosecution cites in its written submission as it
23 applies to Hazim Delic, and every one of them, on the
24 paper that they sent you, talks about commanders.
25 They look at ICRC commentaries to Protocol I,
1 talks about commanders. You look at the citations from
2 von Leeb and Colonel John Douglas, who was the former
3 commander of the US Army Judge Advocate General
4 school, talks about the criminal liability of
5 non commanders for their own acts. Not for the acts of
7 Mens rea for homicide. The statute and the
8 conventions -- I'm informed Mr. Greaves is going to
9 talk about that, so I will skip on to something else.
10 I was not going to discuss individual counts of the
11 indictment, but there are two counts, or two groups of
12 counts that apply specifically to Mr. Delic, and that's
13 the two rape counts.
14 I've laid it out in my written submission why
15 I think there is a reasonable doubt there, but I will
16 suggest a couple of factors to the Trial Chamber. One,
17 neither one of them could pick him out of a photo
18 spread. It's in evidence, the photo array is in
19 evidence. Delic exhibit 1.
20 Mrs. Cecez said she couldn't pick anybody,
21 and Mrs. Antic said there is somebody that looks
22 familiar because of the high forehead. I laid out the
23 exact quotes in my written submission. It's there. I
24 believe, like I say, it's Exhibit 1/3. Take a look at
1 On judging Mrs. Cecez's credibility, I've
2 seen evasive on cross and I've seen evasive on cross,
3 and then I've seen Mrs. Cecez's; she sat on that
4 witness stand and told you that she didn't remember
5 whether she made corrections in her prior written
6 statements the day before she sat on that witness
8 She sat on that witness stand and told you
9 she didn't remember whether she was interviewed on
10 television. I'm not going to say whether that is true
11 or not. I'm going to suggest one or two things as a
12 possibility: Either she remembered and didn't want to
13 say so, which goes to her credibility; or in the
14 alternative, she didn't remember, she was telling you
15 the truth from the witness stand.
16 And if that's true, how can she recall events
17 from five years before? If she can't remember what she
18 did yesterday and recount it to you, it goes directly
19 to her ability to recall and recount events accurately.
20 Mrs. Antic. Prosecutor beats me up pretty
21 good in their written submission for my
22 cross-examination of Mrs. Antic. And I wasn't trying
23 to embarrass her, I was trying to get some specific
24 information. And if there's any embarrassment there, I
25 apologise to the Court.
1 Judge Jan and Judge Karibi-Whyte and I talked
2 to her about the hysterectomy and birth control pills.
3 The direct quote is in my written submission. I think
4 Judge Jan said it is a big operation, and every woman
5 knows that, and Judge Karibi-Whyte said it's not
6 getting a wart removed, I think. But go with what is
7 in the written submission and in the transcript.
8 Why did I ask that? Not because I wanted to
9 embarrass the woman. I asked that because I thought it
10 went to her credibility. I've laid out in some detail
11 in my written submission on that.
12 And in closing, before I sit down, we have
13 been here together for about 18 incredibly long months,
14 about 200.000 frequent flyer miles, and I probably made
15 you unhappy; and if I did, hold me in contempt, grab me
16 outside, beat with me that baseball bat, but don't hold
17 it against my client, hold it against me.
18 JUDGE JAN: That's an outrageous suggestion.
19 Even if you've done anything, we will not give you
21 MR. MORAN: I'm just reminding everyone.
22 JUDGE JAN: It's an outrageous suggestion.
23 MR. MORAN: I withdraw it. It's just --
24 JUDGE JAN: Your client is on trial, not you.
25 MR. MORAN: But if I have done anything at
1 any point in this trial to offend anyone in the Trial
2 Chamber, you have my apologies. And I thank you very
3 much for the time. I see I've run over my time. I
4 thank you very much for your attention, and I thank you
5 very much for the last 18 months.
6 JUDGE KARIBI-WHYTE: Thank you very much.
7 Try to keep your submissions within professional means,
8 let's not go beyond what should be expected of counsel
9 to say to the Trial Chamber.
10 MR. MORAN: Yes, Your Honour.
11 JUDGE KARIBI-WHYTE: The Trial Chamber will
12 rise now.
13 MS. RESIDOVIC: Your Honour, before you
14 leave, on behalf of all the Defence attorneys, I wish
15 to ask you that after the break, the legal elements of
16 killings, torture and suffering be presented by our
17 colleague Michael Greaves. I did not say that earlier
18 because our colleague was not here in the courtroom,
19 so, I did not want to say something that I shouldn't be
20 saying. And after him, I would present arguments in
21 terms of the command responsibility of Zejnil Delalic.
22 Thank you.
23 JUDGE KARIBI-WHYTE: To keep your arguments
24 reasonably tidy and short, we did this for the fruition
25 of arguments of the accused person. So, even if two of
1 you are presenting it, you should know how to tidy it
2 up and not make it unduly long. The Trial Chamber will
3 now rise.
4 --- Luncheon recess taken at 1.00 p.m.
1 --- On resuming at 2.38 p.m.
2 MS. BOLER: Your Honours --
3 JUDGE KARIBI-WHYTE: I see two people
5 MS. BOLER: I think --
6 MR. GREAVES: I haven't got a chair.
7 MS. BOLER: I think Michael has allowed me to
8 make a brief address to the Court. At this time, Your
9 Honours, I would like to ask that the Defence of Esad
10 Landzo be allowed to substitute a collected, amended
11 version of final submission and motion for acquittal to
12 replace the one that was filed Friday afternoon.
13 JUDGE KARIBI-WHYTE: Please do.
14 MR. KUZMANOVIC: Your Honour, I apologise,
15 there is one more thing. We accidentally had one
16 protected witness named in our submission, which has
17 been named as confidential. I would like to request
18 permission to substitute the one page that that witness
19 is named on into the registry to substitute for the
20 page that has the protected witness on it. Thank you.
21 JUDGE KARIBI-WHYTE: Thank you very much.
22 Mr. Greaves, I hope you understand the state of making
23 final speeches. If you are sharing it, you decide how
24 you share your speeches.
25 MR. GREAVES: I am hoping to only take five
1 minutes per defendant.
2 JUDGE KARIBI-WHYTE: Thank you very much.
3 MR. GREAVES: I hope none of my learned
4 friends begrudges me my five minutes each.
5 JUDGE KARIBI-WHYTE: Yes.
6 MR. GREAVES: I want to start by putting to
7 you a proposition, which I hope is not controversial in
8 any way. But one which is a matter of common sense.
9 It's this: That any system of criminal law, whether
10 that be a national municipal system of criminal law or
11 a system of international criminal law, requires --
12 demands, that it laws be clear, precise and formulated
13 in readily accessible language. It doesn't always
14 happen, sadly. As anyone who has an had an opportunity
15 to see the English court of appeal engage in some act
16 of semantic dishonesty. But as a proposition, it is a
17 good one in my submission. The purpose of that
18 proposition is this: That the laws may be clearly
19 understood by those to whom the laws apply, be they
20 citizen, states or armies. That implementation of the
21 criminal law does not fail because the laws lack
22 clarity, precision and readily acceptable language.
23 Allowing the guilty to evade justice, or worse, causing
24 the innocent to be unjustly convicted. Thirdly, that
25 those charged with trying and sentencing criminals can
1 do so in the knowledge that the system they are
2 applying, enjoys the confidence of the people.
3 Fourthly, and perhaps as important as any of those,
4 that those whose task it is to advise others on the
5 law, can give clear and ambiguous and proper advice,
6 whether that be to prosecutors or to defendants. The
7 reasons why that proposition is important is because in
8 the criminal courts, in every jurisdiction, there is
9 the power to send people to prison for the rest of
10 their life. In some jurisdictions, there is the power
11 to deprive people of their life. Those are fundamental
12 acts that involve the liberty and life of the subject.
13 For that reason, all systems of criminal law must meet
14 the criteria that I have suggested.
15 If we look at the Geneva Conventions, we find
16 that those are not criminal statutes. The intention in
17 1949 and reinforced in 1977, is that national
18 jurisdictions should implement the philosophy of the
19 Geneva Conventions by passing into their own
20 legislation, suitable and appropriate acts of
21 parliament, designed to meet their own legal system.
22 An example in my jurisdiction, in England and Wales, is
23 the Genocide Act of 1969, which imports into English
24 law, the Geneva Conventions grave breaches scheme and
25 makes it part of our criminal law.
1 The consequences of having as the background
2 to war crimes trials at the Geneva Conventions, is that
3 we as the source from which the statute of the Tribunal
4 is derived, a series of documents which are not
5 intended to be criminal statutes. They don't begin, in
6 my submission, to match the status of what most
7 jurisdictions would recognise as criminal statutes or
8 criminal codes. What we do have is the statute of the
10 I move on now to this point: When it comes
11 to the question of interpretation of that statute and
12 what definitions you should give in our submission to
13 the meanings of words, phrases and language, we urge
14 Your Honours to continue to do as you have done
15 throughout this trial. To interpret language by
16 applying the ordinary and usual meaning to the words,
17 phrases and language that you have to define. We urge
18 you to continue to do that because that is a fair and
19 proper way of dealing with interpretation.
20 I turn now to the bulk of what I have to
21 say. Firstly, I deal with the question of mens rea of
22 murder. At the conclusion of the Prosecution case, we
23 set out a reasonably basis for a proper means of
24 construing the offence of murder. It is a matter of
25 regret that, thus far, the Prosecution have largely
1 failed to address the serious issues that were raised
2 in that submission. By and large what they say is,
3 well, we're right, the Defence are wrong and we don't
4 need to argue the point. In their submissions, they
5 rely entirely on the ICRC commentary to Protocol 1.
6 That, in itself, contains language that is incorrect we
7 submit and we remind you of it. Wilfully, the accused
8 must have acted consciously and with intent i.e., with
9 his mind on the act and its consequences and willing
10 the result, criminal intent or malice of forethought,
11 which is actually an incorrect use of English. It's
12 malice of aforethought, one word. And it then goes in
13 to import into the definition, the concept of
15 The problem, we submit, for the Prosecution,
16 lies in the words actually used in the statute. It is
17 those words that Your Honours have to construe. In the
18 English version of the Statute, it is wilful killing.
19 In the French version it is Homicide Intentional.
20 Now, rightly we don't look to national law to define
21 the words and phrases that are part of the criminal law
22 of this Tribunal. Your Honours may think that the
23 definition that in their various submissions that they
24 have made, that the Prosecution have essentially
25 latched on to the classic English definition of the law
1 of murder. Well, they then proceed to muddle it by
2 adding the concept of recklessness.
3 Your Honours, the definition in England is
4 that you can be guilty of murder if you intend to kill
5 or intend to do really serious bodily harm. But it
6 doesn't have as part of its definition, recklessness.
7 But they seem to echo in the phrase that they use, the
8 English definition, which I am sure it may well be that
9 definition still exists in other commonwealth
10 jurisdictions and Your Honours will be more familiar
11 with your own than I.
12 I said a moment ago that Your Honours should
13 approach these kinds of words by using the ordinary and
14 usual meanings of them. That, in my submission, is the
15 starting point from which you should proceed. In the
16 submissions we made at the conclusion of the
17 Prosecution case, we quoted from respectable
18 dictionaries. They clearly point to what the ordinary
19 and usual meaning of the words in the statute in
20 English and French are. Intentional qui est fait
21 expres, avec intention, a dessein. Conscient,
22 delibere, premedite, volontaire, voulu... And perhaps
23 importantly, in connection with the law, droit, Delit
24 intentional, par opposé au delit d'imprudence et au
25 delit contraventionnel. As opposed to a crime of
1 imprudence or negligence or recklessness. We say that
2 that is a clear indication of what the word
3 "intentional" was intended to mean in the
4 legislation. The Oxford English -- that comes from La
5 Grande Française, 1989.
6 The word "wilful," the Oxford English
7 dictionary, the large version thereof. Done on purpose
8 or wittingly, purpose, deliberate, intentional and not
9 accidental or casual. We submit that it is quite clear
10 what those words mean. They are clear and unambiguous
11 definitions. In English and in French. Of course, and
12 I speak only of my own language, to say that intention
13 and recklessness can be the same thing is simply to
14 stand the English language on its head. They are two
15 concepts which both in law and in common sense are
16 mutually exclusive. We say that construing the statute
17 in the manner that I have invited Your Honours to do so
18 can lead to only one conclusion. That the proper
19 definition of wilful murder Homicide intentional is
20 killing with the intent to kill.
21 I turn now to torture. The Prosecution
22 demonstrated in their submissions, the inconsistency of
23 their approach. Because in respect of torture, having
24 said that the ICRC was the definitive law for murder,
25 the ICRC commentaries, when it suits them they ignore
1 the ICRC commentary. On this occasion the ICRC
2 commentary doesn't suit, so they have to go and look
3 for another source. On this occasion, it was the 1984
4 convention which gave them the lead to define what they
5 say torture is. They also quote extensively from
6 Sherry Bassiouni's book. Again, unfortunately, it's
7 somewhat selective because there is another proposition
8 which is put by Mr. Bassiouni at page 549 of his book
9 concerning the definition of torture. Your Honours
10 will forgive me for reading it, but it's important.
11 Additionally Section F of Article 6. Torture is
12 criminalised by the Torture Convention. That's the
13 1984 convention. But the Torture Convention is not
14 included in the statutes listed applicable substantive
15 law. Furthermore, that the acts enumerated in this
16 provision are undefined and the elements of the
17 offences are unstated, raises questions concerning the
18 principles of legality. How the Tribunal should
19 determine the definition and elements of the prohibited
20 acts is left unresolved. The Tribunal could rely on
21 the definition and elements of the corresponding crimes
22 contained in the criminal codes of the previous
23 republics in which the alleged acts occurred.
24 JUDGE KARIBI-WHYTE: You are being implored
25 to slow down.
1 MR. GREAVES: I heard and didn't want to lose
2 the thread of what I was saying.
3 This approach would ensure that the
4 substantive aspects of the principles of legality are
5 upheld. It would be consistent also with Article 22
6 which provides that the Tribunal should impose
7 penalties after considering the laws of the various
8 republics. Alternatively, the tribunal could disregard
9 applicability of domestic law and rely on general
10 principles of law to ascertain the elements of such
11 crimes in the world's major criminal justice systems.
12 This approach, however, would require a substantial
13 comparative criminal law research project. The
14 Tribunal does not have the resources, personnel or time
15 for such an undertaking.
16 Torture and rape are included within the
17 meaning other inhuman acts of Article 6(c) of the IMT
18 Charter. However, the Tribunal must still identify the
19 legal elements of those crimes. As previously
20 indicated, the Tribunal could rely on the applicable
21 criminal laws of the former republics. BiH, Croatia
22 and Serbia has similar substantive criminal laws. The
23 tribunal, therefore, would interpret the stature in a
24 matter that is consistent in substance with the
25 principles of legality. The report of the
1 Secretary-General does not mention the torture
2 convention, which nevertheless should provide the
3 definition for torture under F. So it's his
4 submission, effectively, that the 1984 convention is
5 the appropriate one. But his opinion falls short, we
6 submit, of being settled law. There is support for
8 Firstly, Article 1 of the 1984 convention
9 speaks of the definition given there being for the
10 purposes of this convention. It may be that that is a
11 restrictive clause. Secondly, that definition of
12 torture is not unique. There are other definitions
13 given in other jurisdictions.
14 In the case of Ireland versus the United
15 Kingdom, in 1978, before the European Court of Human
16 Rights, that court had to deal with a complaint by the
17 Irish government that the British were torturing Irish
18 terrorists. The conduct complained of was forcing
19 people to stand against walls for long periods of time
20 by their finger tips, causing them to become
21 disorientated, by hooding suspects, again with the
22 intention of disorientating, by subjecting them to
23 white noise pending interrogations, by depriving them
24 of sleep and by depriving them of food and drink. The
25 Court held that that was not torture. I draw that
1 decision to Your Honour's attention. I won't go
2 through it in detail because of the time aspect, but I
3 draw it to your attention. It is important. It
4 contains another definition of torture.
5 Next, in 1985, the year after the 1984
7 JUDGE JAN: Just before you proceed further.
8 MR. GREAVES: Of course.
9 JUDGE JAN: If it said it was not torture,
10 then there must be some definition which the Court must
11 be having in mind.
12 MR. GREAVES: There is. I am not going to
13 read it out because it's a lengthy passage and I am
14 constrained by time. I draw the decision to Your
15 Honours' decision and you can draw upon it leisure and
16 I urge it upon you. Is that helpful?
17 JUDGE JAN: If you say it is not torture,
18 then there must be some definition.
19 MR. GREAVES: They do indeed define what
20 torture is as far as they concerned, but they say that
21 those acts, cumulatively, did not amount to torture.
22 And our submission would be that the acts that were
23 being carried on involving Irish terrorists were far
24 more serious and grave and perhaps the classic thing
25 that people and plainly the Irish government thought of
1 it as torture --
2 JUDGE JAN: I don't understand that. White
4 MR. GREAVES: Yes, when your ear phones play
5 a mushy sounding noise, that is known as white noise
6 and that was the noise that was played to them. And if
7 it's played to you for long periods of time, it's very
8 disorientating, just ask any 15-year-old that goes to
9 the disco. And Judge Odio-Benito would possibly know
10 more about the 1985 Inter-American Convention to
11 prevent and punish torture. That was signed in
12 Colombia in 1985 and that has yet another definition of
13 torture which is similar to, but is certainly not
14 identical with the definition proposed by the
15 Prosecution. And I see her acknowledging that that
16 exists and she will, doubtless, be able to assist your
17 colleagues with that definition. Again, I don't read
18 it. It's long, but I am grateful.
19 So the Prosecution's assertion, that the 1984
20 convention, is settled law, no argument, finished, the
21 end, can be seen in our submission as being really, not
23 There is yet another definition for the want
24 of, for just the sake of adding one, the UK law,
25 although they're signatory to the 1984 convention, the
1 act which imports that into English law and contains
2 yet another definition of what torture is. It's
3 slightly more elliptical, if I may use that. It's not
4 the best piece of legislation that I have ever seen
5 from the United Kingdom.
6 I turn now quickly to wilfully causing great
7 suffering there are three points. The use of the word
8 wilful in that phrase, we submit that the mens rea that
9 you apply to that should be consistent, indeed the
10 same, as far as possible with any other definition of
11 mens rea that you give to the word wilful. The second
12 thing is we set out in our half-time submissions that
13 the law of this offence lacked proper clarity,
14 precision and accessibility of language. And say for
15 those reasons, it breaches the principal of Nullum
16 crimen sina lege (Latin).
17 If that's not a proper -- if that's not right, the
18 proper test is there must be a wilful act, which either
19 cause great suffering or caused serious injury to
20 health or body. Again, inhumane acts, we again say
21 that we have set out a clear basis for saying that the
22 laws there lack the required clarity, precision and
23 accessibility of language in the half-time
24 submissions. Indeed, the Pictet commentaries
25 themselves plainly agree that this idea is rather
1 difficult to define. And for a set of commentaries
2 defines quite a lot of things, that says a lot. We
3 say, again, there is a violation of the principle of
4 Nullum crimen sina lege (Latin).
5 I conclude with a short word about plunder.
6 When I came last March, March 1997, that is, to work at
7 this court and appear here before Your Honours, I
8 little imagined that I was coming to the detention camp
9 equivalent of shoplifting. Stealing watches and coins
10 is not what plunder is about. It is not a serious
11 grave breach of the Geneva Conventions. Plunder is
12 what Herman Goering did with the art of Eastern
13 Europe. That's what grave breaches are. Or, for
14 example, emptying entire houses of their quality
15 furniture. That's plunder. But stealing a watch and a
16 few coins is not what we were brought and assembled at
17 great expense to try in my submission. The evidence in
18 this case is essentially that was what was stolen. It
19 doesn't meet, by a very long way, those criteria. And
20 we urge that that count in particular, as a matter of
21 law, has no proper place in this Court.
22 I think I have just about done twenty minutes
23 and a bit. And I do apologise if I have gone on too
24 long. Those are our submissions and we urge you to
25 take them carefully into consideration.
1 JUDGE JAN: What definition of torture did
2 you have in mind.
3 MR. GREAVES: We set out in our half-time
4 submission, and I think it's repeated elsewhere, a
5 proposed submission. But, our main submission is that
6 we don't concede that it is the definition authored by
7 the Prosecution. We've set it out at some length in
8 the half-time submission. It's quite long and, again,
9 because of constraints of time, I am not going to, if
10 Your Honour will permit me, repeat it. It's there and
11 available for Your Honours to read again. Is there
12 anything I can assist any of Your Honour's on?
13 JUDGE KARIBI-WHYTE: I think it's
14 sufficient. Can we hear you, Ms. Residovic?
15 MR. GREAVES: Would you think it very rude if
16 I withdraw?
17 JUDGE KARIBI-WHYTE: No, if this is all you
18 can offer.
19 MR. GREAVES: If you gave me lots more time,
20 I'd offer lots more, but you're not going to.
21 JUDGE KARIBI-WHYTE: No. You may proceed,
22 Ms. Residovic.
23 MS. RESIDOVIC: Thank you. Thank you, Your
24 Honour. After hearing the Prosecution case and the
25 Defence case before this Trial Chamber, we hope, Your
1 Honour, that we'll be able to present an assessment of
2 the Defence as to whether the Prosecution has made a
3 case against Mr. Zejnil Delalic, that is that he has
4 committed the acts for which he has been indicted.
5 The task of the honourable judges and the
6 standard that you will certainly apply is that the
7 accused can be found guilty only if there is evidence
8 beyond any reasonable doubt and that standard is well
9 known in all criminal procedures world-wide. If after
10 carefully assessing all the evidence presented you
11 ascertain that the Prosecutor has not done this, that
12 is, has not borne the burden of proof in terms of
13 proving all the key elements of the crimes mentioned in
14 the indictment, then you will certainly have to release
15 the defendant. In our law, as in all other laws, in
16 dubio proraro is an universal principle of criminal
17 law. In the case of Zejnil Delalic, I believe that
18 your task is going to be quite easy. With full
19 confidence in your experience of imminent legal expert
20 and your human experience of lofty judges, I believe
21 you will conscientiously and critically assess all the
22 evidence presented.
23 The only conclusion which you will reach, I
24 believe, is that it is not only that the Prosecutor has
25 proven beyond any reasonable doubt, not a single one of
1 the counts in the indictment, against Zejnil Delalic,
2 but on the contrary it has been established viva voce
3 before this Court through hearing witnesses and on the
4 basis of authentic and reliable documents, it has been
5 ascertained that Zejnil Delalic not at a single point
6 in time in the period mentioned in the indictment did
7 not have a status of a superior in the prison of
8 Celebici, over its staff, guards and other persons who
9 allegedly committed the crimes in the indictment.
10 May I recall the following, Your Honour.
11 Counts 3 and 7 of the indictment, ascertains that Zejnil
12 Delalic coordinated the forces of the Bosnian Muslims
13 and the Bosnian Croats in the territory of Konjic from
14 April 1992 until September 1992 and that he was
15 commander of Tactical Group No. 1 of the Bosinan forces
16 sometime from June to November 1992 and in that
17 capacity he was responsible for the work -- fort he
18 functioning of the Celebici prison and he was, thus, a
19 superior in relation to all the guards in the camp and
20 all other individuals who came into the camp and
21 mistreated the prisoners. I am not going to repeat the
22 counts of the indictment because I know that you are
23 fully aware of them, just as we are. Just one count,
24 count 48, is the one that brings charges against
25 Delalic for the unlawful confinement of civilians in
1 keeping with Article 71(1) of the statute of the
2 International Criminal Tribunal.
3 In its written brief the Defence analysed in
4 detail the legal and factual issues related to the
5 subject matter of the indictment and the evidence
6 presented. Therefore, today I shall briefly only draw
7 your attention to some of these questions, notably
8 those that are related to the status of the accused.
9 A foremost question in terms of establishing
10 responsibility in the sense of Article 7 of the statute
11 of our Tribunal, that is a conditio sine qua non
12 is that the accused person had the status of a superior
13 person at all.
14 What does the Prosecutor say about this? In
15 the Pre-Trial brief of the 24th of February 1997 the
16 Prosecutor took the position presented in the
17 commentary of the ICRC on Protocol I of the Geneva
18 Conventions, according to which the concept of a
19 superior is a broader one and should be viewed within
20 the context of the hierarchy that encompasses the
21 concept of control, too.
22 Today we have heard a broader concept. This
23 concept of a superior person is being extended by the
24 Prosecutor to every person which enjoyed a reputation
25 in a given area and in this way reaches certain
2 This is the same position that was upheld in
3 the introductory remarks of the Prosecutor, notably
4 stating that evidence will show that Delalic had direct
5 control over the perpetrators and their superiors in
6 the Celebici prison, that he had direct control over
7 the staff of the Celebici prison, that Delalic was
8 officially in charge of the prison, that the prison was
9 within the area of his command.
10 The Prosecutor has not proven a single one of
11 these allegations. Aware of the fact that he will not
12 be able to present evidence on the official position of
13 direct control of Delalic in the Celebici prison, the
14 Prosecutor disassociated himself from this by stating
15 the following: No matter what kind of arguments could
16 be drawn on his de jure authority there is no doubt
17 whatsoever that he had defacto responsibility over the
18 Celebici prison. That is what was said today by the
19 Prosecutor in her closing argument.
20 Also, the Prosecutor reminds us of what they
21 said earlier, too; perhaps others shared this
22 authority, too. That is to say persons who delegated
23 this responsibility to Delalic. But the fact is that
24 others are responsible, and that is no defence for
1 However, this allegation was not proven by
2 the Prosecutor, either. In respect to Delalic, the
3 Prosecutor insists on an inaccurate and untenable
4 assumption which reads as follows, according to the
5 Prosecutor: Delalic is superior and responsible for
6 the prison of Celebici, regardless of the status he had
7 and what duties he performed in the period from May to
8 November of 1992.
9 That is to say that the Prosecutor believes
10 that by extending the scope of responsibility for
11 Delalic that it is all the same, whether he is an
12 ordinary civilian, a rank in file soldier, a
13 coordinator between the War Presidency and the Defence
14 forces, or whether he is commander of Tactical Group
15 1. Because in each and every one of these statuses,
16 according to the Prosecutor, Delalic is always superior
17 in the Celebici prison.
18 The Prosecutor opted for this assumption
19 precisely because he could not prove that Delalic, as
20 coordinator or as commander of Tactical Group 1, had
21 any formal authority over the prison.
22 So, the Prosecutor himself accepts that
23 neither the coordinator nor the commander of Tactical
24 Group 1 have authority over the prison. But as we
25 heard today, Zejnil Delalic does, irrespective of his
1 official status and authority.
2 According to this thesis, it can be derived
3 that Delalic was in charge of the -- would have been in
4 charge of the prison, even had he not been the
5 coordinator and the commander of Tactical Group 1.
6 Precisely for that reason, through the
7 evidence that he presented, the Prosecutor tried to
8 create the feeling and conviction that Delalic in fact
9 had great power and great personal influence over all
10 institutions in Konjic and all the people around him.
11 I think, Your Honours, that you will agree
12 with me that this is an absolutely inaccurate and
13 unrealistic claim.
14 In the period for which Delalic is indicted,
15 in Konjic there was a War Presidency as the main organ
16 of civilian authority. The War Presidency of Konjic
17 consisted of very influential, authoritative people
18 from Konjic with a high reputation.
19 At the same time there was a municipal
20 headquarters of the Territorial Defence. In addition
21 to the commander, there were some 40 officers in it.
22 Also there was a municipal staff of the HVO with a
23 fully autonomous structure.
24 In the critical period there was also a joint
25 command of the Territorial Defence and the HVO with a
1 developed system of command and with at least 30
2 officers on it who comprised this command. In Konjic
3 at this time there was also a police MUP which was
4 subordinated to the ministry in Sarajevo.
5 So, as you have had ample opportunity to see
6 and hear during this trial, in the institutions of
7 civilian and military government in Konjic there was
8 over 100 persons who held certain posts and authority
9 and also had a personal reputation and dignity and a
10 feeling of responsibility.
11 In this area at that time there were also the
12 representatives of the chief command, among them four
13 generals, too; General Divjak, General Kadic, General
14 Pasalic and General Polutak. Before this court three
15 of these generals have testified. The president of the
16 War Presidency, Dr. Hadzihuseinovic testified, as well,
17 and the representative of the republican staff
18 Brigadier Dzembasovic (Phoen).
19 It is quite clear to everyone who heard and
20 saw these people, that these are credible witnesses,
21 that these are educated, able, decisive persons.
22 Therefore, it is untenable to assume that Delalic had
23 power over them and that they were subordinated to
25 These people held their civilian and military
1 posts even before Delalic came to Konjic, and they
2 continued to discharge their duties after Delalic left,
4 May we recall the following: 20 years before
5 the war Delalic lived outside of Konjic. He spent only
6 eight months during the year of 1992 in Konjic.
7 Therefore, it is not only unbelievable, but it is also
8 impossible that after 20 years a person comes back to a
9 town and that within a month's time he establishes a
10 personal power of his own in that town and his own
11 influence over hundreds of educated authoritative
12 people with a high reputation, and if you wish, people
13 who also have their vanity, and who are in high
14 positions of civilian and military power.
15 It would be incredible to believe Zejnil
16 Delalic or anyone else who had the command
17 responsibility of a superior would be hiding behind
18 different names; but we heard from the commander of
19 Desna Obala at that time it was an honour to be
20 a commander.
21 The Prosecution has presented its case, but
22 did not manage to provide arguments, In paragraph 4.1119
23 of their final brief they themselves almost acknowledge that
24 fact. I quote " Although Delalicís control and responsibility
25 over the prison as a whole and over the prison
1 , commander is not acceptable and even if the
2 arguments presented by the Defence prove this, it is
3 certain that he had sufficient authority in the prison,
4 including authority to classify prisoners and release
6 We have heard about many of these things
7 before and we have said in detail what we had to say
8 about this in our own written submission, but I shall
9 say only briefly upon what we think the Prosecution
10 bases its case on.
11 First of all, these are several witness
12 statements by people who did not know enough personally
13 about Delalic and what kind of authority he had.
14 Secondly, on the basis of witness statements
15 by persons who cannot be trusted because of their
16 personal status, and because they gave contradictory
17 statements, and because of their attitude towards
18 Delalic. So, these statements cannot have probative
20 Thirdly, on the basis of the testimony of an
21 expert witness who before this court admitted that he
22 did not do any research on the situation in Konjic
23 itself and that he bases his knowledge about this
24 situation only on the documents that were made
25 accessible to him by the Prosecution.
1 Fourthly, on inauthentic and unreliable
2 documents, which because of that and because of the
3 inaccurate facts they contained, cannot have any
4 probative value.
5 I shall say something very briefly about this
6 particular evidence. First of all, the witnesses of
7 the Prosecution who were over a certain period of time
8 prisoners in Celebici do not have any personal
9 knowledge of the duties and responsibilities of Zejnil
11 Of course, Your Honours, on the basis of the
12 testimony of these persons, you cannot ascertain what
13 kind of authority and status Zejnil Delalic had.
14 In contrast, numerous witnesses of the
15 Defence, members of the civilian and military
16 structures of Konjic, credible witnesses that are
17 supported by numerous documents that they often
18 presented themselves, are telling proof of his duties
19 and authorities.
20 Secondly, Witness D is one of the important
21 witnesses upon which the Prosecutor proves his case;
22 that is that Delalic had the status of a superior.
23 This witness is contradictory in his own right and is
24 not credible, and therefore, cannot serve as a basis
25 for ascertaining any kind of position of Zejnil
2 His testimony has been brought into question
3 by the statements made by many witnesses and authentic
4 documents. If you remember the statement made by
5 Witness D before this court, you will remember how
6 greatly contradictory his own statement is.
7 Actually, when speaking before you he did not
8 even know when he came to Konjic and when he allegedly
9 visited the house of Zejnil Delalic, and he gave
10 several different versions of these events. He did not
11 know when he started working in the military
12 investigative commission.
13 He was contradictory to such an extent on the
14 allegedly held meeting in Celebici attended by Zejnil
15 Delalic that there is reasonable doubt as to, it can be
16 reasonably suspected as to whether such a meeting was
17 ever held.
18 Also, there is contradiction in terms of his
19 testimony on writing the report on the conditions in
20 the Celebici prison, in terms of the substance of this
21 report and who this report was sent to.
22 First he says that Delalic made these
23 categories, and then after that he doesn't know who
24 made these categories at all.
25 He did not know anything about the document
1 dated the 1st of June, which he allegedly got at the
2 meeting with Delalic; and then during the course of his
3 testimony about this same document and his reception,
4 he gave a few different versions.
5 What is certain is, which was proven by this
6 witness before you, that he is from the HVO Mostar,
7 that he was recommended and that he was in the HVO
8 Konjic; that he reported at HVO Konjic and offered his
9 services; that he was told to report to Goran Lokas,
10 the president of the military investigative commission;
11 that for the same reasons he was called by Miroslav
12 Stenek and he was told to contact the HVO; that after
13 this he was to report to Ivan Azinovic, the president
14 of the HVO, which he subsequently did. And that he is
15 quite sure that at that time it was only the HVO who
16 could appoint Croats to certain duties.
17 For this reason, it is quite, it cannot be
18 understood that the Prosecutor can maintain and
19 continue to maintain that Zejnil Delalic appointed
20 Witness D to a particular appointment in the military
21 investigative commission and explained to him the work
22 he would have to do in the presence of the most
23 responsible people of the HVO, Dinko Zebic, the
24 commander of the HVO, and Ivan Azinovic the president
25 of the HVO.
1 Attempting to save the credibility of this
2 witness in his written response dating back to March
3 1998, the Prosecutor attempts to convince us that the
4 witness only has trouble in remembering dates, and he
5 suggests that perhaps the document of the 1st of June
6 sent to Ivan Azinovic was in fact given to Witness D
7 either on occasion of the first meeting in the house of
8 Zejnil Delalic forgetting in that regard that Witness
9 D, according to his own testimony, went to that house
10 precisely with Ivan Azinovic. And therefore, there
11 would be no point in Zejnil Delalic writing a message
12 for Azinovic in his presence.
13 Or perhaps that this message was given to him
14 when he came to take over his uniform, forgetting the
15 fact that Witness D also gave contradictory testimony
16 and said Zejnil Delalic at their first meeting promised
17 him a uniform but the uniform was issued to him by
18 somebody else and he signed for it.
19 Witness D is not certain whether any document
20 of this kind was given to him by Zejnil Delalic, and as
21 he described earlier, circumstances whereby he received
22 the document during the meeting with Delalic in
23 Celebici, brings into question the meeting itself and
24 the competency of Delalic upon which the Prosecution
25 bases its allegations.
1 What we know, or what we were able to become
2 convinced in through this witness's testimony, is that
3 he reported for duty at the HVO in Konjic; that his
4 alleged knowledge on what had taken place in the
5 Celebici camp was told to Ivan Azinovic, the
6 president of the HVO and other responsible individuals
7 of the HVO; that Ivan Azinovic allegedly told him to
8 cease performing his duty, which he did immediately.
9 That a report, according to his personal knowledge, was
10 sent exclusively to the HVO, and before you, Your
11 Honours, he stated that he had never seen an original
12 copy, that he signed a copy, and that he doesn't know
13 to whom that report was sent or whether it was sent to
14 anybody else.
15 The credibility of every witness, and this
16 witness as well, is another important question that
17 this Trial Chamber will have to deliberate. And I'm
18 sure the question will arise as to why Witness D would
19 have to accuse Delalic.
20 Perhaps it would be well for me to remind you
21 of the testimony of Regis Abribat, who testified before
22 this Trial Chamber. He said that during investigations
23 on the Celebici case no criminal report existed against
24 Zejnil Delalic on the part of any state or
25 international organisation, and that their
1 investigation led to a reasonable doubt as to Zejnil
2 Delalic's crimes.
3 The statements, according to which the
4 indictment was confirmed, were based on the testimony
5 of Ivan Azinovic and Mladen Zebic, who did not appear
6 before this Trial Chamber.
7 From the testimony of Dr. Ahmed Jusufbegovic
8 and Dzevad Pasic we were able to learn that as early on
9 as 1992 they were the protagonists of a campaign
10 against Zejnil Delalic asserting he was a Chetnik and a
11 traitor. Ivan Azinovic was head of Witness D, who
12 belongs to the same circle of individuals.
13 In this connection, and in connection with
14 this witness, let me remind you of the testimony made
15 by Ziad Salihamidzic, who knew Witness D since before
16 the war as a worker in the state security institution.
17 In 1992 Witness D asked Salihamidzic allegedly
18 compromising data on General Jovo Divjak and Zejnil
20 Evidence placed before this Trial Chamber
21 showed that because of allegations of this kind Jovo
22 Divjak was arrested, and a relentless campaign was
23 waged against Zejnil Delalic. [redacted]
20 You will take into account all these facts
21 put before you when you come to your deliberations as
22 to the credibility of the witness. I am fully aware of
24 However, independently of the reasons put
25 forward as to the credibility of this witness, it is
1 far more important that other witnesses which we have
2 also heard before this Trial Chamber, members of the
3 staff and War Presidency and internal affairs organs,
4 Kevric, Cerovac, Tahirovic, Duracic, and Dzumhur Hadzihuseinovic were completely
5 adamant in their assertion that Zejnil Delalic had no
6 authorisation to appoint members of the military
7 investigative committee and that he was not superior to
8 it, that he could not appoint Croats to any office
9 whatsoever, as he could not appoint Witness D; that he
10 had no authorisation for the detention, imprisonment
11 and keeping individuals in prison, nor did he have
12 authorisation to free them.
13 The statements of these credible witnesses
14 bring into doubt the statements made by Witness D on
15 all the relevant facts.
16 The majority of the evidence upon which the
17 Prosecutor bases his views as regards Zejnil Delalic's
18 responsibilities in the concluding brief are connected
19 to video-tapes and documents which were found in the
20 INDA-BAU company in Vienna.
21 Of specific importance in assessing this
22 evidence is the decision made by Your Honours in this
23 Trial Chamber in connection with the weight to be
24 attached to the so-called Vienna documents.
25 In that respect, I think that it is a good
1 idea for us to recall the following paragraph; trials
2 between international courts are led by professional
3 judges, which according to their experience and
4 knowledge are able to evaluate every piece of evidence
5 presented and to assess its probative value.
6 As has been stated, it is implicitly provided
7 by the rules that the Trial Chamber should give all
8 attention to the reliability evidence when deciding
9 upon its admissibility.
10 However, this kind of terminology could leave
11 space for a lack of understanding or different
12 interpretations that in this stage of the proceedings,
13 the origins and authorship of the evidence is
14 presented. And therefore, the Trial Chamber
15 would like to make it clear that the acceptance of
16 documents as evidence does not mean that the statements
17 will necessarily show an exact explanation of the facts
18 as they stand.
19 Factors such as authenticity and proof of
20 authorship will have a great importance when the Trial
21 Chamber comes to assess each of the individual pieces
22 of evidence submitted.
23 In addition to that, Your Honours, the weight
24 of every piece of evidence whose authors did not appear
25 as witnesses will be dealt with if they did not appear
1 in the cross-examination. The Defence considers that
2 this stand presented in the decision mentioned should
3 be a standard in appraising evidence in this hearing,
4 particularly those with regard to Zejnil Delalic,
5 whether we are talking about Defence evidence or
6 Prosecution evidence. So that, we could then go to
7 archives to determine the authenticity of the evidence
8 if we were to determine somebody's responsibility.
9 We have spoken a great deal about the Vienna
10 documents in written arguments.
11 Relying on Dr. Gow's expert testimony, the
12 Prosecution says that there was a vacuum in Konjic and
13 relations were not regulated, and because the district
14 headquarters in links with Sarajevo, that Konjic had a
15 great degree of autonomy, and that in a situation of
16 this kind Zejnil Delalic, according to his personal
17 ability and political influence, had de facto authority
18 and authorisations in the municipality.
19 These assertions are without basis in the evidence provided.
20 We heard the First and Seventh commander of the municipal headquarters,
21 members of staff, and the joint commanands together with the chiefs of
22 staff, and we also heard the commanders and Sadic Dzumhur, the deputy of
23 the head of MUP, Brigadier Dzambasovic and Vasogic, and Dzambasovic who on
24 behalf of the supreme command was located in Konjic at
25 that time.
1 For Zejnil Delalic to be in a position of
2 superiority, he must have been a member of one civilian
3 or military authority. All the witnesses that we
4 listened to said that Zejnil, as a coordinator, was not
5 a member of either a civilian authority or military
6 authorities. Nor did those authorities give him any
7 competencies over the prison itself.
8 Zejnil Delalic had no authorisation over the
9 prison, either when he was commander of the tactical
10 group or at any other time. The Prosecutor states that
11 in William Lists trials in the United States of America
12 and so forth, he tries to make us realise that Zejnil
13 Delalic has the authorisation of a regional commander.
14 However, it is precisely this decision that
15 determines that the question of subordination of the
16 units for criminal liability becomes important in the
17 case when the competency of the commander is tactical.
18 And everything showed that the authorisation of Zejnil
19 Delalic was exclusively tactical.
20 The witnesses from Jablanica, Prozor, Hadzici, Konjic
21 and elsewhere clearly show that Zejnil Delalic, as commander of the
22 tactical group was never in superiority over the
23 formations of the armed forces of the municipality.
24 And for this reason, the assertion of the Prosecution
25 which relies on the appointment of the 27th, whereas
1 Zejnil took over his duties on the 30th, is absolutely
2 refuted by all the testimony that ensued.
3 The errors in appointment, or placing it at
4 actor, came eight days after that.
5 The Prosecutor insists on certain parts of an
6 order dating to the 24th and 28th of August, and stating that,
7 maintaining that Zejnil Delalic was superior to the
8 commander of the municipal headquarters, Esad Ramic,
9 and the Prosecutor said so today.
10 The Prosecutors brought under subpoena Esad
11 Ramic and decided not to listen to him. That he, Esad Rasmic, could
12 tell the Prosecutor that Zejnil Delalic was superior in
13 this period when he was coordinator, or when he was acting as commander of TG,
14 Prosecutor would have brought forward this individual. Esad Ramic
15 was not able to confirm this. Had he come into this
16 courtroom in October, this would have been exculpatory
18 Today the Prosecutor tells us that he has no
19 direct proof, but if we link up some small elements of
20 proof, that case can be built up against Zejnil
21 Delalic. In this way, he has tried to build up his
22 knowledge about the events that took place, because he
23 did not succeed in proving his authority over the
24 prison and the prison staff.
25 All the facts prove that Zejnil Delalic, up
1 to the 18th of May, was a civilian, and that from the
2 18th of May to the 27th of June was the coordinator as
3 a civilian between the war time presidency and the
4 defence forces without any rank and that as commander
5 of Tactical Group 1, from the 30th of July, had no
6 competencies over the prison, the staff and the wardens
7 or the guards in that prison. Linking up individual
8 parts to show that Zejnil Delalic knows something of
9 the events that took place in the prison, the
10 Prosecutor in 0.411, indicates some of that proof that
11 comes under the knowledge of Zejnil Delalic. The
12 Defence maintains that Zejnil Delalic did not know and
13 did not have reason to know what was going on and that
14 the crimes in Celebici had taken place and been
15 committed. As the Prosecution cannot prove this in the
16 count mentioned, the Prosecution maintains that witness
17 D for many months after leaving Celebici, met
18 Mrs. Jasna Dzumhur, president of the commission, and
19 that on that occasion, she said I informed Delalic
20 about everything and nothing more.
21 Therefore, Witness D and Jasna never stated what they
22 discussed, in fact. Because everything means nothing,
23 is the same as nothing. And, at the same time, nobody
24 said what Jasna Dzumhur knows about events in Celebici.
25 Let's us remind you that Witness D did not know a lot
1 of this. He knew of the death of Mrkajic, that he had
2 died of diabetes. If we look at the quality of these
3 assertions and allegations --
4 JUDGE KARIBI-WHYTE: Make sure that you are
5 keeping your eye to the time.
6 MS. RESIDOVIC: Yes.
7 Your Honours, I have been informed that I
8 have five minutes and I shall be winding up within
9 those five minutes. If that information is incorrect,
10 then I have overstepped my time limit and I apologise.
11 JUDGE KARIBI-WHYTE: I think you haven't, but
12 conclude your address.
13 MS. RESIDOVIC: Thank you. Therefore, the
14 alleged knowledge on the part of third persons and
15 statements to journalists at Television Sarajevo, as
16 his knowledge on the events in Celebici, the general
17 knowledge on the crimes which was not confirmed by
18 interrogations of any of the witnesses, these
19 individual portions on the basis of which the
20 Prosecutor wishes to show that Zejnil Delalic could
21 have certain responsibilities and could have had
22 certain knowledge.
23 Your Honours, as the basic element for
24 establishing responsibility of a superior via a brief
25 analysis of this and other evidence provided by us has
1 not ascertained beyond any reasonable doubt. On the
2 contrary, it has asserted that Zejnil Delalic, neither
3 as a coordinator nor as commander of the said Tactical
4 Group belonged to any of the organs or structures which
5 had competency and authority over the prison. On the
6 other hand, these bodies and structures did not give
7 Zejnil Delalic any authorisation of this kind.
8 Therefore, no prerequisites exist for establishing
9 responsibility on the basis of Article 7(3), Zejnil
10 Delalic should be acquitted of all the charges as
11 brought against him and the counts in the indictment.
12 In the written arguments and in our witness
13 brief, we expound the other elements. But, for
14 purposes of caution, questions of knowledge, I think
15 that these arguments are sufficient to ascertain that
16 Zejnil did not have any reasonable possibility of the
17 criminals. The last murder was committed at the end of
18 July, whereas Zejnil Delalic had no knowledge of the
19 perpetration of any of the crimes listed in the
20 indictment. The last thing that I wish to say is that
21 in our written brief, we set out in detail
22 responsibility according to Article 7(1), Zejnil
23 Delalic was not, nor did personally detained or
24 imprisoned or maintained in confinement any civilians.
25 In that sense, the Prosecutor has not provided any
1 evidence and has not proved beyond any shadow of doubt,
2 and as he did not do so, I propose that Zejnil Delalic
3 be acquitted of all the counts in the indictment and
4 charges brought against him. Thank you.
5 JUDGE KARIBI-WHYTE: Thank you very much.
6 May we now hear the address of counsel for Mr. Mucic.
7 MR. KUZMANOVIC: Thank you, Your Honours.
8 Your Honours, esteemed counsel, this trial began over
9 18 months ago. During that time many faces have
10 changed on both sides of counsel table. On behalf of
11 our client, Mr. Mucic, I thank all of you for your
12 patience, for your time and the seriousness with which
13 you have taken your duties as honoured judges in this
14 Tribunal. We also thank the support staff, the
15 registry, the victim witnesses unit, the interpreters
16 for dealing with us, our problems and the case. They
17 should all be publicly acknowledged. Without them,
18 none of this would go.
19 I would also like to -- having to keep in
20 mind the final submissions, one of my law professors
21 once told me when it came to examinations, I read them
22 I don't weigh them. So keep that in mind when meeting
23 our final submission. It is, roughly, a hundred
25 A large number of witnesses have given
1 testimony in this case. There have been hundreds of
2 documents submitted into evidence. Mr. Moran had
3 mentioned at one point in time during the trial that
4 Judge Jan promised counsel that everyone would be home
5 by Christmas. Unfortunately, it was never confirmed in
6 what year that promise could be fulfilled.
7 Nonetheless, all good things must come to an end. We
8 are now at the end.
9 There are two overriding issues we ask you to
10 keep in your mind throughout these closings. When you
11 deliberate on issues of fact and on issues of law, the
12 burden of proof and witness credibility. With respect
13 to the former, Mr. Mucic submits that the Prosecution,
14 despite attempts from all angles, has failed to prove
15 beyond a reasonable doubt that Mr. Mucic had command
16 authority over Celebici and all the things that flow
17 from that authority.
18 With respect to the later, Mr. Mucic submits
19 that the credibility of the witnesses upon whom the
20 Prosecution relies the most in their case against him,
21 Witness D and co-accused, Mr. Esad Landzo, to name but
22 two, lack credibility. Later in this closing, I will
23 demonstrate how this credibility is lacking.
24 The Prosecution in its closing statement said
25 that this is a case of the accused absolving himself of
1 responsibility. We strongly disagree. The real issue
2 is, what is that responsibility? Is it defined? Does
3 it have any parameters? What is a commander in
4 Celebici? Inherent in attempting to prove that a
5 commander has imputed criminal responsibility as having
6 command. In this case, after proof of command, must
7 come proof of knowledge of unlawful subordinate conduct
8 by commander. This must then be followed by proof of
9 power to deter, investigate and punish unlawful
10 conduct, not based on a commander's orders. We submit
11 that not one witness put forth by the Prosecution has
12 given evidence beyond a reasonable doubt to any of
13 those proofs and parameters. Essentially, the elements
14 of command responsibility. Command authority cannot
15 come from thin air.
16 The Prosecution's position is that Mr. Mucic
17 was the commander because people have said, even second
18 and third hand that he was the commander. That begs
19 the question, what is the commander? There is
20 certainly a reasonable doubt on who was the commander.
21 The Court must be aware of the uncertainty as to who
22 was, in fact, the commander or administrator or warden,
23 whatever term is used of Celebici in May, June and July
24 1992. The Court itself through the Honourable Judge
25 Karibi-Whyte asked this question of a Defence witness,
1 Mr. Sadik Dzumhur and I'll quote it:
2 "QUESTION: Do you, by the way, know the
3 person who was in charge of the persons in Celebici?
4 Who was the head at that time?
5 "ANSWER: What period of time?
6 "QUESTION: Up to June 15, 1992, once
7 perhaps you ceased to go there.
8 "ANSWER: Until June the 15th, I know
9 that a MUP unit was accommodated in Celebici and that
10 heading that unit was Rale Musinovic.
11 "QUESTION: And you know that the MUP
12 was in charge of the prisoners? They were looking
13 after the prisoners detained there?
14 "ANSWER: In that period, yes."
15 There is evidence in the case that suggest a
16 number of other possibilities. The first being that
17 Rale Musinovic was the commander for at least part of
18 that time. There is no evidence that Mr. Mucic was
19 member of the MUP. Dzevad Alibasic is another
20 candidate. Witness D is one as well. Similarly, it is
21 unclear which authority controlled the detainee section
22 of the camp at certain times in 1992. There are
23 several possibilities. MUP, HVO, TO or a combination
24 of all or some of these. None of the lines are clear,
25 all of the lines are blurred. And none has been put in
1 focus by the Prosecution's magnifying glass. It has
2 never been demonstrated where the ultimate authority
3 lay and from whom any person in Celebici derived their
4 authority. In these circumstances, it is not possible
5 to say what authority Mr. Mucic had and how Mr. Mucic
6 could exercise that authority beyond a reasonable
8 First, many military, paramilitary and police
9 units plainly had easy and frequent access to the camp
10 for a multitude reasons. Defence witness Dzumur and
11 defence witness Emir Dzajic clearly reveal the variety
12 of units present there and a number of persons who are
13 candidates for command of the personnel there through
14 July 1992. Mr. Mucic had no rank, belonged in no
15 police, military or paramilitary organisation. I don't
16 think there is a dispute there.
17 Second, there is consistent evidence that
18 other units who plainly had nothing to do with
19 Mr. Mucic would come into the camp and occasionally
20 wreak havoc. The MUP units led by the likes of Jasmin
21 Guska, who was the head of the unit, and Sefko Mucici,
22 the deputy commander come to mind. Given the ability
23 of these units to enter Celebici freely, it has not
24 been demonstrated how anyone, much less Mr. Mucic, had
25 the power to control these entities or entries or to
1 investigate and punish such units. Bearing in mind
2 that the later unit mentioned was itself a military
3 police unit. If the military police itself perpetrated
4 crimes, to whom was Mr. Mucic or anyone, for that
5 matter, expected to make a report of their crimes?
6 Given these circumstances, a person such as
7 Mr. Mucic who was prepared, and there is evidence to
8 take risks of helping Bosnian Serbs to escape to Bosnia
9 Serb control territory, must inevitably fall back on
10 his own personal, moral authority. In the kiosk that
11 was Konjic, Celebici and Bosnia-Herzegovina itself at
12 the time. It was the power of his personality and not
13 any unproven power invested by him by someone the
14 Prosecution has not put on the witness stand that
15 carried the day.
16 At the end of July, 1992, the situation in
17 Celebici turned around dramatically. The bulk of the
18 serious incidents alleged by the Bosnian/Serb witnesses
19 happened in May, June or July. By contrast, although
20 there are some allegations of crimes after the end of
21 July, the general picture of the camp was of an
22 escalating program of transfers to Musala and other
23 outright releases.
24 Now, there is no dispute that Mr. Mucic was
25 in the camp before the end of July, but such presence
1 in and of itself does not prove or indicate that he was
2 at that given moment, the commander or the
3 administrator or the warden or whatever kind of term
4 you want to put to Mr. Mucic. It has already been
5 pointed out that entry into the camp by those that had
6 no function there was relatively easy to achieve. His
7 presence there may well have been either in a personal
8 capacity or in the exercise of some other function,
9 unconnected with the command or administrative
10 hierarchy of the camp. By the way, the Prosecution has
11 failed to disprove that his position was in either of
12 those capacities.
13 In the absence of written documentation of
14 appointment to the position of commander or
15 administrator or warden, it cannot be proved at what
16 date he took over such a position and what powers and
17 duties emanated from Mr. Mucic by such an appointment.
18 The burden of proof, which, as the Court will
19 recall, was the first of two themes I asked the Court
20 to keep in mind at the beginning of the closing
21 argument. It revolves around the phrase, beyond a
22 reasonable doubt. This phrase is codified in the rules
23 of the tribunal, specifically Rule 87(a). And I quote,
24 "A finding of guilt may be reached only when a
25 majority of the Trial Chamber is satisfied that guilt
1 has been proven beyond a reasonable doubt."
2 One American court in Massachusetts in 1850
3 in what is now known as the traditional definition of
4 this phrase in American jurisprudence, defined it as
5 "That state of the case, which, after the entire
6 comparison and consideration of all the evidence,
7 leaves the minds of jurors in that condition that they
8 cannot say they feel an abiding conviction to a moral
9 certainty and the truth of the charge."
10 THE INTERPRETER: Please slow down.
11 MR. KUZMANOVIC: Mr. Mucic submits that after
12 the entire comparison and consideration of all the
13 evidence in this case, that this honourable Tribunal
14 cannot, to paraphrase that case, feel an abiding
15 conviction to a moral certainty of the truth of the
16 charges in the indictment against Mr. Mucic.
17 The second issue I ask the Court to keep in
18 mind is the issue of credibility of witnesses. The
19 Prosecution in their final written submissions advance
20 their case on the basis that each and every one of
21 their witnesses was telling the truth at all times and
22 that none of their credibility was impeached. At best,
23 we think such an approach is misleading. Mr. Moran
24 pointed out too numerous examples, which I will not
25 cover again, of how some witnesses were to be
1 hopelessly untruthful. Mr. Vukalo was one example.
2 Another example was the Witness T, Mrs. Cecez's,
3 digression. There are numerous other examples of
4 witnesses who were properly impeached by similar means
5 or in other ways.
6 This trial has particular significance in the
7 context of various conflict in the former Yugoslavia.
8 One which was established by the prosecution itself
9 when settling this indictment and is one which creates
10 a positive incentive for untruthful evidence to be
11 given. On March 22nd of 1996 the ICTY announced the
12 first indictment of four alleged perpetrators of crimes
13 against Bosnian Serb victims. Whether it was intended
14 or not, this emphasis by the OTP, "On the first
15 indictment dealing with Bosnian Serbs," immediately
16 made it a case for political significance for the
17 Bosnian Serbs and for the Serbs. Until that time, the
18 subject of the indictments have been largely, if not
19 exclusively, Serbs or Bosnian Serbs.
20 In this propaganda war which ensued, it was
21 plainly important for there to be presented a picture
22 of atrocities against Bosnian/Serbs or Serbs to counter
23 or deflect the impression that only war criminals were
24 from such a background. It is evident that the
25 prosecution had to rely on a Serb refugee
1 organisation to put some of its case together as well.
2 In assessing the credibility of witnesses, we
3 submit that the Trial Chamber should at all times be
4 alert to this fact and bear in mind the significant
5 degree of involvement in this case of that Serb
6 refugee organisation. Their view of the world was
7 clearly demonstrated by the medical notes kept by
8 Witness O, a prominent member of that association, who
9 with frequent references to examining Bosnian Serbs,
10 who had been in an Ustasha camp, clearly reveals the
11 agenda that was being pursued.
12 Mr. Moran mentioned the old axiom truth is
13 the first causality of war. Given the opportunity
14 incentive that the trial presents to Bosnian Serb or
15 Serb elements to influence or described on one occasion
16 as "our witnesses," was during Witness O's TV interview
17 with a Serb TV station in June of 1997. Evidence of
18 "our witnesses" has to be approached with even more
19 care than is usual in a situation such as this.
20 The issue of credibility also arises in
21 relation to the co-accused, Esad Landzo. Two points
22 here: Point one, it has been quite clearly
23 demonstrated that he is a witness who is incapable of
24 being treated as a credible witness. It is quite
25 obvious that he is a person who may lie at any time and
1 who may, if he considers that such lies would help to
2 save his skin, do so. He has claimed that he was
3 prepared to lie at the suggestion of his first counsel,
4 Mr. Brackovic, who allegedly advised him to blame
5 Mr. Mucic because Mr. Mucic was a Bosnian Croat and not
6 a Bosnian Muslim. He has clearly told lies to those
7 who have been investigating events at Celebici. He has
8 now made allegations against both Mr. Delic and
9 Mr. Mucic about their alleged influence over him while
10 at Celebici. We believe that he does not have
11 credibility and that his evidence should be
13 Point two --
14 JUDGE KARIBI-WHYTE: We may have a break at
15 this stage and resume at 4.30.
16 MR. KUZMANOVIC: Certainly, Your Honour.
17 --- Recess taken at 4.00 p.m.
18 --- On resuming at 4.35 p.m.
19 JUDGE KARIBI-WHYTE: You may proceed.
20 MR. KUZMANOVIC: Thank you, Your Honour. As
21 you recall, before the break there were two questions I
22 wanted to mention with respect to Mr. Landzo's
23 testimony on credibility; first point being
24 Mr. Landzo's voracity.
25 Point two is this: More curious and quite
1 puzzling is that the Prosecution in their final written
2 submission seeks to invite the Trial Chamber to rely
3 upon Mr. Landzo as a witness of the truth. Later in
4 the same document they seek to impeach him as witness
5 whose evidence is not credible. The Prosecution should
6 not be allowed to have it both ways, either he is
7 credible or he isn't.
8 And it's closing submission, written
9 submission, the Prosecution referred to the Pohl case
10 when speaking of Mr. Mucic. Karl Mummenthey, as if
11 drawing a comparison between him and the crimes he
12 committed and Mr. Mucic. That case concerned those who
13 had had a part in the management of concentration camps
14 and slave labour under the Nazi administration in
16 There is a huge distinction between that
17 case, a case where the defendants knowingly set out to
18 participate in the Nazi programme of extermination and
19 slavery, rather than the case of Celebici, which was
20 turned from a military supply depot into an ad hoc
21 detention facility on short notice under all the
22 exigencies and the onset of war in the territory of
23 Bosnia and Herzegovina.
24 We believe this is a fairly gratuitous
25 reference which has misjudged the role and nature of
1 Mr. Mucic and the essential characteristics of the
2 camp. As much as the Prosecutor wants to convict
3 Mr. Mucic, we believe this comparison is wrong. We see
4 no more about this attempt to characterise Mr. Mucic as
5 an evil man, as quoted in the brief, other than it is
6 completely inappropriate.
7 There is, of course, quite a different side
8 to Mr. Mucic, and it's worth remembering some of the
9 observations made by witnesses who testified here,
10 Mr. Golubovic being one, who have accurately assessed
11 Mr. Mucic as a human being.
12 On page 2197 of the transcript the question
13 was put to Mr. Golubovic, "Do you remember saying this
14 to the OTP, quote, if at least 20 per cent of people of
15 Bosnia were like Mucic, there would have been no war?"
16 End quote.
17 "Answer: I remember that. That is what I
19 "Question: That is a fair remark, is it not,
20 Mr. Golubovic?
21 "Answer: Yes, it is, I think that still.
22 This man was a Prosecution witness put
23 forward by the Prosecution as someone upon whom you
24 could rely. In considering the man, Mr. Mucic, it is
25 better to look at the evidence about him rather than
1 gratuitous remarks which compare him with one of the
2 notorious Nazi war criminals tried at Nuremberg at the
3 end of the second World War.
4 Also in the words of Nedeljko Draganic
5 (Phoen) at 1694 of the transcript: "What you told in
6 the investigators was this, that Pavo Mucic enjoyed a
7 good reputation in the community as a fair and good
8 man. That is in your statement, that is what you were
9 telling the investigators in October 1995. Do you
10 accept that?"
11 "Answer: Yes, I said that.
12 And later, on 1701:
13 "Question: It is for these reasons that we
14 have been discussing just now that you have a good
15 reason to thank Mr. Mucic.
16 "Answer: Yes.
17 "Question: And to be grateful to him for
18 having, as you acknowledged, saved the life of not just
19 yourself, but in fact your family.
20 "Answer: Yes."
21 This reputation for helping the Bosnian
22 Serbs, in addition to evidence of him inhibiting
23 activities, must be viewed against the background of
24 evidence of Witness D on pages 5408 through 5410 of the
25 transcript. I think this is very significant, Your
1 Honours, with respect to Witness D.
2 The question was posed to him: "Can you help
3 us? You were aware of the existence of representatives
4 of international bodies in the Konjic area, were you,
5 at the time this was taking place?"
6 "Answer: UNHCR was definitely there among
7 the international organisations. I don't know where
8 their premises were. The international Red Cross, I
9 don't know if they were in Konjic.
10 "Question: Did you make any attempt to
11 bring your concerns about Celebici camp to their
13 "Answer: I did not try to do that, and
14 frankly, I didn't even know where to go. But I wasn't
15 thinking of that. I was thinking about what we were
16 doing and what we should be doing. Unfortunately, I
17 have to say that I did not say everything that I could
18 have done, speaking from where I speak now, today. You
19 know afterwards, you see that you didn't do everything
20 that you could have done at the time, unfortunately.
21 "Question: Was one of your concerns if you
22 had been seen to do that, to report matters to
23 international bodies, that would have been seen as
24 helping Chetniks?
25 "Answer: You asked a very good question.
1 That speaks of the situation that I described before we
2 had the break for lunch.
3 "Question: To be perceived as helping
4 Chetniks, you have told us, would be a dangerous thing
5 for your health.
6 "Answer: Of course. Not only mine.
7 "Question: But certainly that was your
8 perception, that there was danger in it.
9 "Answer: That is a different issue. It was
10 dangerous to offer assistance, and the danger came from
11 those elements, who without thinking clearly or
12 reasonably, simply hatred arose among them, that
13 everybody should be hated in general, and then you
14 could encounter such people that could do just anything
15 to you without thinking."
16 This is important uncontroversial evidence
17 from Witness D. What it indicates is it was dangerous
18 for one's personal safety to be seen or thought of as
19 helping quote, "Chetniks", end quote, which it may be
20 accepted was the prevailing atmosphere at the time.
21 The Prosecution gave this witness a glowing
22 testimonial, which in light of Defence evidence
23 presented about his role, may be seen as inaccurate.
24 But according to the Prosecution, Witness D
25 was such a good man, despite the fact that he took no
1 steps to report facts which he claimed had come to his
2 attention about crimes to the police, or to
3 international humanitarian bodies.
4 Now, the situation was not any different for
5 Mr. Mucic. Even if he had command authority, he would
6 have faced at least the same problems as D, if not more
7 so. If an experienced and senior ex-secret policeman
8 felt he did not have the knowledge or ability to make
9 more report about these matters, the Prosecution have
10 not shown why and to what extent Mr. Mucic's position
11 was any different.
12 It may be well thought to be common sense
13 that to be seen as a friend of the Bosnian Serbs would
14 have brought about repercussions for Mr. Mucic that
15 would have seriously inhibited his ability to exercise
16 any power he had to protect the detainees.
17 It may well be that Mr. Mucic had no more
18 power to do so than his own moral force to inhibit or
19 prevent mistreatment.
20 It has not been proven whether he was a
21 military commander or a civilian warden or
22 administrator and it certainly has not been proven in
23 either case what powers were given to him to
24 investigate and punish those who mistreated detainees.
25 In the absence of such proof, it is not
1 possible to say that he had any power to punish. But
2 the weight of the evidence is that whatever his
3 undefined power was, he could not exercise it in any
4 way since he could not get beyond the first step of
5 identifying the perpetrator. If he was unable to
6 identify who had done it, he could not have done
7 anything to punish or would not have had anyone to
8 report to.
9 I would like to now briefly focus the Court's
10 attention to some issues of law. On the nationality
11 issue we rely on what amounts to an admission that the
12 persons alleged in the indictment were somehow, quote,
13 "non-nationals", end quote, of Bosnia-Herzegovina,
14 were in fact of Bosnian nationality, contained in
15 paragraph 2 of the indictment.
16 Think about this for a moment, Mr. Moran
17 mentioned it: It's very simple but very compelling.
18 Why are they called Bosnian Serbs? Because they are
20 The Prosecution describes those who were
21 detained at Celebici as Bosnian Serbs, which amounts to
22 a clear and unambiguous identification by the
23 Prosecution of the nationality of the detainees as
24 Bosnian which no amount of legal limbo can undo. It is
25 not a distinction without a difference.
1 Exhibit 130, in their written submission the
2 Prosecution relies on it as if it was proved it was a
3 document created and signed by Mr. Mucic. There is no
4 evidence this document was signed by Mr. Mucic. It
5 will be recalled that the Prosecution was not permitted
6 to prove the letter allegedly written by him to a
8 A consequence of that decision is there is no
9 evidence from a handwriting expert that Exhibit 30 was
10 signed by Mr. Mucic. It is, therefore, we believe,
11 misleading to treat it as though it was proven to be
12 signed by him. It was not found in his possession, it
13 was never put to him in any interview and has never
14 been acknowledged by him. And no one from the Bosnian
15 embassy was brought in to authenticate the document.
16 There is no evidence which proves it is his document.
17 As to the Vienna documents generally, we rely
18 on the arguments of the defence of Zejnil Delalic
19 throughout this trial and in their closings.
20 With respect to other general allegations in
21 the indictment, the Prosecution has failed, we believe,
22 to prove this was an international armed conflict, or
23 if there was an international armed conflict, that the
24 fighting in the Konjic Municipality had a sufficient
25 nexus to that conflict to make the events in that
1 municipality part of the international armed conflict.
2 We rely on the argument of the others there, as well.
3 Mr. Mucic, on the Article 3 charges, would
4 refer the Court to Mr. Greaves' discussion and to the
5 final submissions for the analysis there.
6 In summary, the Prosecution has failed to
7 prove its case against Mr. Mucic. There is no credible
8 evidence he took part in any act of mistreatment.
9 There is no credible, reliable evidence that he
10 witnessed any mistreatment that would fall within the
11 definition of murder, torture, causing great sufferings
12 or serious injury or inhumane or cruel treatment as
13 discussed by Mr. Greaves.
14 There is no credible, reliable evidence that
15 he knew in advance that any act of mistreatment was
16 going to take place or that he had any duty or even any
17 veil of authority to punish or prevent such acts.
18 There is no evidence as to what authority or
19 power he possessed. It is not proven that he had the
20 power and authority to investigate and punish anyone;
21 therefore, he can't be said to have properly failed to
22 investigate and punish those over whom he had no
24 There is no credible, reliable evidence that
25 proves what Mr. Mucic's position at Celebici was or
1 what his authority was beyond a reasonable doubt. The
2 Prosecution has failed in its burden of proof. We
3 therefore ask this Honourable Tribunal to return a not
4 guilty verdict on each count of this indictment for
5 Mr. Mucic. Thank you.
6 JUDGE KARIBI-WHYTE: Thank you very much.
7 MR. O'SULLIVAN: Your Honours, can I point
8 out an error in the transcript? During his submissions
9 Mr. Kuzmanovic mentioned Mr. Delic, and the transcript
10 mentions Mr. Delalic on page 109 of Live Note, line
11 18. Line 18 reads "made allegations against
12 Mr. Delalic and Mr. Mucic," and I believe
13 Mr. Kuzmanovic said "against Mr. Delic and Mr. Mucic."
14 I ask that that be corrected, please.
15 JUDGE KARIBI-WHYTE: Thank you.
16 You may proceed Mrs. McMurrey.
17 MS. McMURREY: May it please the Court.
18 Thank you, Your Honours.
19 I'm Cynthia McMurrey, and along with Nancy
20 Boler and Calvin Saunders, we represent Esad Landzo.
21 This, the International Criminal Tribunal for
22 the Former Yugoslavia, is completing the first
23 multi-defendant war crimes trial ever attempted under
24 this genesis of an innovative new law, and it's aimed
25 at controlling the way that we participate in war.
1 It's aimed at controlling and instilling a conscience
2 on the world as we see it today.
3 This is a real, a very noble goal. The
4 multi-national character of these proceedings forces
5 this Tribunal to construct a set of principles that are
6 not familiar to any one advocate or one jurist. We all
7 came in here, I know how uncomfortable it was at first,
8 because we were all unsure about what laws applied; but
9 we're coming out of this in a comfortable way. We know
10 what to expect when we come to the proceedings now. We
11 don't have an absolute definition of what the law is at
12 this point, but I'm proud to be a part of being here
13 and constructing this new foundation for international
14 criminal law, and I want to thank this Court and I want
15 to thank the Registry, and I want to thank the Victim
16 and Witnesses Unit and security, and all of you for
17 putting up with us and being very understanding and
18 helping us solve our problems.
19 As my colleague, Mr. Kuzmanovic, mentioned a
20 while ago, the political motivations apparent in the
21 Celebici case sprang from the fact that the Prosecutor
22 must prove to the international community that she is
23 interested in administering even-handed justice. This
24 was her purpose stated in the Celebici indictment.
25 Even-handed justice is both a sword and a
1 shield, and for reasons of equity, example and
2 precedent, this Tribunal must not tolerate a
3 manipulation of this even-handed justice. Then there is
4 no justice.
5 Although the statute of this Tribunal is
6 attempting to create individual responsibility for
7 crimes stated in Article 2 through Article 5, the aim
8 of the founders of customary international law was that
9 this Tribunal should be focused on persons or
10 governments acting with authority for such crimes.
11 The Prosecutor of this very Tribunal, Louise
12 Arbour, has given support to this limitation on
13 prosecution by entering into an agreement with the
14 government of Rwanda. The agreement is that only
15 persons with authority or command responsibility will
16 be tried in the International Tribunal for Rwanda. All
17 the others will be tried and continue to be tried in
18 the National Court.
19 This double standard for justice verges on
20 hypocrisy to have the Prosecutor in the Rwandan
21 Tribunal say they will concentrate on people with
22 authority and do absolutely the opposite here in this
23 Tribunal with a young guard named Esad Landzo.
24 Last month we had various members of all the
25 members of the United Nations meeting in Rome to
1 promulgate the rules to set up a permanent
2 international criminal court. The Rome statute was
3 adopted on July 17th. One of the main arguments put
4 forth in the forum in Rome contends if a statute of the
5 permanent court is allowed to remain so broad, the
6 permanent court will become a dumping ground for all
7 the complaints.
8 A line must be drawn, and Louise Arbour has
9 drawn that line with the Tribunal, and she is
10 continuing to draw that line by recently dismissing the
11 indictments against 16 Serb detainees accused of war
13 Her reasons were consistent with an agreement
14 of the Rwandan Tribunal. At the moment it is not
15 possible to maintain complex separate trials for such
16 connected acts committed by the accused who could be
17 tried in the appropriate way, also in the national
18 state courts.
19 Mrs. Arbour recites procedural economy and
20 excessive expenses as further reasons for dismissal.
21 It was also stated that the Tribunal wants to separate
22 the big fish from the small fish.
23 Esad Landzo was targeted for Prosecution for
24 three reasons: One, the Prosecution needed to display
25 an example of prosecuting a Bosnian Muslim. Two, he
1 voluntarily surrendered upon request, driving to
2 Sarajevo and turning himself in to custody. And three,
3 he is the token guard that the witnesses can now
4 identify, because he's the one here on trial.
5 In construing the statute of the Tribunal,
6 history and experience outweigh logic. A bright line
7 is drawn between those who incite and those who act out
8 of a blood borne loyalty, misguided though it may be,
9 to those they see as their kin.
10 It is the calculated and cultivated culture
11 of inhumanity at which world opinion aims, not the
12 nameless guard who becomes infected with the virus.
13 In our world among people who share the
14 notion of civility and common decency, there is a
15 shared perception that those who conceive, plan and
16 execute crimes against humanity should be caught and
17 punished. From such high convictions this Tribunal
18 draws its strength. It shouldn't be squandered on the
19 pursuit of common ordinary soldiers or prison guards.
20 The Celebici case represents the first
21 assertion of the Defence of diminished mental
22 responsibility. This defence, if proven by a
23 preponderance of the probabilities, will result in a
24 finding that Esad Landzo was not guilty of the
25 allegations of murder in the Celebici camp.
1 Ms. McHenry may view this defence as a joke,
2 but there is a lot more to it than getting butted in
3 the head by a billy goat.
4 The evidence presented by the mental health
5 experts, Prosecution and Defence, supports the fact
6 that Esad Landzo was suffering from a severe
7 personality disorder from the time he was a very young
8 boy. He was sickly, asocial and dependent. Overlap
9 this basic personality disorder with post-traumatic
10 stress disorder, PTSD, and what is created is a state
11 of mind which results in diminished mental
13 The triggering trauma adding up to the PTSD
14 was Esad Landzo's forced participation in a Croatian
15 military training camp in March, April or May of 1991.
16 Anyone, much less an 18-year-old boy, who was forced to
17 sit in a room and be instructed how to effectively slit
18 a human being's throat in front of him and participate
19 in that while watching video-tapes of what crimes were
20 being committed on the civilians in the area, would
21 suffer a trauma.
22 The mental health experts demonstrated how
23 Esad Landzo was unable to exercise his own free will in
24 the Celebici barracks in 1992.
25 The credibility of the Prosecution witnesses
1 who testified is surely suspect. As Mr. Moran and
2 Mr. Kuzmanovic have already cited, although he didn't
3 mention a name, when an association such as the
4 association of detainees in Belgrade is allowed to hold
5 testifying seminars and allowed to have a
6 representative in the courtroom every day the evidence
7 is presented, there is injustice.
8 That representative sat here in the courtroom
9 every day and reported back to the association of
10 detainees what the testimony was, what the
11 cross-examination was. Of course they could get their
12 stories straight.
13 And much of the evidence presented by these
14 witnesses reflected the use of the same terms over and
15 over again.
16 The conclusion that is relied upon by this
17 defence is simple. The Prosecutor has failed to
18 present sufficient evidence to allow a rational trier
19 of fact to find all evidence, all elements of every
20 count or series of counts beyond a reasonable doubt;
21 and two, has failed to present sufficient evidence to
22 show a violation of international law by this Tribunal.
23 At this point, so I'm not going to reiterate
24 all the arguments, the Defence of Esad Landzo wishes to
25 adopt the legal arguments put forth by Mr. Moran as far
1 as international armed conflict goes, protected person,
2 Common Article 3, and the arguments by Mr. Greaves as
3 far as our submissions on intentional killing and
4 torture, which I hope to have a definition for Judge
5 Jan when we come back for rebuttal.
6 The accused in the -- in fact, Mr. Moran did
7 an excellent job simplifying these very complicated
8 legal issues so that I think everybody could understand
9 them. And now, the burden is beyond a reasonable
10 doubt, not like it was at the half-time motion, though.
11 Article 21.3 mandates that the accused shall
12 be presumed innocent until proven guilty beyond a
13 reasonable doubt. And this Trial Chamber is well aware
14 of the higher burden, that there is no higher burden
15 allowed under law.
16 This Trial Chamber must now review the
17 allegations against Esad Landzo, as set forth by the
18 Prosecutor in the indictment, and decide whether the
19 Prosecution has proven each and every allegation beyond
20 a reasonable doubt. We believe they have not.
21 As I've been describing, whether you title it
22 selective prosecution or you title it tokenism, a
23 selective prosecution is one brought for reasons that
24 are forbidden by governing law. In the United States
25 there exists a strong body of legal jurisprudence to
1 defend against selective prosecution. The decision to
2 prosecute may not be based on any unjustifiable
3 standard, such as race, religion or other arbitrary
5 In order to effectively assert selective
6 prosecution, a defendant must make a threshold showing
7 that the Prosecution declined to prosecute similarly
8 situated suspects of other races or religions --
9 INTERPRETER: Please slow down.
10 MS. McMURREY: -- and that the defendant was
11 singled out for prosecution on the basis of race or
12 religion. Considering the following, the burden
13 described above has most certainly been met.
14 Now, I'm going to ask that this Court please
15 have some tolerance for this. I'm going to try to use
16 the ELMO in conjunction with my final argument. So, at
17 this point, would you put number 1 up, please?
18 Notwithstanding the proof that in the ICTR
19 for Rwanda, the Prosecutor maintains an agreement that
20 the Rwandan government, to prosecute only those accused
21 who are considered big fish, she continues to support
22 this policy here. On April 28th, 1998 in the
23 Prosecutor versus Sikirica, S-I-K-I-R-I-C-A, case
24 number 95-8 here, the Prosecutor, Louise Arbour, sealed
25 the precedent that ordinary soldiers, or those without
1 command responsibility, should not be prosecuted in
2 this international forum.
3 In these legal documents and in her statement
4 made by the Prosecutor following the withdrawal of the
5 charges against the accused, Mrs. Arbour concluded:
6 "In light of that situation, I have re-evaluated," and
7 I'm quoting, "re-evaluated all outstanding indictments,
8 vis-à-vis the overall investigative and prosecutorial
9 strategies of my office. Consistent with those
10 strategies which involve maintaining an investigative
11 focus on persons holding higher levels of
12 responsibility are those who have been personally
13 responsible for the exceptionally brutal or otherwise
14 extremely serious offences --
15 INTERPRETER: Could the speaker please slow
17 MS. McMURREY: -- to withdraw the charges
18 against a number of accused in what has been known as
19 the Omarska and Keraterm indictments which were
20 confirmed in February and July of 1995. This decision
21 was taken in an attempt to balance --
22 JUDGE KARIBI-WHYTE: Did you hear the --
23 MS. McMURREY: I'm sorry.
24 JUDGE KARIBI-WHYTE: Did you hear them? Slow
1 MS. McMURREY: Hit me.
2 This decision was taken in an attempt to
3 balance the available resources within the Tribunal and
4 in recognition of the need to prosecute cases fairly
5 and expeditiously. I wish to emphasise that this
6 decision is not based on lack of evidence in respect of
7 these accused. I do not consider it feasible this time
8 the hold multiple separate trials for related offences
9 committed by perpetrators who could appropriately be
10 tried in another judicial forum such as a state court.
11 Esad Landzo steps clearly into these shoes of the 14
12 accused dismissed by the Prosecutor because she wishes
13 to maintain an investigative focus on persons holding
14 higher levels of responsibility and for fiscal
16 All of the accused whose indictments have
17 been dismissed by the Prosecutor are of Serb
18 ethnicity. The three Bosnian Muslims charged in the
19 Celebici indictment remain the only Bosnian Muslims
20 charged in this Tribunal. If the ordinary soldiers who
21 are of Serb ethnicity are dismissed because of the
22 desire of the Prosecutor to concentrate on those
23 violators of higher levels of responsibility, then in
24 the name of equity and fairness, the indictment against
25 Esad Landzo should necessarily be dismissed. Pardon?
1 JUDGE JAN: Are you taking up this position
2 with the Prosecutor?
3 THE INTERPRETER: Microphone, please.
4 MS. McMURREY: No, Your Honour, I have not
5 taken up the position with the Prosecutor.
6 JUDGE JAN: It is for the Prosecutor to
7 decide whom to prosecute and whom not to prosecute.
8 MS. McMURREY: You're right. I think that
9 the ball was rolling so significantly in this case that
10 it would have been most inopportune for Ms. Arbour to
11 have dismissed this one at the same time she dismissed
12 the counts against the Serb indictees. But it doesn't
13 make it any more proper or just under the
15 Notwithstanding the fact that the three
16 Muslim accused in the Celebici indictment represent the
17 only Bosnian Muslims accused in this Tribunal, Esad
18 Landzo in 1992 was an 18-year-old prison guard with no
19 prior military training. There is no position lower in
20 the military hierarchy than that held by this young
21 man. The maintenance by the Prosecutor of an
22 indictment against Esad Landzo clearly violates Article
23 21(1) of the Statute of the ICTY. Article 21(1)
24 guarantees all persons shall be equal before the
25 International Tribunal. If there is to be equality
1 under the statute of the ICTY, the entire indictment
2 against Esad Landzo should be dismissed and referred
3 back to the state of Bosnia-Herzegovina for
5 There is statutory support for the
6 Prosecution of those with command responsibility. That
7 was covered in the written final submissions, so I am
8 not going to cover the statutory support at this time.
9 If the indictment and charges against Esad
10 Landzo are allowed to remain the subject of
11 Prosecution, then Article 21 becomes moot. This
12 Tribunal should not confuse the premise of even-handed
13 justice with a political agenda supporting this type of
15 Rule 67(a)(ii)(b) of the rules of procedure
16 provide for a special defence, the Defence of
17 diminished mental responsibility. Although this
18 special defence is prevalent in jurisdictions based on
19 British common law, it's unique to the war crimes
20 arena. The Nuremberg trials utilised the premise of
21 diminished mental responsibility. It was limited to
22 mitigation of punishment. Although this is a special
23 Defence provided for in the rules, there are no legal
24 guidelines which to follow.
25 On June 18th the Trial Chamber did rule that
1 the burden of proving a Defence lies with the Defence
2 and that the standard of proof is by a preponderance of
3 the probabilities. The Trial Chamber reserved its
4 decision on the definition of diminished mental
5 responsibility until final judgement. Because there is
6 no decision of the Tribunal on the legal test of
7 diminished responsibility to be applied, preparation
8 for presentation of evidence regarding the accused has
9 been prejudiced pursuant to the statute.
10 THE INTERPRETER: Slow down.
11 MS. McMURREY: The Defence proceeded to
12 present evidence without a clue of what it was that
13 must be proven in order to surmount the burden of proof
14 which now shifted to Esad Landzo. I want to try to
15 differentiate too. Many times throughout this trial,
16 you heard people referring to the Prosecution's mental
17 health expert, right or wrong? Ms. McHenry in her
18 closing statement today referred to whether he knew
19 right from wrong. That is not the legal standard that
20 is to apply here. That would be lack of mental
21 responsibility. The Defence of Esad Landzo is claiming
22 diminished responsibility.
23 Diminished responsibility was provided for in
24 the Homicide Act of 1957 in Great Britain. This is the
25 definition that we're relying on. I think it's the
1 most prevalent in our society or in the international
2 community which states that -- I hope we're not relying
3 on it improvidently -- "But where a person kills or is
4 a party to a killing of another, he shall not be
5 convicted of murder if he was suffering from such
6 abnormality of mind, whether arising from a condition
7 of arrested or retarded development of mind or any
8 inherent causes or induced by disease or injury as
9 substantially impaired his mental responsibility for
10 his acts and omissions in doing or being a party to the
12 The definition of abnormality of mind that is
13 relied upon also comes from British common law. The
14 case out of Great Britain, which is cited in my final
15 submission says, "Abnormality of mind means a state of
16 mind so different from that of the ordinary human
17 beings, that the reasonable man would term it
18 abnormal." This definition covers the mind's activity
19 in all aspects. Not only the perception of physical
20 acts and matters and the ability to form a rational
21 judgement, whether the act was right or wrong, but also
22 the ability to exercise willpower to control physical
23 acts in accordance with that rational judgement. So,
24 what it boils down to is whether because of the
25 abnormality of his mind he was able to exercise his own
1 free will.
2 If the fact finder is satisfied by a
3 preponderance of the probabilities that the accused was
4 suffering for the abnormality of mind for one of the
5 causes specified in parenthesis, the second prong of
6 the test arises. Was the abnormality such as
7 substantially impaired his mental responsibility for
8 his acts in or doing or a party to the killing. This
9 is a question of degree and essentially for the
10 fact-finder. Without the definition, though, it was
11 very difficult. How could the Defence know what it
12 must prove? How could the defence advise and give
13 legal perimeters to the experts witnesses that
14 testified. How could the Prosecutor know how to
15 effectively cross-examine? I hope that our reliance in
16 this definition was not too far off base.
17 The Defence of Esad Landzo has shown this
18 Trial Chamber that Esad Landzo was a sickly, fragile
19 boy to begin with. At the outbreak of the aggression
20 against Croatia, this 18-year-old boy was subjected to
21 the most horrific experience in a Croatian military
22 training facility. This facility shocked the senses
23 and moral integrity of the young students by showing
24 violent videos depicting atrocities that were being
25 executed upon people that the Serbs captured and
1 culminating with live demonstrations on how to neatly
2 torture and murder live, Serb civilians.
3 After this brain-washing experience, the
4 aggression came to his own home: his village, his
5 friends and his family were under attack. The very
6 existence of his culture was to be destroyed. All
7 able-bodied males, even young boys, were called up for
8 the Territorial Defence. Esad Landzo had no military
9 experience, but he became a member of the Territorial
10 Defence and all the young boys with no experience were
11 stationed, not all of them, but he was stationed along
12 with 20 others to provide security for the Celebici
14 The Defence of Esad Landzo relies upon the
15 autonomous decisions of three forensic psychiatrists:
16 Dr. A.M.H. Van Leuween, Dr. Marco Laggazi, and Dr.
17 Edward Gripon. And one clinical psychologist, Dr.
18 Alfredo Verde, who offered evidence. Esad Landzo also
19 relies upon the evidence elicited from the mental
20 expert called by the prosecutor, Dr. Landy Sparr.
21 In summary, the four mental health experts
22 called, arrived independently at roughly the same
23 conclusions and all agreed that he suffered from a
24 personality disorder under Axis 1 of the DSM IV
25 criteria and that was superimposed over an Axis 1
1 disorder which they called anywhere from PTSD to acute
2 anxiety disorder to an adjustment disorder, which were
3 all relatively the same thing. These extract
4 personality disorders, ranging from dependant to mixed
5 personality disorder, were all describing the same
6 abnormality of mind.
7 Dr. Van Leuween, who was a Dutch forensic
8 psychiatrist initially became involved in these
9 proceedings at the request of the registrar.
10 Dr. Van Leuween diagnosed Esad Landzo from October 1996
11 until recently. He said he was suffering from a mixed
12 personality disorder and borderline schizoid and
13 dependant traits. He did not diagnose Mr. Landzo with
14 PTSD in 1992 because he believed Mr. Landzo was still
15 suffering under an ongoing trauma in 1992, so the PTSD
16 didn't develop until later. Dr. Van Leuween explains
17 why he cannot place Mr. Landzo's personality disorder
18 in one category. He said that, so he has a personality
19 disorder, but, no, it's more obvious that it's a mixed
20 personality disorder. It is not one category. You
21 need to use more categories to describe the realities
22 of this person. All the mental health experts describe
23 Mr. Landzo's dependant personality in different terms,
24 but they all came up with the premise of the false
25 self. The dependant personality disorder was further
1 described by Dr. Van Leuween. Dr. Van Leuween said in
2 Number 6:
3 "QUESTION: Those borderline
4 personalities, those are cognisable personality
5 disorders, aren't they?
6 "ANSWER: Yes. Do you see this person?
7 How dependant he is? He told me in that camp he was
8 under the influence of Mr. Delic."
9 When asked by Judge Karibi-Whyte to explain
10 the difference between a person suffering from a
11 dependent personality disorder and the need to obey a
12 priest or a soldier, Dr. Van Leuween explained, "Of
13 course. There is a difference between knowing that you
14 are obeying because the situation asked you to obey or
15 obeying with closed eyes because you can't do anything
16 else other than obey. And you can't do anything else
17 other than obeying with closed eyes."
18 Dr. Van Leuween's conclusions came up also
19 that there was an abnormality of mind and that the
20 abnormality of mind -- and I am going now to No. 10
21 what his conclusion is. That summarising his
22 findings. What is your conclusion? "The consequence
23 of clinical conclusion, that somebody was in a mental
24 condition which diminished his capacity to exercise his
25 own free will from a forensic psychiatric point of
1 view, my advice would be to consider him to have
2 diminished responsibility at the time of the acts."
3 And Dr. Van Leuween went on further. Now
4 when asked by counsel for Mr. Delic, question by Mr.
6 "QUESTION: You've described him as a
7 dependant personality, does that mean if there is a
8 strong authority figure he would become dependant on
9 that authority figure and do what that authority figure
10 told him to do?
11 "ANSWER: Yes."
12 That's transcript page 14236. Alfredo Verde came up
13 with the same results of his clinical evaluations.
14 Alfredo Verde said that he was suffering from an
15 abnormality of mind in 1992. That he could not control
16 his behaviour as a result of an abnormality of mind.
17 And that:
18 "QUESTION: As a result of the
19 abnormality of mind, would you say that he was in a
20 state of diminished mental capacity?
21 "ANSWER: Yeah.
22 "QUESTION: In Celebici in 1992?
23 "ANSWER: Yeah."
24 Transcript, 14403.
25 When questioned by Judge Karibi-Whyte about
1 the abnormality of mind, Dr. Verde explained, "And he
2 was not such a capacity, but he tends to put on, to
3 wear the clothes of others. It's rather like an
4 animal. A chameleon. Yes, changing colours according
5 to the environment."
6 Dr. Lagazzi arrived at the same conclusions,
7 a forensic psychiatric from Genoa, Italy, he was called
8 here at the request of the Prosecution in 1996. He has
9 been evaluating Mr. Landzo over that period.
10 No. 12. Dr. Lagazzi said he clearly fits
11 under the DSM IV category of mixed personality
12 disorder. When you begin with these various
13 personality disorders and then you overlay these with
14 PTSD, you result in a severely enhanced condition of
16 When Judge Karibi-Whyte asked Dr. Lagazzi to
17 relate the personality disorder to the mental ability
18 of the accused person to commit offences against which
19 he is charged and the extent to what he is responsible,
20 Dr. Lagazzi replied: "So, what I have done is to
21 assess the individual. And I believe that this kind of
22 personality in specific circumstances of authority may
23 lead to the acceptance of an order and lead, in turn,
24 to certain attitudes without using one's own free
25 choice." In other words, where free will is absent.
1 And Dr. Lagazzi continued, "In other words,
2 Mr. Landzo had a clinical condition and it was probable
3 on the basis of that condition that when he received
4 very specific orders, he would then act in a non-free
5 manner." Transcript 14551 through 552. He also went
6 on to describe the "Zelig" movie by Woody Allen. He
7 gave you the instruction or the example of the red
8 shoes where normality spills over into abnormality. He
9 also came to the same conclusions as the other ones.
10 No. 14. When he was asked whether he was
11 suffering from an abnormality of mind in 1992, the
12 answer was "yes." When asked if this abnormality of
13 mind influenced his ability to control his behaviour in
14 the setting as a guard in Celebici in 1992, the
15 answer: "There is a probability that it did influence
16 his behaviour." When asked whether he suffered from
17 lack of free will in 1992, the answer was: "I can tell
18 you that this lack of free will was in all likelihood
19 to be found at the time he was in Celebici."
20 Dr. Lagazzi continued, No. 15. "To show why
21 Esad Landzo could not exercise his own free will."
22 "So you believe this man was incapable of
23 exercising free will over a period of say two or three
24 months in 1992, in the summer?"
25 "ANSWER: Sorry, but let me once again
1 go to the logical sequence of the work which I have
2 gotten into. I do have clinical findings to prove a
3 pathological personality disorder. I have a legal
4 definition which I have been given, which refers to
5 abnormality personality as a possible cause for
6 diminished responsibility. And this led me to say, if
7 you combine these two elements, we could say that there
8 is a probability that there is diminished
10 I am not going to go into detail because of
11 the time constraints. Dr. Gripon, who was an American
12 forensic psychiatrist came up with the very same
13 conclusions that all the other forensic psychiatrists
14 came up with and I have the exact quotes set out in the
15 final submission.
16 And then we came to the Prosecutor's expert,
17 Dr. Landy Sparr. Dr. Sparr, when I questioned him
18 about what standard he used to come up with his
19 opinions in his report, he told us four different
20 standards and they were all of his own creation. None
21 were legally acceptable standards that he used to come
22 up with his opinion. So all the conclusions that are
23 asserted in his report and testimony should be
24 disregarded and be considered baseless. That too is in
25 the final submission.
1 I would like to go to the indictment. Since
2 I am probably running out of time, I would like to
3 summarise -- pardon? Eight minutes. Of course,
4 Mr. Landzo testified and we believe that the best
5 testimony, the best evidence in this case is the
6 testimony of Mr. Landzo. It took a lot of courage to
7 come here and testify. And he admitted that he
8 participated in the beating of Scepo Gotovac. He told
9 us about the circumstances, how he was handed a piece
10 of paper out of the window by Mr. Mucic and Mr. Delic,
11 saying that they wanted this man to come out with his
12 feet first because someone else had come there and told
13 them they had a vendetta against this man.
14 Well, we believe that he should be found not
15 guilty of those counts in the indictment because he was
16 suffering from such diminished mental capacity that
17 rendered his judgement diminished responsibility for
18 the acts at that time.
19 Simo Jovanovic. Mr. Landzo testified that,
20 yes, he called Simo Jovanovic out. That the guards
21 from Idbar had come there and they took him over into
22 the workshop and they beat him and he returned him back
23 to the hangar 20 minutes later. And, yes, he did say
24 that Mr. Simo Jovanovic more than likely died from the
25 beating that he received that evening.
1 But, most of all, we come to Mr. Bosko
2 Samoukovic, who was an elderly man, who was just one of
3 the six or seven people that Mr. Landzo hit in the
4 hangar when he returned on July 12th, 1992. In July
5 12th, I can't go through all of the testimony, but, you
6 know, he had just come from the scene of the most
7 brutal murder of the person who had been his father
8 figure for the previous few years, Ibro, who lived
9 above him and seen how he had been mutilated, his body
10 destroyed and mutilated. He went back, and because he
11 was in such a diminished mental state, that he couldn't
12 control his actions and he did admit to going in and
13 hitting this man.
14 One thing that the Prosecution hasn't proven,
15 Mr. Landzo called the nurse immediately to help this
16 man when he saw that he was seriously injured. He took
17 him straight to the infirmary. He ordered the doctors
18 to make him well. Now a murderer doesn't do that.
19 That doesn't make sense. There was no intent on
20 Mr. Landzo's part to murder Mr. Samoukovic. And that
21 would be very hard stretched for the Prosecutor to say
22 that there was.
23 Mr. Susic, the fourth allegation of murder
24 against Mr. Landzo. Mr. Landzo said, yes, he did go
25 with the other guards to put him in Tunnel 9. And as
1 he did put him in Tunnel 9, he did push him. Mr.
2 Susic, he was beaten. But Mr. Landzo did not beat him
3 during the times that ended up resulting in his death.
4 Of course there are four allegations of
5 torture against Mr. Landzo. I promise, Judge Jan, and
6 your Honourable Court that I will come up with the
7 definition of torture when we come back tomorrow. But
8 the definition of torture as submitted by the
9 Prosecution is clearly too broad. We have Witness M.
10 Witness M, Mr. Landzo admitted -- can you put No. 27
11 on, please? Mr. Landzo's testimony was that, yes, he
12 did burn Witness M. Yes, he did participate in the
13 beatings of Witness M. He did it with Hazim Delic
14 watching him and he was ordered to do so. Witness N,
15 he also says that he remembers Witness N being beaten
16 by the HOS. He doesn't remember Mirko Babic. He
17 doesn't remember Mirko -- no, Mirko Djordjic he does
18 remember. No, he doesn't remember Mirko Djordjic.
19 Nedeljko Draganic, who is the charge of great
20 suffering, he knew him from school. He said he came in
21 as Nedeljko Draganic was being beaten over in the other
22 hangar. And, yes, when he was told to put him back in
23 the hangar, he kicked him or hit him and tried to get
24 him up and he did put him back in the hangar. But he
25 did not do the torturous allegations that are in Counts
1 36 and 37. And, of course, it would be ludicrous to
2 hold a young guard, 18 years-old, responsible for the
3 inhuman conditions at the camp.
4 The fact is, Esad Landzo had no authority to
5 change any of the conditions in the camp. And he had
6 no command responsibility. So the allegations of
7 inhumane conditions in Count 46 and 47 should be
8 dismissed against Esad Landzo.
9 I want to address the lack of credibility of
10 the Prosecution witnesses one more time. They were all
11 allowed to come here and tell their story. Each
12 Prosecutor that testified here had six years, five to
13 six years to get their stories together. They went to
14 a testifying seminar in Temisoara (Phoen), Romania.
15 They are now not able to separate what they heard in
16 those seminars. What it is they've talked to each
17 other about over those six years and what it is that
18 they actually remember or heard themselves.
19 Each Prosecution witness testified that Esad
20 Landzo was the guard posted at the door of Hangar No.
21 6, the building where the majority of the detainees
22 were held. His was the only name they knew. When they
23 wanted to contact the outside world, they shouted
24 Landzo, Zenga, in order to make any kind of
25 communications. He carried messages, solved problems
1 and answered their calls. He was the name that they
2 recognised, the name they knew. He is the guard that's
3 here, present.
4 If I might conclude, in a multi-defendant
5 trial, especially one with the underpinnings of
6 national integrity, national pride and political
7 warfare still in the forefront, the decision to testify
8 becomes a matter of life or death and of national
9 dignity. Esad Landzo chose at the risk of the threat
10 of his home, his family and himself to come before this
11 tribunal and testify. This was a courageous decision.
12 Esad Landzo wished to present the best Defence that he
13 could to the allegations by the prosecutor. But he was
14 inhibited and prevented from doing so by intimidation
15 and interference with the witnesses who previously
16 agreed to come forward and speak the truth.
17 There is no doubt that terrible acts occurred
18 in the camp during the summer of 1992. These
19 regrettable acts can now be defined and viewed as a
20 result of the aggression and the atmosphere of fear and
21 panic that was forced upon the people of the Konjic
22 Municipality. Whatever the motivation, our goals in
23 this International Tribunal are to understand what the
24 causes were in 1992. An attempt to prevent a
25 recurrence of such events, the entire scheme of crimes
1 against humanity must, if it is to have moral vigour,
2 to maintain the support of world opinion, must be
3 designed to attack and punish command responsibility.
4 It is aimed at the destruction of any military or
5 authoritarian command structure, which breeds,
6 nurtures, creates or encourages savagery, mayhem and
7 violates the common notions of human dignity. To focus
8 the light of world opinion upon a prison guard,
9 denigrates the process. The punishment of a hapless
10 19-year-old caught up in the midst of a confusing
11 conflict, a conflict which literally came to his
12 doorstep, is such a simplistic and unfair solution, it
13 defames the original noble intent of the framers of the
15 In our world, among those people who share
16 the notion of civility and common decency, there is a
17 shared perception that those who conceive, plan and
18 execute crimes against humanity should be caught and
19 punished. From such high convictions, this Tribunal
20 draws its force. Let it not be squandered in the
21 pursuit of common soldiers and prison guards. Such
22 actions diminish the moral authority from which world
23 justice springs. Notwithstanding the common legal
24 arguments put forth by all of the accused in the
25 Celebici case, Esad Landzo presented strong and
1 compelling evidence that while stationed as a guard in
2 the Celebici barracks, he existed in a state of
3 diminished mental capacity, legally resulting in a
4 state of diminished mental responsibility. The burden
5 of proof was merely by a preponderance of the
6 probabilities. This burden of proof has most assuredly
7 been surmounted by the consistent testimony of four
8 independent health experts, each of whom testified that
9 Esad Landzo should be found to have diminished mental
10 responsibility for his actions in 1992.
11 Once again I want to thank this Tribunal. I
12 really appreciate my participation in this trial. On
13 behalf of Esad Landzo, I want to say that we have met
14 our burden of proof and this Honourable Trial Chamber
15 should return a verdict of not guilty to the counts in
16 the indictment. Thank you.
17 JUDGE KARIBI-WHYTE: Thank you very much. I
18 think it's 5.30 now, we shall adjourn until tomorrow
19 for the Prosecution to continue for any possible
20 rebuttal it has. So the Trial Chamber will now rise.
21 --- Whereupon proceedings adjourned at
22 5.30, to the reconvened on Tuesday, the
23 1st day of September, 1998,
24 at 10.00 a.m.