1 Tuesday, 1 September 1998
2 --- Upon commencing at 10.05
3 (Open session)
4 JUDGE KARIBI-WHYTE: Good morning, ladies and
5 gentlemen. Let's have the appearances, please.
6 MR. NIEMANN: If Your Honours please, my name
7 is Niemann and I appear with my colleague Ms. McHenry
8 and Mr. Huber for the Prosecution.
9 JUDGE KARIBI-WHYTE: For the Defence.
10 MS. RESIDOVIC: Good morning, Your Honours,
11 I'm Edina Residovic, I appear for the defence of
12 Mr. Zejnil Delalic together with my colleague Eugene
13 O'Sullivan professor from Canada.
14 MS. BUTUROVIC: Good morning, Your Honours,
15 I'm Helen Buturovic from Konjic from
16 Bosnia-Herzegovina, and I'm the attorney of Mr. Mucic.
17 Together with me is my colleague, Mr. Kuzmanovic, an
18 attorney from America, and Mr. Niko Duric, the attorney
19 from Croatia.
20 MR. KARABDIC: Good morning, Your Honours, my
21 name is Salih Karabdic, I'm a lawyer from Sarajevo and
22 I represent the defence of Mr. Delic. Together with me
23 is my colleague from Houston, Texas, Mr. Moran.
24 MS. McMURREY: Good morning, Your Honours,
25 I'm Cynthia McMurrey and along with my colleagues
1 Ms. Nancy Boler and Mr. Calvin Saunders, we represent
2 Esad Landzo.
3 JUDGE KARIBI-WHYTE: Mr. Niemann, may we hear
5 MR. NIEMANN: Good morning, Your Honours. By
6 this stage of the proceeding, Your Honours have heard
7 many thousands of words, and probably you've heard
8 about as many words as you want to hear in relation to
9 this case, so I promise that I will try and be as brief
10 as I can be. But I would like, if I could, to attempt
11 to destroy some of the myths that have been created in
12 this case, and particularly in the submissions that
13 have been made by my colleagues from the Defence.
14 So, in doing that, I fear that I may well
15 take the full extent of my half-hour, and I may indeed,
16 if necessary, have to seek Your Honours' indulgence to
17 borrow a little bit of time from that left over by my
18 colleague, Mrs. McHenry, yesterday, who kindly
19 completed her submissions in a timely fashion and
20 leaves 15 minutes over for the Prosecution, if Your
21 Honours would indulge me. I sincerely hope that is not
23 So, Your Honours, there's been a number of
24 factors, a number of issues that have been raised by
25 the Defence which we, from this side of the courtroom,
1 say are myths, are not true, not correct.
2 The first one, Your Honours, that I'd like to
3 deal with is in the submission by Mr. Delalic. There's
4 a reference they, somewhat guarded, I might say, and
5 perhaps equivocal, but nonetheless exists, which
6 asserts that the Prosecution has the obligation to
7 prove every fact in the indictment. Your Honours have
8 no doubt seen that.
9 Your Honours, the Prosecution must prove
10 every fact in the indictment that goes to proof of an
11 element of the offence. Indictments are not they
12 merely to set out the facts which the Prosecution must
13 prove and if one of those facts is not proved that's
14 the end of the case.
15 The position is, Your Honours, that
16 indictments, as you well know, serve a number of
17 purposes; they inform the accused of the circumstances
18 of the case, they give particulars and they also set
19 out the charges, and they should express those words
20 which go to proof of the elements of the offence.
21 So you can't say categorically across the
22 board that if you can point to one fact that the
23 Prosecutor has pleaded in the indictment that that then
24 is the grounds upon which it should be dismissed.
25 That, Your Honour, is a myth.
1 Secondly, Your Honour, the question was
2 raised yesterday about the exercise of prosecutorial
3 discretion. It's a myth, Your Honour, that that's a
4 defence. As Judge Jan correctly pointed out, was this
5 matter raised with the Prosecutor. That's indeed what
6 should happen if there's any questions about
7 prosecutorial discretion.
8 In this jurisdiction, indictments are drafted
9 by the Prosecutor and submitted to a confirming Judge.
10 If there's any question about the exercise of the
11 discretion, that's a matter that needs to be taken up
12 with the Prosecutor. It's not a matter that need
13 trouble Your Honours, now, at all. To suggest that it
14 is a matter that needs trouble Your Honours is a myth.
15 There's been, in the course of these
16 proceedings, a number of instances where we have had
17 collateral attacks, if I can call it that, where
18 instead of concentrating and focusing on the main point
19 of the case, instead of challenging the Prosecution
20 evidence and saying this is wrong and this is why my
21 client is not guilty of this offence, because that
22 evidence is incorrect, or whatever, we have had this
23 series of collateral matters.
24 The prosecutorial discretion issue that I
25 mentioned is yet another one to be added to the top of
1 attacks upon the Registrar, the interpreter, the
2 guards, the accommodation, indeed, individual members
3 of Your Honours' bench.
4 So, why these issues are raised, Your
5 Honours? They are raised in my respectful submission
6 because attacking the Prosecution case directly exposes
7 the weakness in the defence. And it's because they
8 don't want you to see the weakness in their case that
9 they raise all these peripheral collateral matters to
10 otherwise consume Your Honours' time.
11 The next matter, Your Honours, is in relation
12 to Common Article 3 of the statute. Common Article 3
13 of the Geneva Conventions. It's been raised by
14 Mr. Moran, I think he made it plain that he raised it
15 because he wants to appeal it. He wants to persuade
16 the Appeal Chamber to change its mind for all its
17 previous decisions and say we got it wrong. Fair
18 enough, if he needs to create a record for that, for
19 those purposes, I can understand why he might want to
20 do that.
21 But so far as Your Honours' concern, you need
22 not be concerned about that at all. It's a matter
23 which has been decided by the Trial Chamber, by the
24 Appeal Chambers, and Mr. Moran, I think, concedes that
25 Your Honours are probably bound by it.
1 There's two points, however, that I would
2 like to address on this question, and it's not for the
3 record. It's two points which have been made, I think,
4 on numerous occasions, if not in this Chamber, before
5 this Court, before the Appeals Chamber and in other
7 The first point is that if you're a successor
8 state, then under the Treaty on Succession of States,
9 Article 34, which at this stage has not come into force
10 but is generally accepted as espousing the principles
11 of international law, clearly states that a succeeding
12 state carries with it and has, is obligated by
13 international treaties which are binding upon the
14 predecessor state. It's a simple concept but one
15 that's generally accepted, Your Honours, and has been
16 incorporated in this treaty.
17 The effect of that is, Your Honours, that you
18 need to look at the former Yugoslavia, and then the
19 question is had it exceeded to the Geneva Conventions.
20 Question is yes, no dispute about that, a long time
21 ago, 1959, I think. Then is Bosnia bound by it in the
22 early part of 1992? Yes, because of that principle.
23 But also, in the exercise and application of
24 that principle when the repository of states excision
25 to treaties, the foreign ministry of the government of
1 Switzerland, in relation to the Geneva Conventions, it
2 accepts it from the date of independence, which in the
3 case of Bosnia, is the 6th of March of 1992.
4 So, any suggestion, Your Honours, that the
5 Geneva Conventions had no application in
6 Bosnia-Herzegovina at the relevant dates of our
7 indictment is a myth.
8 The question of whether Common Article 3 was
9 intended by the security council to be incorporated and
10 picked up and applied by Article 3 of our statute has
11 been raised by the Defence in their submissions, as
12 well. It's been suggested to Your Honours, it was
13 never intended, that the security council had ever
14 intended to incorporate Common Article 3 under Article
15 3 of our statute. The Defence raised the argument,
16 look at the Rwanda statute, it's spelled out in the
17 Rwanda statute. Obviously that was the position, it
18 had to be expressly stated, otherwise it had no
19 application, and it was never contemplated.
20 Well, Your Honours only need to go to the
21 debates of the security council on the adoption of the
22 statute of the Tribunal of the Yugoslavia, for this
23 Tribunal, the 25th of May 1993. It's the verbatim
24 record of the 3.270th meeting of the Security Council,
25 and read what the Ambassador for the United States,
1 Madeline Albright, had to say about it at the time.
2 And she says that she believes that it's the
3 understanding of all of the members and that they share
4 the view that Common Article 3 of the Geneva
5 Conventions is incorporated and applied to the
6 International Tribunal for Yugoslavia --
7 JUDGE JAN: Can you read the statement she
9 MR. NIEMANN: I'm reading from page 187 of
10 the record of the minutes of the meeting. And this is
11 Madeline Albright. "In particular, we understand that
12 other members of the council share our view regarding
13 the following clarifications related to the statute.
14 Firstly, it's understood that the laws or customs of
15 war referred to in Article 3," and she is referring to
16 Article 3 of our statute, "include all obligations
17 under humanitarian law agreements in force in the
18 territory of the former Yugoslavia at the time the acts
19 were committed, including Common Article 3 of the 1949
20 Geneva Conventions and the 1977 additional protocols of
21 these conventions." Quite clear, Your Honours.
22 The other issue that I might touch on now
23 that we're talking about, Common Article 3, and it
24 needs to be brief, is in relation to whom it applies
25 to. And there seems to be some suggestion that there's
1 doubt about that by these submissions that have been
2 raised by the Defence. Your Honours, there's no doubt.
3 It's very clear. Your Honours only have to read it.
4 And as you have been encouraged to rely upon the plain
5 words that appear in the statute, Your Honours only
6 have to do that to see the ambit of its application.
7 It applies to persons taking no active part
8 in the hostilities, including members of the armed
9 forces that have laid down their arms. Including. It
10 is not limited only to those, Your Honours. So it has
11 a very broad application, there's no question or doubt
12 about that.
13 The next myth, myth 4, if I can raise it
14 quickly and dispose of it quickly; they is a suggestion
15 that Your Honours may have seen in the submissions,
16 written submissions of Mr. Delalic which speak of the
17 prevailing conditions in Yugoslavia, in Bosnia in
18 particular, Konjic area at the time. And the argument
19 is mounted on the basis that if the government makes a
20 good faith effort to provide conditions which would
21 seek to comply with the Geneva Conventions, then that
22 is sufficient. It's all it has to do. Myth, Your
24 Myth for a number of reasons. Myth because
25 it doesn't work that way. If you want to lock people
1 up in the course of war, there's rules that says that
2 they are conditions under which they must be kept.
3 It's not good enough to say we tried but we didn't
4 quite get they, things are pretty tough. No, that's
5 not it.
6 If you do it, the conventions are clear, you
7 must comply with them. But really, was they a genuine
8 attempt to ameliorate the conditions of these people
9 kept in this camp? They was no question they was
10 sufficient water. They is plenty of water they, the
11 evidence shows that; just they wouldn't give it to
13 They was no need to keep people in a tunnel.
14 There's plenty of room. They didn't have to be kept in
15 a tunnel.
16 They was no need to beat them or torture them
17 or kill them. They didn't have to do any of that.
18 That's got nothing to do with conditions at the time.
19 So, Your Honour, it's a myth.
20 There's also another myth that's been raised
21 in the written submissions of the Defence, Delalic,
22 page 16. It's a somewhat convoluted argument and I'm
23 not sure I fully follow it; but it is suggested to Your
24 Honours that because the Celebici detainees don't set
25 out, in detail, all the matters which go to describe a
1 prisoner of war under the Geneva Conventions, that
2 either they are liars or we are liars.
3 Well, Your Honours, that's a fairly broad and
4 sweeping generalisation, if it's intended to mean what
5 it says, and I can only rely on the plain reading of
6 their submission.
7 We have never suggested at any stage, nor has
8 any of the evidence of the Prosecution suggested that
9 all of these people were prisoners of war under the
10 Prisoners of War Convention. They were certainly
11 detained. Some of them were civilians. And they are
12 different categories of that convention, different
13 categories in the Prisoners of War Convention which
15 They didn't come to Your Honours and
16 precisely state what category they fell under, but a
17 lot of them would have easily fallen under Category 46,
18 in my submission, namely inhabitants of a non-occupied
19 territory who on the approach of the enemy
20 spontaneously take up arms to resist the invading
21 forces, et cetera, Your Honours can read it.
22 JUDGE JAN: Invading forces.
23 MR. NIEMANN: Invading forces, yes.
24 JUDGE JAN: You invade a foreign country, you
25 don't invade your own country.
1 MR. NIEMANN: Your Honours, that's an
2 argument for the Defence. But it seems that the
3 people -- they is a great deal of comment about who is
4 doing what, and there's this curious argument which I
5 will come to and, I think, answer in greater detail
6 about this issue of whether it's an international armed
7 conflict. Because the Defence speaks with forked
8 tongues on this, and I will develop it shortly.
9 But they say on one hand, well, they don't
10 say, but they don't deny in a serious way that there's
11 an international armed conflict going on. Not at all.
12 Why could they do that? Well, because the very people
13 they worked for, the very government that they worked
14 for said it was an international armed conflict. So,
15 they can't very well say, it doesn't sit well in their
16 mouths to stand up now and say, Your Honour, this
17 wasn't an armed conflict at all.
18 JUDGE JAN: Whether it was an international
19 conflict -- you have the resolution of the security
20 council. It's an international conflict, maybe you
21 have some point to make they. But invading force
22 obviously means that some foreign force is invading a
23 foreign territory.
24 MR. NIEMANN: Well, Your Honours, we had here
25 a situation of transition, the transition of secession,
1 and the whole of this case has been argued by the
2 defence --
3 JUDGE JAN: I've not been able to make myself
4 clear. Bosnia-Herzegovina was recognised as a
5 territory as an independent state. The forces going to
6 Bradina, Konjic area, et cetera, were forces of Bosnian
7 state. The Konjic area is part of Bosnia, so wouldn't
8 these forces, the legal forces of Bosnia-Herzegovina be
9 set to be invading a territory which has been
10 internationally recognised as part of its own
11 territory? That's the point.
12 MR. NIEMANN: Yes, Your Honour, the point,
13 I'm using up a lot my valuable time, but I do want to
14 persuade you on this point.
15 JUDGE KARIBI-WHYTE: I will give extra time
16 to you.
17 MR. NIEMANN: Thank you, Your Honour.
18 The point of the matter is, Your Honours,
19 that this is not a question of where everything was
20 black and white. The fact of the matter is and it's an
21 undeniable fact that they was a part of
22 Bosnia-Herzegovina over which the forces of the army of
23 Bosnia-Herzegovina, at a point in time, had no control.
24 It still exists to this day. It's called the Republic
25 of Srpska, but the Republic of Srpska is an entity that
1 shrunk from a larger entity, and the fact of the matter
2 is that it shrunk because of a number of reasons,
3 particularly in international intervention where lines
4 were drawn, but it shrunk because of the fact it was
5 taken over by the forces of army of the
7 Up until that time it was held by forces of a
8 combination of the JNA, which represented the Serbian
9 Bosnian Serbs, and the Federal Republic of Yugoslavia.
10 So, it was a part of the country, and these people were
11 in that country and they knew that the advancing forces
12 of Bosnia-Herzegovina was going to take over their
14 This is a period of transition. You can't
15 just look at it and say this is black and that's white
16 and that's the end of the matter. You've got to look
17 at the facts. In my respectful submission, Your
18 Honour, the fact of the matter is we were going through
19 a process of change which is still happening to this
20 day. Because of that, is the Geneva Conventions to be
21 denied to these people?
22 JUDGE KARIBI-WHYTE: Before you go forward,
23 don't you think you should limit this type of analogy
24 to the particular facts of the case before us and where
25 the prisoners were captured from, and whether those
1 facts come within the purview of this argument?
2 Because the prisoners were from Bradina and -- two
3 places, these are the main areas where they were
4 prisoners who were in Celebici camp, from those two
5 areas, and these two areas come within that context.
6 MR. NIEMANN: And they do come within that
7 context, Your Honour. They were territories which were
8 occupied by people who were regarded as being hostile
9 to the government of Bosnia-Herzegovina. And that's
10 why, Your Honour, that the Geneva Conventions must
11 apply to them in those circumstances.
12 I may come back to just touch on some of
13 those matters in a moment, Your Honour.
14 One point, though, Your Honours, is when it
15 comes to prisoners of war, the question of nationality
16 doesn't arise, not mentioned. So if nationality is an
17 issue, it's not in respect of people who would be
18 prisoners of war.
19 Myth 6, Your Honour. Question of whether
20 diminished responsibility amounts to a Defence. Well,
21 the first point we make, we made in our written
22 submissions, we make it briefly again; in our
23 submission their evidence just doesn't meet the
24 defence. They haven't produced sufficient evidence to
25 demonstrate that they was diminished responsibility.
1 They haven't met their burden. That's clear from the
2 evidence but I go on.
3 There's a matter of law, Your Honours,
4 diminished mental capacity is not a complete defence,
5 and at most it would entitle an accused to a lesser
6 sentence. So, it can't be sort of put up as a basis
7 once we prove this, that's it, we're entitled to
9 The Defence have tried to incorporate English
10 law, but the English law only applies to murder. So it
11 has, if English law is to be applied, then Your
12 Honours, it only has that limited application, it
13 doesn't go to matters such as torture and the other
14 crimes with which the accused Landzo has been charged.
15 So, in our submission, Your Honours, firstly,
16 diminished mental capacity hasn't been shown.
17 JUDGE JAN: Are you very clear that the
18 citation of the British law not be convicted of
19 murder. That's all, but can be convicted of something
21 MR. NIEMANN: Yes, can be a victim of
22 manslaughter, Your Honour.
23 JUDGE JAN: I checked up on that. I'm trying
24 to find out. It merely talks of murder.
25 MR. NIEMANN: Yes. I haven't got it with me.
1 JUDGE JAN: It has a number of qualifications
2 why he can't be convicted of murder. A number of
3 qualifications they; but I was just wondering what
4 happens then. Then he can be convicted of
6 MR. NIEMANN: Yes. I will see if I can find
7 this out for you, Your Honour, but the alternative
8 verdicts apply, murder manslaughter.
9 JUDGE KARIBI-WHYTE: Conceptually, if it is
10 diminished responsibility, that is what the phrase
11 means. Definitely it could be spread to any area of
12 responsibility. I agree it is limited to murder, but
13 definitely, conceptually it could be extended.
14 MR. NIEMANN: That's not how it's understood
15 in most jurisdictions with which I am familiar.
16 JUDGE KARIBI-WHYTE: Yes, that's true, but
17 you follow the context within which the concept itself
18 originated because they were merely reducing homicide
19 to manslaughter. Then if all it does is to diminish
20 responsibility to committing an offence, if one can
21 establish that, that responsibility is not the fullest,
22 it should go accordingly.
23 MR. NIEMANN: As Your Honour is suggesting,
24 it should go to all offences.
25 JUDGE KARIBI-WHYTE: I have not said so. I
1 said if you can so show from the evidence which is
2 available to the Tribunal, then one should be able to
3 do that.
4 MR. NIEMANN: It's a bit like the duress
5 argument, Your Honours. There is nothing unusual,
6 strange in having a law that says it applies, the
7 defences only have limited application. The address
8 argument is the other way around. It says duress is no
9 defence to the killing of innocent human beings.
10 That's been held by this Tribunal in the Erdemovic
11 appeal case. But it has application to other offences,
12 so it can apply to lesser offences. Which is the
13 reverse of this argument, but it's the same concept and
14 there is nothing unusual or strange about it.
15 In this case -- you have in the United
16 Kingdom and I don't profess to be an expert in the law
17 of the United Kingdom -- but as I understand it in the
18 United Kingdom, we have alternative verdicts, which is
19 a very common provision in most states where you have
20 murder, manslaughter, so the jury are given the option
21 to return a verdict of murder or manslaughter under
22 certain conditions. This is how this operates as I
23 understand it. That if you establish diminished
24 responsibility, you're entitled to the alternative
25 verdict of manslaughter and that, of course, reduces
1 the penalty which would otherwise apply.
2 So, in our submissions, Your Honours, if the
3 Defence are relying on English law and they take with
4 it that concept as well, if they try and argue, well,
5 we're entitled to raise the defence of diminished
6 mental capacity. In so doing that, because there are
7 no alternative verdicts recognised by this Tribunal,
8 that means that we're entitled to jump the canal and
9 get a full acquittal. That's not the way, in my
10 respectful submission, it should be interpreted.
11 JUDGE KARIBI-WHYTE: Actually, what our own
12 evidence that allows us is to apply any law which is
13 appropriate for the particular situation. So we're not
14 bound to follow national laws.
15 MR. NIEMANN: Absolutely.
16 JUDGE KARIBI-WHYTE: It could be adjusted to
17 fit the circumstances. In the interest of justice
18 before us, we should be able to do that.
19 MR. NIEMANN: I venture to suggest, Your
20 Honours, that if you expanded the concept of diminished
21 mental capacity to cover a situation where you're
22 entitled to a complete acquittal, rather than a reduced
23 sentence or an alternative verdict, then you'd be doing
24 something which is quite novel to the common law.
25 JUDGE KARIBI-WHYTE: I am not saying we're
1 doing that. But if the evidence is such that the
2 nature of the diminished capacity is such that the
3 person cannot even act, because none of the
4 psychiatrists have given to us what the situation of
5 the diminished capacity is, none of them.
6 MR. NIEMANN: I think we've mentioned it in
7 our submissions, Your Honours, at page 236 and
9 JUDGE KARIBI-WHYTE: I have read that.
10 MR. NIEMANN: Hopefully, Your Honours, in
11 time, may have a look at that.
12 JUDGE JAN: As far as that, as I read the
13 English position, there has to be a finding that the
14 accused is abnormal. It's only then that you give way
15 to display. It has to be finding of fact that he is
17 MR. NIEMANN: Yes, Your Honour. The next
18 point, Your Honours, myth seven, if I can call it that,
19 relates to the credibility of Prosecution witnesses. I
20 have a number of points that I wish to make on this.
21 Firstly, in the written submissions, there
22 are numerous occasions where Your Honours are
23 encouraged to look closely to the decision in the Tadic
24 case and to rely on that for various points that would
25 assist you in coming to your decision. Funnily enough,
1 no mention is made of the issue of credibility of
2 prosecution witnesses in Tadic case, in this respect.
3 In the Tadic case, Your Honours -- and Your
4 Honours, I may have to read the decision of Their
5 Honours. In that case, you'll see that almost to a
6 witness they were believed. And I am talking about the
7 witnesses who are inmates in the Omarska, Trnopolje and
8 Keraterm camps were accepted by the Courts as telling
9 the truth. The Court may have made decisions about
10 international armed conflict and all that other sorts
11 of things, but when it came down to believing there
12 witnesses, almost to a witness, they were believed.
13 There witnesses, Your Honours, had the same
14 sort of an axe to grind. Probably a bigger axe to
15 grind and they came before the Court. They gave their
16 story. They were inconsistent. They were nervous.
17 There was interpreting problems. There was
18 inconsistencies between statements. They were raised
19 on a daily basis in there proceedings. The Defence
20 made a big thing about this. And said, "How can you
21 believe any of it"? One of the principle submissions
22 they made is, how could you believe them, they have an
23 axe to grind, they have every reason to come here and
24 lie to you. That's not what the Tribunal found in that
25 case. And these witnesses may also be accused of
1 having an axe to grind. In my submission, Your
2 Honours, they're equally believable as any of there
3 witnesses in the Tadic case. The only distinction
4 between the Tadic case and this case was that in the
5 Tadic case, the majority of the witnesses were Muslim
6 and in this case they were Serb.
7 Your Honours, it's said that also that the
8 Prosecution relies on the evidence of, I think at one
9 stage it was said, we only rely on two witnesses,
10 Mr. Landzo and Witness D, is a myth and I wish to
11 correct that, Your Honours. It's interesting how the
12 evidence of Mr. Landzo consistently corroborates many
13 of the Prosecution witnesses. It's very interesting
14 how he does that. And the Prosecution is entitled to
15 point to that and say, "Look at this, Your Honours.
16 Look at how he is saying something very, very similar
17 and very close to what our witnesses said." We're
18 entitled to do that, and we've done it and that's
19 fair. But we're not only relying on Mr. Landzo for our
20 case. And, Your Honours, when you come to read our
21 submissions, I think you'll clearly see that that's the
23 Then the Defence in this case have liked to
24 raise this question that the Serb association has
25 tampered with our witnesses and corrupted them and
1 there is talk of this seminar, which is a mystery to
2 me, which has been had so they can only be tutored and
3 come before you and give this tutored, structured
4 evidence. It's very interesting that I'd make that
5 argument and at the same time talk to inconsistencies
6 and say there is inconsistencies and yet they've been
7 tutored. It would be a fairly poor job of tutoring, if
8 that was the case.
9 Your Honours, when this question was raised
10 with the witnesses, every witness refuted that they had
11 been lectured, they had been tutored in giving
12 evidence. The so-called meeting of the witnesses in
13 Romania, which is sort of described as a seminar, if
14 you please, it happened to be a meeting with the
15 investigators from the Office of the Prosecutor who met
16 with the witnesses in Romania because they were
17 precluded and prevented from going on to the territory
18 of the former Yugoslavia in order to gather the
19 evidence of this case.
20 Another myth that has been raised is the
21 question of the calling of the witness, Ramic. It's
22 been said that we didn't call him because his evidence
23 would have been exculpatory. So, therefore, Your
24 Honours were deprived of hearing his evidence. Your
25 Honours that's an extraordinary thing to say. There
1 are many, many reasons why witnesses are called and not
2 called and there is no reason why the Defence couldn't
3 have called this witness. So if he had something
4 exculpatory to say, do you think that they would have
5 been up there in the first witness. Come along, Mr.
6 Ramic, and tell the Chamber about this exculpatory
7 evidence. Not a bit of it. We didn't hear anything
8 from them in that regard. So it's a sweeping, broad
9 generalisation, Your Honours. It's a myth.
10 It's said about the witness, Assad Harraz.
11 He is a credible witness and whatever you believe,
12 fine. We accept that. What we also ask Your Honours
13 to accept is his evidence about Mr. Delalic being the
14 overall commander of the area. We ask you to accept
15 that he spoke of Mr. Mucic as being commander of the
16 camp and his article in Exhibit 167 is the 24th of
17 July, 1992, so that's before the 27th of July, 1992.
18 Your Honours, you may have been there and didn't see
19 things that happened on another day, that doesn't make
20 him a liar. That doesn't make the Prosecution
21 witnesses a liar.
22 JUDGE JAN: There is one thing about the
23 Prosecution witnesses. It is said, many of them said
24 they were beaten up in front of this crew which is led
25 by this particular witness for the Prosecution. This
1 position was now clarified by you when he appeared in
2 the witness box.
3 MR. NIEMANN: I agree that there is some
4 issue there, Your Honour.
5 JUDGE JAN: That does affect credibility of
6 the witnesses who make such a statement.
7 MR. NIEMANN: It might affect the credibility
8 of Mr. Harraz. But, Your Honours, the point I wish to
9 make on that, is that there has never been any actual
10 certainty that he was the only Arab journalist that
11 visited the camp.
12 JUDGE JAN: I think there is some evidence.
13 It is the only thing he visited. I think there is some
15 MR. NIEMANN: Well, my understanding -- Your
16 Honours, no doubt have a better understanding of the
17 evidence than me. But my understanding was -- it's
18 always open. It's a big stretch, Your Honours.
19 JUDGE JAN: I am just thinking, maybe the
20 witnesses of the Prosecution have made such
22 MR. NIEMANN: That's always possible, Your
23 Honours. At the end of the day only you can decide
24 that question. It's entirely possible that either
25 Mr. Harraz may have made an exaggeration or may not
1 have told something which happened, or it may have been
2 the case for the prosecution witness. But it doesn't
3 mean, Your Honours, they're liars. It doesn't mean
4 they're liars.
5 JUDGE JAN: Exaggeration is not --
6 MR. NIEMANN: It's not a lie. So, one
7 doesn't immediately dismiss a witness out of hand
8 simply because they portray something differently than
9 somebody else portrays it. I don't know Mr. Harraz's
10 background at all, frankly. Things that he may not
11 consider to be serious, others may, I don't know.
12 Going on to the other witness that was
13 challenged, Risto Vukalo. Your Honours, because I am
14 running short of time, I do encourage you to go to the
15 evidence and read this. I think you'll agree with me
16 when you go to the evidence that it's very clear that
17 what's happened there when Mr. Moran is discussing this
18 question which he relies upon to demonstrate what he
19 says is the fact that this witness can't be relied on,
20 is a confusion. It's a clear confusion. Mr. Moran
21 says -- and I will quote shortly what he says in the
22 transcript. He says, "It would be in early January
23 1993," and he is talking about a beating in the Musala
24 camp. "Right before you made that statement to there
25 investigators from a Bosnian army, a couple of days
1 before, that is what you said, is it not?" So he
2 specifically raises the statement given to officers of
3 the Bosnian army. Specifically does that.
4 And about 20 lines later, he says show the
5 witness the statement by the Office of the Prosecutor
6 and says, "Read it." The witness reads it. And Mr.
7 Moran says -- reads that out and then the witness says
8 this and this is the point that I wish to make. "Sir,
9 I had it stated that way. If they had told me that
10 milk was black" -- they, in my respectful submission,
11 is clearly the Bosnian army investigators. "I would
12 have had to say that, lest I be treated the same way I
13 was treated in Celebici. Lest in Musala I was treated
14 the same way as I was treated in Celebici. I was
15 afraid of that. Who dared to say that there were
16 beatings going on in Musala." Clearly the witness is
17 confused and one can understand why the witness is
18 confused. He mentioned a statement he gave to the
19 Bosnian investigators in 1993 and then you hand him an
20 OTP statement.
21 Again, the situation with respect to Witness
22 T and Grozdana Cecez. Your Honours, the issue on that
23 is identification. The transcript page is page 6.782.
24 Your Honour, Judge Karibi-Whyte, picked that up
25 immediately and said it was the person who raped her
1 that she didn't know about at that time. That's not
2 the rape that's in the charge. That's the Witness T,
3 alleged Witness T rape. And so there was confusion
4 over that issue. No confusion whether she knew him
5 from some other occasion. Now, Your Honours there are
6 numerous cases that, Your Honours are as well aware of
7 as I am, that fall into that category where rapes have
8 occurred, even by people that the victims know about
9 and they didn't -- they weren't able to identify in the
11 Your Honours, finally, we come to the last
12 myth that I would seek to destroy, if I may. It
13 relates to the question of international armed
14 conflict. I have touched upon a number of these
15 matters so far and so I won't labour the issue by
16 repeating them again. But, I have mentioned the fact
17 of the attitude of the Government of
18 Bosnia-Herzegovina, the Serbinisation of the JNA, that
19 is, that an army which was the federal army for the
20 whole of the former Yugoslavia was converted into an
21 army of the Republic of Serbia and the Federal Republic
22 of Yugoslavia. It no longer was an army of
23 Bosnia-Herzegovina at all. That's denied in the
24 argument from the Defence. They never say anything
25 about the bombardment of Konjic by the air force of the
1 JNA. Are they suggesting to you that when Konjic was
2 bombed that that was some sort of internal conflict?
3 Is that the submission? No, Your Honour, they're not
4 saying that. They're not saying anything. They're not
5 saying that. I put it to you that the Serbinised JNA,
6 when it bombed Konjic, was an international armed
7 conflict and it was right in the town of Konjic. There
8 is no question about that, Your Honours.
9 Your Honour, Mr. Greaves, when he spoke to
10 you, spoke about this question about what do you rely
11 on when you come to looking at the offences charged in
12 the statute? Do you look at the statute of the
13 Tribunal, the ICTY statute? Or, do you look at the
14 Geneva Conventions, themselves, directly? And which
15 ones do you rely on primarily in assisting you in
16 interpreting the law to be applied? Mr. Moran will
17 tell you, no question, look at the Geneva Conventions,
18 the tribunals of the security counsel can't make laws,
19 so therefore the only relevant law is the Geneva
20 Conventions. Mr. Greaves would urge you the other
22 In my respectful submission, I believe that
23 Mr. Greaves' argument stands up to better scrutiny.
24 Of course, the security counsel didn't create new
25 offences. It merely picked up and implied offences
1 that are already there. There is no question about
2 that. It did it in the statute of the Tribunal. But,
3 Your Honours, when you're looking at this question,
4 it's necessary to look at both documents, the statute
5 of the Tribunal and the Geneva Conventions and to
6 understand, as Your Honours no doubt do, but to
7 understand consciously what the Geneva Conventions are
8 doing. And what they're doing is they're trying to --
9 well, not trying to, they do in fact -- embrace two
10 concepts. One concept is the concept of state
11 enforcement of international law. So that's for state
12 courts to apply international law. The other concept
13 is the concept of International Tribunals enforcing
14 international law under the Geneva Conventions.
15 Now, Your Honours, unlike International
16 Tribunals such as yourselves, state courts are much
17 more concerned with the issue of extraterritorial
18 jurisdiction. Why? Because state courts are careful
19 not to offend foreign courts by usurping authority over
20 what's happened in their foreign country and exercising
21 jurisdiction. So state courts hold back, unless
22 they're given specific legislation to say, you should
23 go ahead and do this -- and this has happened in
24 numerous countries, including Britain, which prosecutes
25 offences that occurred during the Second World War in
1 Europe, war crimes and so forth. As it expressly does
2 say, the courts are very slow to exercise extra
3 jurisdiction. This was no doubt in the minds of the
4 drafters of the Geneva Conventions when they created
5 the conventions, and no doubt the concept of
6 international jurisdiction came about as a result of
8 But one of the things that was inserted in
9 there for the assistance of state courts -- and I
10 promise I'll be very quick, Your Honours -- one of the
11 things that was inserted in there was Article 2, which
12 related to the issue of international armed conflict.
13 So that before a state court made that jump and stepped
14 in and exercised jurisdiction, in a matter in another
15 country, it looked to the question of whether or not
16 there was an international armed conflict. That's not,
17 in my respectful submission, a matter that needs
18 concern Your Honours. Your Honours need not be so
19 concerned with exercising jurisdiction in another
20 country. You are the product of the community of
22 Therefore the issue of being concerned about
23 breaches of sovereignty are not a matter that need
24 trouble you. In your own statute, the statute of the
25 Tribunal, in Articles 6 and Articles 8, you are
1 specifically given jurisdiction, territorial
2 jurisdiction. Now, against that background, if you
3 look at Article 2 of the Statute, which applies the
4 grave breach provisions, there is no reference to
5 international armed conflict at all. I raise this
6 submission for Your Honours' consideration. In my
7 submission, it's not a matter that need concern you.
8 It's not a matter that's an element of the offence.
9 It's a matter that may be an issue that could be raised
10 by the Defence as to argue why the conventions don't
11 apply or the grave breach provisions don't apply. It's
12 not a matter that must be proved beyond a reasonable
13 doubt. And I say that, and it might be a surprising
14 that I say this now at this stage of the proceedings.
15 There is no question that the evidence of the
16 Prosecutor proves beyond a reasonable doubt that this
17 was an international armed conflict. The point I make
18 is that you don't have to do it. It's not mentioned in
19 Article 2 of the Statute. You're not concerned with
20 issues of sovereignty, you're not concerned with issues
21 of the community of nations, so it's not a matter that
22 need concern Your Honours. You're clearly given your
23 jurisdiction under Articles 6 and Articles 8 and that's
24 where you can look to see whether you can determine
25 this case before the Court.
1 These matters are too serious. These events
2 too tragic to have them dismissed from court on the
3 grounds of a technicality, a technicality that should
4 not concern Your Honours.
5 Unless I can assist Your Honours with any
6 other matters, there are my submissions.
7 JUDGE KARIBI-WHYTE: Thank you very much. Do
8 you have any response?
9 MR. MORAN: Yes, Your Honour, a few things.
10 Technicality. Technicality. What in the
11 world is a technicality? We're not dealing with
12 technicalities, we're dealing with the law. We're
13 dealing with what the law defines as violations. If
14 it's not defined as a violation, it's not a
15 technicality to say the law doesn't apply. I can't
16 believe what I just heard. Judge, in some ways, in the
17 last hour or so, somebody has been trying to throw a
18 little sand in your eyes and let me see if I can get a
19 little of it out. Somebody has been trying to blur
20 your vision, Judge. Let's start --
21 JUDGE KARIBI-WHYTE: You want to get him
22 out? You want to ensure it is out of the eyes.
23 MR. MORAN: We'll try to, at least, clear
24 your vision a little bit, Judge.
25 First thing is, the last time I checked from
1 April 6th, 1992, the Republic of Bosnia-Herzegovina was
2 a nation just like Australia, just like the United
3 States of America, just like the United Kingdom and it
4 had defined boundaries, just like Australia, just like
5 the United States of America and just like the United
6 Kingdom. How a person can sit up here and say the
7 Republic of Srpska, whatever they were doing, this,
8 that and the other thing, how in the world does the
9 Republic of Bosnia-Herzegovina invade the Republic of
10 Bosnia-Herzegovina? I am sure Mr. Niemann would be
11 happy to tell you that on June 6th, 1944, when the
12 Gaullist troops landed with the allies in
13 Normandy, the French were invading France and the
14 Germans were happily defending this country. You have
15 to look at the Dayton Accords. My Secretary of State
16 was in Sarajevo just yesterday talking about the Dayton
17 Accords and how it's one country, always been one
18 country, since April the 6th, 1992. He is trying to
19 make -- he is got a set of facts and he's trying to
20 define a crime to fit those facts and it just doesn't
22 There seems to be some problem with the
23 difference between state succession and state
24 secession. The Prosecutor has taken the position at
25 various times in this trial, through his witnesses and
1 in his written submissions, that the Socialist Federal
2 Republic of Yugoslavia, according to Dr. Economides,
3 led by Mr. Niemann ended in September 1992. Professor
4 Gow says the latest was April 27th. In their written
5 submission here they seem to accept April 27th, '92.
6 That wasn't a matter of state succession, that one
7 state succeeded another on April 6th,'92 when
8 Bosnia-Herzegovina -- that was state secession. State
9 succession is when Zaire became the democratic Republic
10 of the Congo. A different government replaced an
11 existing government. Read Professor Bassiouni
12 book. He says that --
13 By the way, as far as I know, the United
14 Nations has never recognised any state as being a
15 successor state. To this great, good day, the federal
16 Republic of Yugoslavia claims to be a successor state
17 and has not been accepted as that by the General
18 Assembly and the Security Council. I believe I have
19 given the Trial Chamber several resolutions from the
20 Security Council on exactly that matter.
21 He takes the position when the Swiss foreign
22 ministry accepts the articles of ratification from the
23 Bosnian government in December 1992, it reflects back
24 to April the 6th, '92. For purposes of the Government
25 of Bosnia-Herzegovina, I have no problem with that.
1 But he is also saying that if an offence occurred on
2 -- pick a date, July 1st, 1992, at a time when the
3 Government of Bosnia-Herzegovina was not party to the
4 conventions, that because of an act of that government,
5 later, a criminal statute applies to individuals.
6 Seems like a problem to me.
7 Am I bound by the policies of
8 Bosnia-Herzegovina? I don't think so. Is my client
9 bound -- because the Republic of Bosnia-Herzegovina
10 takes a position on an issue of law, does that mean
11 that this Trial Chamber is bound? Does that mean then
12 that if they drag in a citizen of the federal Republic
13 of Yugoslavia, the Trial Chamber 3 or Trial Chamber 1
14 would be bound by the policies of the federal Republic
15 of Yugoslavia. I'll bet Mr. Niemann wouldn't like
16 that. I'll bet he wouldn't like that a lot.
17 JUDGE JAN: Mr. Moran I have just a
18 question. There is a creation of a statute passed by
19 the security counsel?
20 MR. MORAN: Yes, Your Honour.
21 JUDGE JAN: Can you say, or that the statute
22 states, take jurisdiction in these matters,
23 contraventions of the Geneva Conventions and can you
24 say, no we can't.
25 MR. MORAN: You mean in contravention of the
1 convention, Your Honour? In something different than
2 in the convention?
3 JUDGE JAN: We're saying conventions are not
4 applicable because the Government of Bosnia-Herzegovina
5 had not -- can you say, no, we don't have
6 jurisdiction. We're a creation of that statute, how
7 can we challenge the legality of that statute.
8 MR. MORAN: I understand your question now.
9 A couple of things. First, the statute and let's pick
10 an article that doesn't apply to us, the genocide
11 provision of our statute. It gives the Court
12 jurisdiction to decide if there were violations.
13 JUDGE JAN: Let's look at the provisions of
14 the Statute. You should have the jurisdiction. Can
15 you say, we don't have the jurisdiction?
16 MR. MORAN: No, Your Honour, you have the
17 jurisdiction, no question about that.
18 JUDGE JAN: That had the power to prosecute,
19 persons responsible for serious violations of Article
20 1. It's followed by similar language in Article 2.
21 Can you say, no, you don't have the jurisdiction?
22 MR. MORAN: Your Honour, no. You clearly
23 have the jurisdiction. The question before you is not
24 whether the jurisdiction of the Tribunal because it's
25 more than just this Trial Chamber -- has the
1 jurisdiction to prosecute persons committing or
2 ordering to be committed grave breaches. Clearly you
3 do. The question I am presenting is, if
4 Bosnia-Herzegovina was not at party, at the times
5 applicable to this, could anyone who was acting an as
6 agent of the Government of Bosnia-Herzegovina commit a
7 grave breach if that did not apply to them? That is
8 the issue that I am presenting. Clearly after December
9 31, Bosnia-Herzegovina became a party to the
10 conventions and so I am presenting a slightly
11 different, in fact, substantially different argument.
12 Credibility of witnesses. In the Tadic case
13 three Judges of this Court sat in the same three chairs
14 you're sitting in and looked at the witnesses and
15 judged credibility. I don't think the fact that they
16 thought witnesses were credible in the Tadic case
17 really is very binding on you in whether witnesses are
18 credible in this case. I think that's an absurd
20 I do think we ought to point out, and one of
21 my colleagues asked me to point it out, that in all
22 innocence, the Office of the Prosecutor called a
23 witness who was a card-carrying perjurer and presented
24 him as a witness of the truth.
25 Judge Jan, you hit the nail right on the head
1 on one thing about Mr. Harraz. He gets up and says he
2 is a credible guy, believe him about this and believe
3 him about that; but how about believing when he denies
4 filming or taking part in beatings of inmates in
6 Judge Jan, on at least two occasions I
7 recall, one of which I can find in the transcript
8 because I'm not as good at computers as I thought I
9 was, you asked witnesses for the Office of the
10 Prosecutor how many times there were Arab journalists.
11 And every time I recall you asking that question the
12 response was one.
13 Risto Vukalo, look at the videotapes. After
14 that experience, even Mr. Niemann was laughing, as I
16 Another thing that was just tossed out at you
17 was the bombing of Konjic by the JNA air force. I have
18 been informed by one of my colleagues that it is in the
19 record that that occurred on May 10th, 1992.
20 JUDGE JAN: I thought this was the Ljuta
21 barracks, where they were taking out certain ammunition
22 that was stocked there, that this place was bombarded.
23 MR. MORAN: I recall a videotape shot in
24 Konjic with actually the aircraft --
25 JUDGE KARIBI-WHYTE: Much of Konjic.
1 MR. MORAN: As I recall the air attacks were
2 on the city, on Konjic. And as I recall, one of my
3 colleagues, Mrs. Residovic pointed it out to me, that
4 that occurred on the 10th of May, 1992.
5 We have suggested that the Trial Chamber
6 accept the formulation on international internal armed
7 conflict that was used by Commander Fenrick, a member
8 of the commission on experts, when he reported to the
9 Canadian government, his government, that before April
10 6th it was an internal armed conflict, April 6th to May
11 19th, the order splitting the JNA, international.
12 JUDGE JAN: But there is another aspect,
13 whether it is international conflict or not. I think
14 the best evidence would be provided by the government
15 of Bosnia-Herzegovina. Their own declaration of war
16 naming the parties who committed the aggression, would
17 that not be evidence of it being an international armed
18 conflict? Because the government of Bosnia-Herzegovina
19 is a proper body to say whether it is internal conflict
20 or international armed conflict.
21 Apart from that, you have all of the
22 government of Serbia said that we were drawing up
23 forces from there. But then there is a resolution of
24 the security council imposing comprehensive sanctions
25 on Serbia saying that they had not complied with the
1 earlier direction of withdrawal. So, at least on the
2 30th of May when the security council imposes
3 comprehensive sanctions against the government, the
4 security council (inaudible).
5 MR. MORAN: Let me answer it a couple of
6 ways, and if I don't answer it satisfactorily keep
7 coming with questions and I'll work until I can.
8 The first thing I would say is while the
9 position of Bosnia-Herzegovina may be some evidence, I
10 think it is clearly not binding upon the Trial Chamber.
11 If you want to look at evidence, you can look in the
12 Prosecutor's own written submission to you on the May
13 22nd agreement signed by Izetbegovic and the SDS.
14 JUDGE JAN: It was to be ratified, and I
15 think I did raise this question when the trial was
16 going on whether someone ratified it or not; and I
17 think the answer was no. Only if a certain thing
18 happened, and that thing did not happen, how can you
19 say --
20 MR. MORAN: Your Honour, it was an agreement
21 under Common Article 3, and the parties to that
22 agreement, which the Prosecutor tells you the parties
23 of the conflict, in their written submission, were the
24 SDA, the SDS, the Bosnian Croatian community and the
25 government of Bosnia-Herzegovina.
1 JUDGE KARIBI-WHYTE: Supervised by the Red
3 MR. MORAN: And the Red Cross, also, no
4 question about that, Your Honour. In fact, this kind
5 of Article 3 agreement, the Red Cross is only going to
6 try and get if the Red Cross believes it is an internal
7 armed conflict. So, if internal armed conflict breaks
8 out in, pick a country, the Philippines, the Red Cross
9 is going to try and get one of those.
10 As for the United Nations and the security
11 council's resolutions, Your Honour, I would suggest to
12 you that if those are binding upon this Trial Chamber
13 and upon the Tribunal --
14 JUDGE JAN: A piece of evidence of which you
15 can take judicial notice, nothing more than that.
16 MR. MORAN: Again, it's like the position of
17 the government of Bosnia-Herzegovina, it is some
18 evidence. You can take it for what it is worth.
19 You're not bound by it. You may be a creature, you
20 being the Tribunal, may be a creature of the security
21 council, but you are not bound in your judicial duties
22 by that. That would be a horrible depravation of every
23 right in the world.
24 JUDGE JAN: It is a piece of evidence.
25 MR. MORAN: Yes, I agree.
1 JUDGE KARIBI-WHYTE: Where do you get your
2 evidence about internationality of armed conflict?
3 MR. MORAN: Internationality of armed
5 JUDGE KARIBI-WHYTE: Where do you get your
7 MR. MORAN: Well, Your Honour, you do it the
8 same way the Tadic Trial Chamber did. You look at the
9 evidence presented to you. You look at May 19th
10 order. You look at the other factors that are there
11 and you make that kind of reasoned judgement. You
12 decide whether they have proven beyond a reasonable
13 doubt. They pled it, they have to prove it.
14 Especially in the Article 2 counts. I mean, that's
16 They have to prove beyond a reasonable doubt
17 that there was an international armed conflict or we
18 don't get any further than that. You look at the
19 Prosecutor's proof. I believe it comes under the
20 presumption of innocence in Article 21 of the statute.
21 JUDGE KARIBI-WHYTE: That's a different
22 answer than what I asked. I said, where do you get
23 evidence of armed conflicts?
24 MR. MORAN: Of armed conflict and the nature
25 of it?
1 JUDGE KARIBI-WHYTE: Yes.
2 MR. MORAN: There are a lot of places, Your
3 Honour. You get evidence from the witness stand. You
4 have, they brought in two experts, Gow and Calic. You
5 get evidence from them. You weigh the credibility of
6 that evidence. You look at other testimony. You look
7 at the testimony of Witness R. Excuse me, not Witness
8 R, Witness M. Just because it happens to be sitting in
9 front of me, residents that were brought in received no
10 orders from the Republic of Srpska army. Is the
11 republic -- the biggest thing I think you have to look
12 at, and it is an evidentiary problem and something they
13 have to prove, is the relationship between the army of
14 the Republic of Srpska, the rebels, if you would, and
15 the relationship with the Federal Republic of
17 That's, frankly, the issue that the Tadic
18 Trial Chamber had a problem with. It's an evidentiary
19 problem. You look at who controlled what. And if, you
20 look to see if they brought you evidence that convinces
21 you --
22 JUDGE KARIBI-WHYTE: I just asked you this so
23 you will not simplify it as much as you have been
25 MR. MORAN: Yes, Your Honour. If I have
1 oversimplified, I apologise.
2 JUDGE KARIBI-WHYTE: It's so I know what I'm
3 finding when I'm looking at evidence before the
5 MR. MORAN: Let me see, let me flip through
6 my notes real quickly and see if I can give you some
7 time back. The Prosecutor's position that it doesn't
8 make any difference for the grave breaches provisions
9 of the conventions, whether or not it was an internal
10 or international armed conflict, first, has no
11 foundation in law. It has no foundation in fact and
12 it's contrary to the Tadic Appeals Chamber decision.
13 That's just an incredible thing for them to
14 say. It just takes a plain reading of the statute.
15 Exaggeration is not a lie. Take that for
16 what it's worth.
17 Levee en masse, we talked about that.
18 JUDGE KARIBI-WHYTE: Touch only those areas
19 where you find --
20 MR. MORAN: Yes, Your Honour, I'm just
21 flipping through my notes to make sure I cover
22 everything I wanted to cover.
23 Application of Common Article 3 and whether
24 it's incorporated into Article 3 of the statute. The
25 Secretary-General knew what he was doing when he wrote
1 the report that accompanied the statute of this
2 Tribunal to the security council. Presumably he knew
3 what he was doing when he wrote the report that
4 accompanied the statute of the Rwanda Tribunal to the
5 same security council.
6 That is the best evidence of the legislative
7 intent, because the security council adopted his report
8 along with the two statutes. I think that's awfully
9 good proof.
10 I've cited several other sources, Professor
11 Bassiouni and others on whether or not Common Article 3
12 comes within your Article 3 jurisdiction. You're
13 right, I am going to appeal it, or at least I'm
14 presenting the issue to you because I think I have to.
15 You may very well be bound by the Tadic Appeals Chamber
16 decision. I'm not going to argue with Mr. Niemann over
18 I hadn't said anything about this, either,
19 yesterday, or I wasn't really planning on saying
20 anything about this today, but I noticed in my notes
21 there was that thing about witness school, the witness
22 seminars, the allegations on that. I don't know
23 whether there was or whether there wasn't. I wasn't
24 invited, if there was one.
25 JUDGE JAN: You're not a Serb.
1 MR. MORAN: That's true.
2 But let me suggest this to you in judging the
3 credibility of the witnesses. From the beginning of
4 the trial somebody would get -- there would be some
5 discussion about your prior statement, or you did this
6 or that, or on cross, and you would get an "I don't
7 recall," and you got "I don't remember, I don't
8 remember, I don't remember, I don't remember, I don't
9 remember, I don't remember," witness after witness
10 after witness. And then all of a sudden people didn't
11 have a problem not remembering, they had interpretation
12 problems. And then there was a whole series of
13 interpretation problems. And then the interpretation
14 problems stopped and these prior statements were
15 coerced out of them. And it ran in a series.
16 Now, I'm a believer that there is such a
17 thing as coincidence, but sometimes it goes a little
18 far. So, I think the Trial Chamber can look at that in
19 judging the credibility of witnesses.
20 The credibility of Esad Landzo, you're going
21 to have to judge what it is. You're talking about the
22 guy who is the last witness in the trial, he has heard
23 every bit of evidence and he has a computer with the
24 transcripts on it, you know that because he told you
25 that. You got a guy whose own psychiatrist says he is
1 a sociopath. If you want to believe him, fine.
2 I can't stop you. You're welcome to do it.
3 Unless the Court has some other questions,
4 I'm going to thank you for your time this morning and
5 if I took -- actually it was 21 minutes, I think I did
6 pretty well, given my record of running overtime, and I
7 thank you very much, Judge.
8 JUDGE KARIBI-WHYTE: Thank you very much.
9 Any other contribution?
10 MS. RESIDOVIC: Your Honours, yesterday I
11 took five minutes more of your time. I promise that I
12 won't use my 20 minutes today for my right to reply. I
13 should also like to apologise, I have a slight cold,
14 so, I am not going to articulate as well as possible.
15 I would like to speak about two matters which
16 the Prosecutor brought up in his closing arguments
17 today. The question of myth.
18 The Prosecutor tells us that we are talking
19 about a myth by saying that each and every fact, small
20 fact has to be proved; whereas, they say that you prove
21 the case as a whole, and in that sense they have the
22 evidence on their side.
23 Second, they maintain that the Defence wishes
24 to attack the discretion of the Prosecutor, and in that
25 way, once again, to speak about a myth.
1 The Defence does not wish to bring up any
2 myths. We wish to speak about the facts before this
3 Tribunal and the basic laws and rules underlining every
4 criminal case; and that is that the Prosecutor must
5 place the facts before this Court to be proved beyond
6 any reasonable doubt.
7 And the Defence of Mr. Delalic maintains that
8 the Prosecutor has not spoken about any fact which has
9 to do with Delalicís authority has proved beyond reasonable doubt,
10 that they have not proved any of these facts. We do
11 not base our assumptions on myths, but we base them on
12 facts and proof and evidence provided by the Prosecutor
13 and by the Defence alike.
14 None of the witnesses, neither the
15 Prosecution witness or the Defence witnesses confirmed
16 or stated a single word which could determine that
17 Zejnil Delalic was a person in superior authority in
18 the sense of Article 7.3 of the statute, nor that he
19 committed any acts for which he is personally
20 responsible in the sense of Article 7.1 of the statute.
21 I will remind you of two witnesses, the late General
22 Pasalic and General Divjak, both Prosecution witnesses.
23 In connection with the facts, what facts
24 state, and not myths, let me also remind you that the
25 Prosecutor very often, before us and before you, Your
1 Honours, said that he wanted to have the truth
2 determined before this Tribunal. And I'm going to say
3 that it is true that the Prosecutor has a discretionary
4 right as to who he is going to bring before the
5 Tribunal, just as the Defence enjoys the same right.
6 But, the Prosecutor himself, in his
7 investigations, listened to the witnesses which you
8 heard here, that is to say Dr. Rusmir Hadzihuseinovic,
9 DC-4, Bajram Demic, Redzepovic Enver, the first
10 commander of the TO of Konjic, Polutak Mustafa, the
11 first commander of tactical group one.
12 None of those were brought by the Prosecutor
13 to the Tribunal, to the Chamber. They were brought by
14 the Defence itself. That is the truth, Your Honours,
15 which we should like to indicate and for which we say
16 that the evidence presented before this Trial Chamber
17 are not myth, but facts which confirm that the
18 Prosecutor, vis-à-vis Zejnil Delalic, has not succeeded
19 in proving a single one of those facts.
20 He has not succeeded in proving beyond all
21 reasonable doubt that, at any time, Zejnil Delalic had
22 a position of superiority. I should also like to tell
23 you, Your Honours, and that is something that the
24 Prosecution is well aware of, that Zejnil Delalic
25 already in May 1996 quite openly suggested an exchange
1 of evidence, and up to July 1996 supplied the
2 Prosecutor with all the statements of the individuals
3 who were investigated and they all said the same thing,
4 that Zejnil Delalic gave the Prosecution evidence, that
5 is he gave orders dating the 24th of August and the
6 28th of August because he had nothing to hide. He
7 transferred the orders of the Supreme Command to the
8 municipal staff. And you heard General Polutak, not
9 this conveyance of orders, but a combat order to a
10 combat unit. This was transferred by Polutak
11 as commander of the tactical group and ordered that it
12 pass through occupied territory of Gorazde.
13 So the assertion of the Prosecutor that the
14 conveyance complies with the chain of command, this has
15 not been borne out by the evidence.
16 When we are talking about the myth that is
17 being offered, I did not want to raise this matter
18 yesterday, but I should just like to remind you today
19 of two points from the written submission of the
21 When there are no facts, then the Prosecutor
22 offers something that is not a fact. What does he do?
23 Namely, in point 430 C, page 166, the Prosecutor tells
24 us that his witness, just imagine that, General Divjak,
25 who visited, together with Mr. Delalic, the warehouses,
1 ammunition warehouses that you see over there; he does
2 not say that, he says when they visited Celebici that
3 he considered that Celebici were under the command and
4 control of Mr. Delalic.
5 On the page that the Prosecutor quotes,
6 General Divjak says, "I, with Mr. Delalic visited the
7 ammunitions warehouse," and when asked by the
8 Prosecutor under whose authority were they, he says
9 that the ammunition warehouses I think were under the
10 competency and authority of the TG2 group, Mr. Delalic.
11 And when you, Your Honours, asked on page
12 8.683 under whose authority was the prison? General
13 Divjak answers and says, "I think it was under the
14 authority of the municipal staff."
15 Therefore, it is the facts that you are going
16 to appraise, and it is the facts that stand up in
17 defence of Mr. Delalic and not myths.
18 For this reason yesterday we quoted the
19 example of the failure to call one of the commanders,
20 Esad Ramic, because he was brought under subpoena by
21 the Prosecutor, because he convinced the Trial Chamber
22 that the subpoena was necessary, because he had
23 something to say; whereas, the witness did not enter
24 this courtroom.
25 In that way, that is how facts are viewed,
1 and we do not make myths out of facts, we have facts.
2 I know, Your Honours, that you are also going
3 to take all the other facts into consideration. In the
4 written submissions there are some other assertions
5 stated to be in the evidence which is not there. Let
6 me quote two.
7 It is maintained in point 4155 that Zejnil Delalic
8 appointed Pavo Mucic in written form. If you
9 take a look at this, Pavo Mucic never said that.
10 Although, there is your decision that the statement of
11 one individual cannot be used against another
13 The next question I wish to raise is
14 something that we heard comment about by my colleague,
15 and that is that it was unthinkable for me to hear the
16 explanations by the Prosecutor as to whether
17 Bosnia-Herzegovina is a state and whether it has the
18 right to control its own territory or not.
19 That is on the 6th of April recognised and on
20 the 22nd of May accepted into the United Nations; and
21 let me remind you of the words of General Divjak, the
22 Prosecution's witness, who in that independent state
23 took Ivan Sedlo, the Thermopile of Bosnia, on its own territory. It is the
24 question of that territory's defence and every
25 commander who would not try to deblock a town like
1 Konjic, then the commander would be the responsible
3 Unfortunately, in Sarajevo, for four years,
4 we tried to liberate ourselves, but we were not able to
5 do this without the help of the international
7 And the last thing that I want to say is the
8 following. It was stated that the Defence has no
9 feeling for the victims. I did not want to raise this
10 question yesterday because this Trial Chamber and its
11 statute relies on individual responsibility; but these
12 are the first individuals who have been brought before
13 an international court of law who were, at the same
14 time, the victims. They were in the country and the
15 town that was under attack.
16 And the Prosecutor has not yet brought
17 forward somebody from another state which was also
18 attacked, as a reaction, and then committed a crime in
19 that sense; because the provisions and rules of this
20 Tribunal allow for that.
21 We cannot be accused of not having feelings, whether somebody was
22 murdered, whether he was mistreated, left to go hungry. Perhaps
23 the Prosecutor will call upon me as a victim of a town where 12.500
24 people were killed and 5500 were wounded, perhaps I will be called to
25 testify, or my 13 year old child who tried to help me get up as I lay wounded.
1 So, we do have feelings for victims, because
2 we were all victims, we were all killed, we all had to
3 go hungry, we were all wounded and injured and had to
4 live in the dark.
5 But we're not discussing feelings in this
6 Trial Chamber. We are discussing whether the
7 Prosecutor has been able to show beyond any reasonable
8 doubt the facts as they stand. And Your Honours, I
9 know that with those facts before you, you will
10 ascertain that the Prosecutor has not proved beyond
11 reasonable doubt, not one single fact with regard to Zejnil Delalic Thank you.
12 JUDGE KARIBI-WHYTE: Thank you, we will now
13 have a break and reassemble at 12.00
14 --- Recess taken at 11.34 a.m.
15 --- On resuming at 12.05 p.m.
16 JUDGE KARIBI-WHYTE: Yes, may we hear you.
17 MR. KUZMANOVIC: Thank you, Your Honour. I
18 know one of the biggest myths that lawyers say is,
19 we'll be brief. But I will be brief.
20 JUDGE KARIBI-WHYTE: In these circumstances
21 you are expected to be.
22 MR. KUZMANOVIC: I would like to talk on just
23 a couple of issues. The first issue is the
24 international armed conflict issue. I would like to
25 cite the Court to pages 278 and 279 of the
1 Prosecution's submission on the issue of whom they
2 consider to be parties to the conflict. That being
3 Serbian Democratic Party, the Croatian Democratic
4 Community and the Party of Democratic Action. I think
5 that amounts to an admission of who they think the
6 parties of the conflict are.
7 Further on that issue, I would like to point
8 the Court to something that's somewhat simplistic, but
9 I think it's very apropos. Pull out a map of
10 Bosnia-Herzegovina and take a look of where Konjic
11 lies. If this was an issue involving perhaps Belijna
12 and Zvornik, which is right on the border of
13 Bosnia-Herzegovina and Serbia Federal Republic of
14 Yugoslavia. Perhaps there may be a more compelling
15 argument to the issue of international armed conflict,
16 but given where this occurred -- and General Divjak in
17 his testimony talked about this and we talk about it in
18 our submission -- it's more of a local conflict in this
19 area between local people.
20 The other issue I wanted to talk about just
21 briefly is a comment by the Prosecutor in his rebuttal
22 about the governments for which the defence works or
23 the government for which the defence works, wanting
24 this to be an international armed conflict. I am not
25 supposing that that means that the lawyers and their
1 clients are employees of the government, I think that's
2 just the position that the prosecution is taking the
3 government has itself and not the attorneys. But I
4 wanted to point that out.
5 I am glad to hear that Mr. Mucic's lack of
6 authority in Celebici is not considered to be a myth by
7 the Prosecution in its rebuttal. I think two important
8 things we'd like you to look at with respect to
9 Mr. Mucic and command responsibility, command
10 authority: One is, Mr. Delalic is alleged to have
11 appointed Mr. Mucic. And if Mr. Delalic has not
12 appointed Mucic, then the question must be asked, well
13 where did that come from? Where did that authority
14 flow from? Because the indictment flows from the
15 top to the bottom with respect to command
16 responsibility. And if Mr. Delalic didn't appointment
17 Mr. Mucic, then who did? There is no evidence one way
18 or the other.
19 In a society, I think this is true in most
20 regions in Bosnia-Herzegovina, Croatia and wherever,
21 which is fixated on stamps and signatures and
22 documents, you see before you this cart of hundreds and
23 hundreds of documents and not one of those documents
24 indicates any appointment of Mr. Mucic, any parameters
25 for Mr. Mucic with respect to Celebici out of the
1 hundreds and hundreds of documents that sit before
3 Finally, I would like to point out that on
4 the issue of whether or not the indictment needs to be
5 proven beyond a reasonable doubt, meaning the facts, I
6 do believe that the Prosecution has a burden to prove
7 up the facts in the indictment. Obviously you don't
8 have to prove up every single fact within the whole
9 case. But the indictment in and of itself is the
10 indictment upon which the accused must stand trial.
11 And the Prosecution has that burden to prove the
12 allegations within the entire indictment, not just part
13 of the indictment, beyond a reasonable doubt. And, for
14 these reasons, we believe Mr. Mucic should be
15 acquitted. Thank you, Your Honours.
16 JUDGE KARIBI-WHYTE: Thank you, very much.
17 MS. McMURREY: May it please the Court?
18 JUDGE KARIBI-WHYTE: Yes, you may proceed,
20 MS. McMURREY: Thank you.
21 Mr. Landzo was never called a sociopath by
22 anyone in the testimony before this Court. Dr. Gripon
23 used anti-social. Sociopath was a creation made by
24 Mr. Delic's attorney. Mr. Delic's total defence has
25 been that everybody that testified from that witness
1 stand was incredible, was lying.
2 As I promised Judge Jan, I am now going to
3 read into the record, the submission of the Defence on
4 what the definition of torture should be from the
5 Defence perspective. And under the Geneva Convention
6 and under -- we wish to accept to propose the
7 definition of torture used by the ICRC in which it says
8 that torture is more than mere assault on the physical
9 and moral integrity and torture is the infliction of
10 suffering on a person to obtain from that person or
11 from another person, confessions or information. What
12 is important is not so much the pain itself as the
13 purpose of its infliction. It's much narrower than the
14 Prosecution submission on torture, which, of course,
15 includes such vague considerations as to intimidate or
16 coerce. So we believe that this submission should be
17 limited for the purposes described in the Geneva
18 Convention as applies to warfare.
19 Now, Mr. Niemann also talked to us about
20 prosecutorial discretion. I preferred to call it
21 selective Prosecution yesterday, but Mr. Niemann has
22 called it prosecutorial discretion. Mr. Niemann and
23 Judge Jan asked if I had taken up that subject with the
24 Prosecutor herself. I have to admit that I was
25 remiss that I had not taken that up with the
1 Prosecutor. But this morning we hand delivered a
2 letter to Ms. Arbour to please consider under Article
3 21 and under the guarantees of equity in this Tribunal
4 that the indictment against Mr. Landzo be dismissed.
5 And Mr. Niemann claims that Tribunal Chamber does not
6 have the right to interfere with prosecutorial
7 discretion. The truth is that this Trial Chamber is
8 here to guarantee and protect the guarantees under the
9 statute of this tribunal. And one of the guarantees is
10 equality. And as Judge Karibi-Whyte says, that he
11 stated on many occasion, that this Trial Chamber has
12 the duty to see that justice is served.
13 Also, as Mr. Kuzmanovic had stated, Mr.
14 Niemann is seeking to limit the proof of the Prosecutor
15 to merely the elements of the offence as he described
16 it. Well, when you read our statute, there are no
17 specific elements outlined. But in almost all
18 jurisdictions outside of this Tribunal and probably
19 adopted by this Tribunal, they hold the Prosecutor to
20 proving every allegation asserted in the indictment.
21 So to say that the burden is something less flies in
22 the face of the rights of the accused guaranteed under
23 Article 21. Not only is he tempted the limit the
24 burden, he is almost shifting the burden by saying that
25 he does not have to prove every allegation in the
2 There have been several attempts of Esad
3 Landzo to come before this Trial Chamber and tell the
4 truth over the past two years. The first time in 1996
5 he asked his Bosnian lawyer to --
6 THE INTERPRETER: Could the counsel please
7 slow down for the benefit of the interpreters.
8 MS. McMURREY: Thank you. I want to
9 apologise to the interpreters right now. I do tend to
10 talk fast. I will be giving back time, so I can slow
11 down this time.
12 But he tried to cooperate at that point. He
13 reached out to Ms. McHenry at the end of 1996, saying
14 that in a letter that he wanted to be executed by a
15 firing squad and wanted to discuss things with her.
16 JUDGE JAN: Cooperation.
17 MS. McMURREY: Yes, Your Honour. In fact, I
18 had a meeting with Ms. McHenry and Mr. Niemann in the
19 summer of 1997 saying that he wanted to cooperate. But
20 his lead counsel did not consent to that then, so our
21 proposals were not considered.
22 JUDGE JAN: Proposal for execution.
23 MS. McMURREY: No, I didn't reach out to them
24 to have him executed, I reached out to them to see if
25 we could see if we could reach some kind of agreement
1 for cooperation.
2 He also sought to tell truth by asking his
3 witnesses who had previously agreed to come before this
4 Trial Chamber and testify who subsequently, right
5 before testifying, were somehow persuaded not to come
6 by other sources to come and tell the truth and they
7 refused. At the risk of his life and the life of his
8 family, he has come here to tell the truth. This
9 decision, this risk, should not be taken so lightly.
10 Mr. Niemann keeps describing these myths.
11 His sixth myth that he alleged that diminished mental
12 responsibility is not a Defence. That's exactly the
13 statement he said in opening that section up. The
14 Homicide Act of 1957 labelled it a defence as a matter
15 of law. The Rome statute, which was adopted in July,
16 but for the rules promulgated for in a permanent
17 international court to be established says that
18 diminished mental responsibility is a law. And the
19 laws of this Tribunal clearly say that as a matter of
20 law, diminished responsibility is a Defence. It's not
21 merely mitigation of punishment. Judge Karibi-Whyte
22 correctly recognised that this Trial Chamber can apply
23 any law it feels is appropriate in the interest of
24 justice. We're not bound by national laws or state
1 Now, we had to prove beyond a preponderance
2 of the evidence that Esad Landzo suffered from an
3 abnormality of mind that substantially impaired his
4 ability to exercise his free will and decisions in the
5 Celebici camp in 1992. We had to prove that by a
6 preponderance of the probabilities, the lowest burden
7 of proof in any legal system. We have met that burden
8 of proof with this Trial Chamber, with the evidence put
10 Now, Mr. Niemann also talked about myth
11 seven, was that the Prosecution witnesses were
12 incredible or uncredible. And Mr. Niemann should be
13 most familiar as all as mentioned before with the
14 hidden political agendas of persons coming before this
15 Tribunal to testify. In fact, he knows that once in
16 his zeal as an advocate, maybe he didn't ask the right
17 question to ask if his witness was telling the truth.
18 And maybe that witness was subsequently charged with
19 perjury before this Trial Chamber.
20 He talked about the association of
21 detainees. He said he never heard of the witnesses
22 going up there and talking about their stories with
23 each other. He never heard that the association of
24 detainees interfered here. Well, it's my submission
25 that Mr. Niemann was not present during most of the
1 Prosecutor's case. And if he'd only look at one in
2 particular, Mici Kuljanin, who testified for the
3 Prosecution, on cross-examination by one Defence
4 counsel, he said, no, he had never met with the
5 association of detainees and he did not have an
6 escort. That very evening he was found in the presence
7 of the representative of the association of detainees
8 and another testifying witness down at the beach. And
9 that was brought out on cross-examination the following
10 day. Mr. Niemann just needs to review the evidence in
11 this case to be aware of the interference of the
12 association of detainees from Belgrade.
13 Now, Mr. Niemann may claim that all the
14 evidence in this case put forth by the Defence is a
15 myth. And Ms. McHenry may claim that the Defence of
16 diminished mental responsibility is a joke, but this
17 approach by the Prosecution, a body set out to search
18 for justice and truth, is a conundrum, an oxymoron.
19 This past 18 months has been taken very
20 seriously by all of these defendants up here, in
21 particular, by a young man named Esad Landzo, who is
22 facing the possibility of life imprisonment. It's a
23 shame that the Prosecution put these accusations in a
24 light of calling them a myth, that the Defence was a
25 myth or a joke. We are not here to create myths.
1 We're not here to create jokes. We're here as the
2 embodiment of the aims and goals of the United Nations
3 to see that justice is done. Thank you.
4 JUDGE KARIBI-WHYTE: Thank you very much. I
5 think this is the last of your submissions and we're
6 very grateful for your efforts in lucidly stating in
7 what perhaps might have been obscured in our earlier
8 arguments. We are grateful you could find time within
9 the limited period to put them down so succinctly that
10 the Trial Chamber can be better guided in determining
11 the evidence which has been put forward before us for
12 the past -- how many months? About 18 or 19 months.
13 It's a long time. We are grateful, perhaps, even if
14 memory was failing. You have done enough to remind us
15 of what has transpired, even for things that were out
16 of the records because in your submissions so many
17 things have been said, which perhaps may not be found
18 in the record of proceedings themselves.
19 We'll do our best as impartial arbiters
20 between contesting parties. We're all familiar with
21 justice in the way it has been done. We are
22 particularly grateful to the parties and especially the
23 Defence in the manner in which they have actually led
24 evidence and trying to go to the root of the matter,
25 even for areas we did not need to do so. So we're very
2 As I said, we'll do our best in the
3 interpretation of the provisions which are a little
4 obscure in the views which have been severely
5 criticised on both sides and in those areas where,
6 perhaps, good jurisprudence allows a Trial Chamber to
7 go to the bottom of the matter and determine issues as
8 we see them. As you know, it takes some time to put
9 these things down, to reflect on them and come out with
10 a rational justice. I delicately use the word rational
11 justice because of the issues confronting us and the
12 situations under which we have been working.
13 Thank you very much. This is the end of the
14 open session, so it will be closed session when we next
15 come around. It will be about reading the judgement and
16 then of subsequent matters.
17 You remember we promised you that we would
18 not allow the amendment of the rules to prejudice your
19 chances of bringing forward further evidence in the
20 interest of plans of accused persons who have to
21 produce evidence in mitigation of sentence. So we'll
22 take that into consideration. And, if it becomes
23 necessary to do that, we'll give you sufficient time to
24 file such evidence or produce any such witnesses who
25 might give testimony in respect of sentencing. Thank
1 you very much. So we'll now adjourn.
2 --- Whereupon proceedings adjourned at
3 12.25 p.m., to be reconvened sine