1 Thursday, 15th October, 1998
2 (Open session)
3 --- Upon commencing at 10.12 a.m.
4 JUDGE KARIBI-WHYTE: Good morning, ladies and
5 gentlemen. May we have the appearances, please?
6 MR. NIEMANN: Good morning, Your Honours. My
7 name is Niemann and I appear with my colleagues, Ms.
8 McHenry and Mr. Huber, for the Prosecution.
9 JUDGE KARIBI-WHYTE: Can we have the
10 appearances for the Defence, please?
11 MS. RESIDOVIC: Good morning, Your Honours.
12 My name is Edina Residovic. I'm representing
13 Mr. Zejnil Delalic. Along with me here is Mr. Eugene
14 O'Sullivan, Professor from Canada. Thank you.
15 MR. MORRISON: Good morning. I'm Howard
16 Morrison. I appear with Madam Buturovic for the
17 defendant Mucic.
18 JUDGE KARIBI-WHYTE: Thank you. May we have
19 the further appearances, please?
20 MR. KARABDIC: Good morning, Your Honours.
21 I'm Salih Karabdic, attorney from Sarajevo. I
22 represented Mr. Hazim Delic, together with my
23 colleague, Mr. Tom Moran, attorney at law from Houston,
25 MS. BOLER: Good morning, Your Honours. I'm
1 Nancy Boler, and together with lead counsel Cynthia
2 McMurrey, who is not present in the courtroom today, we
3 represent Mr. Esad Landzo.
4 JUDGE KARIBI-WHYTE: Thank you. We are still
5 on with Ms. Residovic.
6 MS. RESIDOVIC: I would like to call
7 Mr. Nebojsa Manigodjic to the courtroom. The Defence
8 has completed its examination-in-chief, and I believe
9 it's my colleague turn now from the Prosecution.
10 JUDGE KARIBI-WHYTE: Yes. Bring in the
12 (The witness entered court)
13 JUDGE KARIBI-WHYTE: You may proceed,
14 Mr. Niemann. Kindly remind the witness he is still
15 under oath.
16 THE REGISTRAR: Sir, I remind you that you
17 are still under oath.
18 WITNESS: NEBOJSA MANIGODJIC
19 Cross-examined by Mr. Niemann:
20 Q. Good morning, Mr. Manigodjic.
21 A. Good morning.
22 Q. I just wanted to ask you some questions about
23 what you were saying in your evidence. Did you say
24 that you lived in Konjic up until the war and then went
25 to Jablanica or did you always live in Jablanica?
1 A. I always lived in Jablanica, and my family
2 has been living in Jablanica for 250 years.
3 Q. I take it then that your business extended
4 into areas such as in Konjic?
5 A. Yes. This is a very narrow area, and
6 Jablanica is only, maybe, 40 kilometres away from
8 Q. You said that you visited Mr. Delalic in
9 Vienna, and you saw him in the club there. Do you
10 remember the name of the club?
11 A. It was the club that gathered friends of
12 Bosnia. This was the basis for their getting together.
13 Q. Did you know whether or not Mr. Delalic had
14 any connection to that club, other than being just a
15 member of it?
16 A. I did not have any specific information that
17 he was. As I told you, people who gathered in that
18 club, as far as I learned, in Vienna, were people from
19 Jablanica, whom I knew and whom I had to see on that
20 occasion. So that was the reason of my going there.
21 On that occasion, I also met with Mr. Zejnil Delalic.
22 Q. Did you stay with Mr. Delalic on that
23 occasion at his home?
24 A. On that occasion, I stayed both at
25 Mr. Delalic's home, maybe for one day, and the rest of
1 the time I spent with other people from Jablanica.
2 People are curious. They were wanting to know how
3 things were at home, so I had to spend some time with
4 all of them.
5 MR. NIEMANN: Your Honours, excuse me a
6 moment. No further questions, Your Honour.
7 JUDGE KARIBI-WHYTE: Thank you. Any
8 re-examination? Have you any re-examination?
9 MS. RESIDOVIC: No, Your Honour. Thank you.
10 JUDGE KARIBI-WHYTE: You are discharged. You
11 may go.
12 THE WITNESS: Thank you.
13 (The witness withdrew)
14 MS. RESIDOVIC: I call the witness Ibrahim
15 Cilic to take the stand.
16 (The witness entered court)
17 THE WITNESS: I solemnly declare that I will
18 speak the truth, the whole truth, and nothing but the
20 MS. RESIDOVIC: May I proceed, Your Honour?
21 JUDGE-KARIBI-WHYTE: You may, yes.
22 WITNESS: IBRAHIM CILIC
23 Examined by Ms. Residovic:
24 Q. Good morning, sir. Could you please
25 introduce yourself by stating your full name?
1 A. My name is Ibrahim Cilic.
2 Q. Mr. Cilic, what is your ethnic background and
3 what is your nationality?
4 A. I'm a Bosniak by ethnic background, and I'm a
5 national of Bosnia and Herzegovina.
6 Q. Mr. Cilic, are you related to Mr. Delalic?
7 A. Not directly, but I married the daughter of
8 his brother Dzafer, his niece. I guess you can call it
9 a family relationship.
10 Q. How long have you known Mr. Delalic?
11 A. I've known Mr. Delalic since 1985. I married
12 Almina that year. She is the daughter of his late
13 brother Dzafer.
14 Q. After that, did you meet with Mr. Zejnil
15 Delalic frequently?
16 A. Yes. We met on a number of occasions after
18 Q. Mr. Cilic, do you know what kind of family
19 Mr. Delalic is from?
20 A. Mr. Delalic comes from a large and poor
21 family. He has a lot of brothers and sisters.
22 Q. Mr. Delalic, when he became a successful
23 businessman, do you know whether he helped members of
24 his family?
25 A. Yes, I did. As far as I know, he was quite a
1 successful businessman in Germany, and he helped his
2 family, both his close family and his large family. I
3 know that he helped, personally, my wife, his niece
4 Almina. He paid for her education in Sarajevo, and he
5 also helped her brother.
6 Q. Did you and your wife feel gratitude towards
7 Mr. Zejnil Delalic because of his attitude towards her?
8 A. Yes, because of his attitude, not only
9 towards her, but towards the whole family in general.
10 We were really thankful to Mr. Zejnil Delalic, and we
11 also decided that we should help his family now that he
12 was in trouble.
13 Q. This is exactly what I would like to ask
14 you. Do you know where Mr. Delalic's children and his
15 wife live at the moment?
16 A. Mr. Zejnil Delalic's children are living
17 currently in Belgrade, and they come, from time to
18 time, to their family house in Konjic. I saw them
19 there on a couple of occasions.
20 Q. Mr. Cilic, do you know who supported the
21 children and the ex-wife of Mr. Zejnil Delalic before
22 he was detained?
23 A. Before Mr. Zejnil Delalic was detained, he
24 personally supported his children and his wife. As far
25 as I know, he held his family in very high regard.
1 Q. Mr. Cilic, you said, as a sign of gratitude
2 for Mr. Delalic did for your wife when she was in need,
3 that you decided to help his family now. Tell us, what
4 do you do exactly in Jablanica?
5 A. Yes, exactly as you said, we decided to help
6 his family. Now I have a private business in
7 Jablanica, and I have certain means and resources to
8 help them now that they are in a very difficult
10 Q. Mr. Cilic, do you know whether, throughout
11 this period, this year or last year, whether Gordana
12 Delalic, the wife of Mr. Zejnil Delalic, came to Konjic
13 with her children. If she did so, could you tell us
14 how she was accepted, how she was received, by your
15 family and the town of Konjic in general?
16 A. His wife used to come to their family house
17 in Konjic, and me and my wife, we would personally go
18 there to pay them a visit in their family house, and
19 she was received very well by citizens of Konjic in
20 general. When we went there to that house, we saw
21 people from all ethnic backgrounds in their house, lots
22 of their friends who never stopped being their friends,
23 people who were interested in his situation and people
24 who came to The Hague. She was received very well by
25 all of them.
1 Q. Mr. Cilic, since you are related to
2 Mr. Zejnil Delalic, could you tell us whether you know
3 that Zejnil Delalic, whenever he could, helped people
4 who were not members of his family?
5 A. Yes. I'm aware of that. He helped a lot of
6 citizens from Jablanica. Whenever he was asked for
7 help, he would gladly do so, either financially or in
8 any other way.
9 Q. Mr. Cilic, did you ever notice Mr. Delalic
10 having a different attitude towards members of other
11 ethnic communities, or did he have friends from all
12 ethnic backgrounds?
13 A. I didn't notice any difference in attitude,
14 any difference in his behaviour. He was very
15 well-respected by anyone as an honest man, a highly
16 moral person. Mr. Delalic was thought to be a
17 cosmopolitan, and he never distinguished amongst people
18 according to their nationality, religion, of any such
20 Q. Did you meet with him on a couple of
21 occasions in Jablanica during the war? If you did, did
22 you notice that he had changed in any way, that he had
23 changed his attitude in that respect?
24 A. I met him only once during the war in
25 passing. Actually, I just saw him, and I didn't have
1 an opportunity to talk to him. At that time, we were
2 all running around. We had lots of obligations, but I
3 didn't notice any change in his behaviour. On the
4 contrary, he was esteemed by everyone in the community.
5 Q. My last question for you, Mr. Cilic, when
6 Zejnil Delalic left the area in late 1992, the Court
7 knows, and you as a member of his family probably also
8 know, that he was a victim of very intensive
9 propaganda. He was accused of being a member of KOS.
10 What I'd like to know is whether Zejnil Delalic, in
11 spite of that, continued helping people who were in
12 trouble. Do you know of any specific example as
13 regards Jablanica where he sent some assistance, some
14 aid, to the town in general?
15 A. Yes. I am aware of that. I know that he
16 helped people in Ostrozac and Jablanica at that time.
17 My mother-in-law spent some time in the area after the
18 conflict with the HVO, and I know that he even sent
19 some money on one occasion for the flour to be
20 purchased for the town of Jablanica in general. At
21 that time, both Muslims and Serbs lived in Jablanica.
22 It was a mixed community. He helped individuals in
23 general, if anyone needed, for example, medical
24 treatment and things like that.
25 MS. RESIDOVIC: Thank you very much,
1 Mr. Cilic. I have no further questions.
2 JUDGE KARIBI-WHYTE: Have you any examination
3 of this witness?
4 MR. MORRISON: None for Mr. Mucic.
5 MR. KARABDIC: No questions, Your Honour.
6 MS. BOLER: None from the Defence of Esad
8 JUDGE KARIBI-WHYTE: Have the Prosecutor any
9 questions for him?
10 MR. NIEMANN: Thank you, Your Honour.
11 Cross-examined by Mr. Niemann:
12 Q. Mr. Cilic, did you ever hear of Mr. Delalic
13 being referred to by a nickname of Pera, P-E-R-A?
14 A. No, I haven't.
15 MR. NIEMANN: No further questions, Your
17 JUDGE KARIBI-WHYTE: Call your other
18 witness. You are discharged. Thank you very much for
19 your assistance.
20 (The witness withdrew)
21 MS. RESIDOVIC: I call the next witness for
22 the Defence, Mr. Branko Tomann.
23 (The witness entered court)
24 THE WITNESS: I solemnly declare that I will
25 speak the truth, the whole truth, and nothing but the
2 WITNESS: BRANKO TOMANN
3 Examined by Ms. Residovic:
4 Q. Good morning, sir. Will you please introduce
5 yourself by giving the Court your full name?
6 A. My name is Branko Tomann, and I would like to
7 extend my greetings to all the ladies and gentlemen
8 present in the courtroom.
9 Q. Mr. Tomann, will you please tell us, what is
10 your ethnic background and what is your citizenship?
11 A. I'm an Austrian.
12 Q. Mr. Tomann, what are you by profession?
13 A. I am a medical technician. I'm a specialist
14 in radiology, and I also graduated in Slavic studies.
15 Q. Did you also engage in any sports activities?
16 A. Yes. Until the age of 50, that is, until
17 1990, I was a referee in the Soccer Association of
18 Austria. After 1994, I joined the Football Association
19 of Bosniaks in Austria. At first, I was a referee, and
20 then I became an instructor who controls the quality of
21 the work of referees. I'm also a member of the
22 Football Association.
23 Q. As everybody can notice, as an Austrian
24 citizen, you speak Serbo-Croatian very well. You said
25 you studied Slavic studies, but can you tell us where
1 you were born and did you live in Bosnia-Herzegovina at
2 any time?
3 A. I forgot my Serbo-Croatian a little bit, but
4 I was born in Bosnia and I lived there for 18 years.
5 Q. You lived in Bosnia as an ethnic minority, an
6 Austrian in Bosnia?
7 A. Yes, that's correct. I lived there. My
8 grandfather was a high ranking officer in the Austrian
9 army, so my mother tongue is really Austrian, but we
10 got along very well with people in Bosnia, and I still
11 have affection for it.
12 Q. Very well. Mr. Tomann, how long have you
13 known Mr. Zejnil Delalic?
14 A. I met Mr. Delalic sometime in mid-1994.
15 Q. Mr. Tomann, when did you meet Mr. Delalic and
16 on what occasion?
17 A. This is, I don't know, maybe a longer or a
18 shorter story. When I take the tram to go to work in
19 the 17th district in Vienna, in Tabergasstrasse 15,
20 once as I was riding on the tram, I saw a sign saying
21 Gemeinschaft BiH and let me give you a translation. It
22 was actually an association of Bosnia and Herzegovina.
23 That's where I met him.
24 Q. You said that you saw this sign in the middle
25 of 1993 and that you met him sometime in mid-1994. Did
1 you go in to the premises of this association and did
2 you join this association as an Austrian?
3 A. Until 1990, as a person who used to live in
4 Yugoslavia, I associated with all nations and
5 minorities from the territory of the former
6 Yugoslavia. When these quarrels started over there, I
7 stopped going to all restaurants or associations or
8 clubs, because I did not know who was behind it all.
9 Maybe there were some extremists there, some
10 nationalists there. So I decided not to pursue this,
11 and then sometime, I think it was in April 1994, an art
12 show opening was going to take place from well-known
13 painters from Serbia, Bosnia, Macedonia, Croatia, and
14 the poster said that all proceeds from this art exhibit
15 were going to be sent as humanitarian help for children
16 in Bosnia.
17 Q. Is this announcement for the art exhibit with
18 participation of artists from all over the Yugoslavia,
19 did that make you decide to go there and join this
21 A. I was hesitating, but there was this lady,
22 Madam Biserka, and there was a well-known painter from
23 Belgrade who managed to get out and bring his work
24 there. I thought that all this showed some kind of
25 solidarity. I thought, "I'm Austrian. I speak
1 German. Nobody knows me. I will not show that I can
2 speak Serbo-Croatian, so I will show up. I will go
4 Q. Was this when you first met Mr. Delalic?
5 A. Yes. After awhile, there were speeches.
6 There were addresses by invitees, and after a number of
7 things, I finally met him.
8 Q. Did Mr. Delalic also address the invited
9 guests there?
10 A. At the opening, Mr. Simon Wiesenthal spoke,
11 and I was very glad when I saw it in the catalogue, and
12 I believe you may have the catalogue, first it was
13 Mr. Wiesenthal that mentioned that this was for peace
14 and against fascism. So Mr. Wiesenthal spoke, and then
15 the deputy minister -- I'm thinking in German, so give
16 me a moment, please, yes, Alois Mock, the deputy
17 foreign minister who is also a member of this club, as
18 well as a Mr. Simon Wiesenthal is also an honorary
19 member of this club. They talked about the suffering
20 of children in Bosnia. There was people there from
21 different humanitarian organisations, there was a press
22 conference. The whole cultural elite of Austria showed
23 up. The editor in chief of the Sarajevo newspaper,
24 Sergej Princip, who is a Serb, also spoke there.
25 Q. Did Mr. Delalic also speak?
1 A. Mr. Delalic interpreted. At that time, I,
2 actually, didn't know that this was Mr. Delalic. I
3 just saw a nice man, a bit corpulent. He was
4 interpreting. Afterwards, he spoke too. I can only
5 recall one small part. He said, "Why are we here?
6 They imposed unofficial borders to us, but the
7 humanitarian and the human heart are larger than all
8 these artificial borders, and we are here to prove that
9 we are all together."
10 Q. At this art opening, when you heard Delalic
11 speak, how did you experience Zejnil Delalic? What did
12 you think of him?
13 A. I pursue arts. I also pursue literature. A
14 foreigner cannot have such an accent, so I thought that
15 he was also a person with the similar heritage as I
16 had. I recognised a certain, kind of, humanitarian
17 attitude. I used to help the Jews from Russia and
18 placed them in different jobs in Austria. So I thought
19 that he was an Austrian too. There was a German
20 minority in Yugoslavia called Volksdeutscher, and I
21 asked him whether he belonged to that minority.
22 Q. After you met him, did you continue to see
23 and associate with Mr. Delalic? In other words, in
24 conversation with Mr. Delalic and other activists of
25 the BH association, did you all discuss your potential
1 involvement in this club?
2 A. As we started talking, they recognised me as
3 a football referee, and then they said, "We would like
4 to establish a sports association which would involve
5 football, volleyball, handball, basketball. Would you
6 want to get involved in this?" At first, I declined
7 it, but Ms. Zutka Delalic, and Mr. Dzemal Delalic, this
8 was a bit later, and Zejnil Delalic too, they said,
9 "You know the methodology, and you know the
10 education. You have education skills and you have a
11 Slavic background. Would you set up and conduct
12 language courses?" I agreed.
13 Q. How long did you conduct these courses?
14 A. About two and a half years.
15 Q. Were you trying to help all the refugees from
16 Bosnia and Herzegovina, regardless of their ethnic
17 background, or were these lectures geared only to the
19 A. I wouldn't have agreed to that. My students
20 were Bosniaks, Serbs, Croats from Bosnia, Serbs from
21 Serbia, the workers who work in the west.
22 Q. Do you know, Mr. Tomann, that this
23 association organised a number of humanitarian
24 activities to assist their population in
25 Bosnia-Herzegovina, and do you know whether Zejnil
1 Delalic also took an active part through contributions,
2 through suggestions, and in other ways?
3 A. Yes, I do know. Starting with that
4 exhibition, and I saw that there were people from all
5 over the former Yugoslavia. There was even
6 Mr. Bogdanovic, the mayor of the city of Belgrade, who
7 later came back to this club and held lectures. He is
8 well-known. He built a number of wartime memorials.
9 Unfortunately, I have to say, a number of these
10 monuments and now been destroyed.
11 Q. My question, Mr. Tomann, was whether Zejnil
12 Delalic also took an active part in all these
13 humanitarian activities?
14 A. Of course, yes, yes. We had an executive
15 board which met, and we had ideas and we made
16 agreements. However, Mr. Delalic lived in Munich at
17 the time, and we would invite him, and he would come
18 and he would take part, mostly as a sponsor, donor, and
19 in organisational matters.
20 Q. As a person who knows Mr. Zejnil Delalic, is
21 he a humane person?
22 A. Yes. That is my conviction.
23 Q. From reports that you received as a member of
24 the association, could you see that he frequently was
25 one of the instigators of these humanitarian
2 A. I will mention just a few. It was one that
3 concerned the sick and the wounded. Then it was one
4 for the electric power, utilities, then for schools.
5 My group was in charge of a collection of medicine and
6 clothing. All this was sent, and all this was posted.
7 It was all recorded who did what. Mr. Delalic gave the
8 largest individual financial contribution. We led the
9 whole thing, but he was one of us. He was not a leader
10 of it all.
11 Q. Can you tell me, did Zejnil Delalic, at any
12 point, either during the collection of humanitarian aid
13 or in organising any of the events showed any kind of
14 hostility towards the Serbian population, or did he
15 ever, for instance, insist that the aid should be sent
16 just to the Muslims, or was his attitude the opposite
17 of that?
18 Q. No, madam. Everybody used to come to this
19 club, and this is what this club will continue to do.
20 There are Bosniaks who have been in the west longer
21 than Mr. Delalic who only pursued their own interests,
22 and they sent their aid just to one side, but our aid
23 went to everyone, regardless of their ethnic
25 Q. Mr. Tomann, this cosmopolitan approach of
1 Mr. Delalic, was it something that was expressed also
2 through his sports activities where all Bosnian
3 citizens who were refugees in Austria were gathering
5 A. I am very proud, because I am a member of
6 this club, because this is the policy. At first,
7 Mr. Delalic was the president of this sports
8 association in Austria, but as he lived in Germany and
9 as the association grew, as more people kept coming, he
10 couldn't continue in that position any longer, so he
11 stepped down and he was given an honour position, a
12 position of an honorary head.
13 In our club, we are multi-national. We have
14 over 400 members. Out of them, 50 are of Serbian
15 ethnic background. There are some Macedonians who were
16 driven out of the Yugoslav league in Austria, so they
17 play with us. In Austria, there is a Yugoslav league
18 and a Croatian league, but in those leagues, in those
19 associations, no person of another ethnic background
20 ever plays.
21 Q. Very well. Mr. Tomann, can you tell me in
22 brief, throughout this period of your association with
23 Mr. Delalic through different activities in 1994 and
24 1995, what are your views of Mr. Delalic as a person?
25 A. I have many things in common with
1 Mr. Delalic. He's younger than I am, but we have the
2 same kind of upbringing. My mother gave me examples,
3 moral examples from Talmud, from the Koran, and from
4 the Bible. She told me to go to different neighbours
5 and associate with different people, so it was an
6 honour for us when the Muslims would invite us to
7 their religious holidays, and we would invite them back
8 to our holidays.
9 Another thing that I have in common with
10 Mr. Delalic is that he is well-versed in humanities, in
11 philosophy and literature. One of his favourite writers
12 is Isaac Bashivas-Singer, who is one of my own favourite
13 writers, also Hume, Carl Pauper, are his favourite
14 philosophers, just as they are mine. I saw him as a
15 person of high education.
16 Q. Mr. Tomann, do you think that Mr. Delalic
17 could harm anyone, the person that you met?
18 A. No. I am convinced that he could not.
19 Q. Mr. Tomann, the way you saw Mr. Delalic, was
20 he a person that could see somebody in trouble and
21 suffering and not help him?
22 A. From what I know about him, I don't think
23 that he could even hurt a fly.
24 Q. Mr. Tomann, knowing Mr. Zejnil Delalic as you
25 do, could you say whether Mr. Delalic could ever agree,
1 if he would agree with anyone who would harm others?
2 A. There were attempts, there were attempts to
3 break up our association, and unfortunately, it came
4 from Bosnia and Herzegovina. These attempts were made,
5 but we did not allow that. Mr. Zejnil Delalic was one
6 of the first, he and I both, and this whole leadership
7 did not allow this.
8 Q. Finally, Mr. Tomann, is it true that, upon
9 your arrival in The Hague, you gave me a catalogue of
10 this art exhibition where you first met Mr. Delalic and
11 where Mr. Delalic's words have been printed, as were
12 Mr. Simon Wiesenthal's. Did you give me this catalogue
13 as corroboration of your presence there?
14 A. Oh, yes. I think I forgot. Yes, I turned
15 this over to you.
16 MS. RESIDOVIC: Your Honours, we have made a
17 translation of the address of Mr. Wiesenthal and of
18 Mr. Zejnil Delalic, and these words speak of
19 Mr. Delalic's character. We have included it in our
20 motion, and the witness confirmed that he personally
21 submitted it to us and that he participated in this.
22 I, here, have the original of this catalogue, and I
23 tender it as an exhibit in evidence. Could you please
24 hand it over to Their Honours, even though this has
25 been enclosed within our motion.
1 This concludes my questioning of this
3 THE REGISTRAR: This is D204/1.
4 MS. RESIDOVIC: Is this admitted into
5 evidence, Your Honours?
6 JUDGE KARIBI-WHYTE: Let me look at it, if
7 there is any need for it. Let me see it.
8 MS. RESIDOVIC: We have already requested
9 translation into English. We are now submitting the
10 original, which was provided to us by this witness.
11 Inside, you will find the words addressed by
12 Mr. Delalic in 1994. The original text contains the
13 words of Mr. Delalic on the last page.
14 JUDGE KARIBI-WHYTE: Which of them are you
15 putting in? Here, the one I see, "Always together," I
16 think that is the one you have in mind, February 1994.
17 MS. RESIDOVIC: Yes. This is the whole
18 document. We have translated the words, that is the
19 speech of Mr. Wiesenthal, Mr. Orban, various artists
20 from different ethnic backgrounds who exhibited during
21 the show, as well as the words of Mr. Zejnil Delalic
22 who was one of the organisers of the show which clearly
23 show what kind of man he was, what kind of cosmopolitan
24 he was, even after he left the area of
1 JUDGE KARIBI-WHYTE: I suppose it's
2 associated with the publications, and this is what you
3 want to show, that he is associated with what happened
4 on that day.
5 MS. RESIDOVIC: Yes.
6 JUDGE KARIBI-WHYTE: You might well put it
8 MS. RESIDOVIC: Thank you, Your Honours.
9 This concludes my examination of this witness.
10 JUDGE KARIBI-WHYTE: Any examination of him?
11 Any examination of this witness?
12 MR. MORRISON: No thank you, Your Honour.
13 MR. KARABDIC: No questions, Your Honour.
14 MR. NIEMANN: No questions, Your Honour.
15 MS. BOLER: No questions, Your Honour.
16 JUDGE KARIBI-WHYTE: Thank you very much. I
17 think you are discharged.
18 THE WITNESS: Thank you.
19 (The witness withdrew)
20 JUDGE KARIBI-WHYTE: Who is your next
22 MS. RESIDOVIC: Yes, Your Honour. The
23 Defence calls Witness Darko Ruzic.
24 (The witness entered court)
25 THE WITNESS: I solemnly declare that I will
1 speak the truth, the whole truth, and nothing but the
3 JUDGE KARIBI-WHYTE: You may sit down,
5 WITNESS: DARKO RUZIC
6 Examined by Ms. Residovic:
7 Q. Good morning, sir.
8 A. Good morning.
9 Q. Sir, would you please introduce yourself to
10 the Court by stating your full name?
11 A. My name is Darko Ruzic.
12 Q. Mr. Ruzic, what is your ethnic background and
13 what is your nationality, citizenship?
14 A. I'm a Croat by nationality and I'm a national
15 of Bosnia and Herzegovina.
16 Q. What is your profession, Mr. Ruzic?
17 A. I completed technical college, and before
18 that, I completed vocational school and was trained as
19 a locksmith.
20 Q. Do you know Zejnil Delalic?
21 A. Yes, I do.
22 Q. When did you first meet Mr. Zejnil Delalic?
23 A. The first time I met Mr. Delalic was at the
24 beginning of August on the Igman platform.
25 Q. Mr. Ruzic, was that at the time when
1 Mr. Zejnil Delalic took over the duty of the commander
2 of the Tactical Group and came to Igman?
3 A. Yes. This was at the beginning of the action
4 whose objective was to lift the siege of Sarajevo. It
5 was the operation called JUG '92.
6 Q. What exactly did you do before the war?
7 Where did you work?
8 A. For about 20 years, I worked at the technical
9 institute which worked for the Yugoslav People's Army.
10 Q. What kind of job were you supposed to get at
11 the beginning of August when you saw Mr. Delalic on
12 Mount Igman?
13 A. I spent as an analyst of technical materials,
14 I spent some time working on that issue for about five
15 years. So I was involved with weapons, and I worked in
16 Zadar, Kalinovik, and other places in the former
17 Yugoslavia. I also worked as an inspector of weapons
18 for the JNA.
19 Q. Were you a member of the Territorial Defence,
20 and did you go to Mount Igman in that capacity, that
21 is, to take over a certain amount of artillery weapons?
22 A. Yes. I was a member of the Territorial
23 Defence before the aggression on Hadzici. I was also a
24 member of the Patriotic League. At the beginning of
25 the aggression, I went to the area of Pazaric which, at
1 that time, was the free territory in that area. At the
2 beginning, I worked with certain municipality bodies,
3 and I was also involved in preparations of the JUG '92
4 operation. I was supposed to take over a certain
5 amount of artillery weapons, that is, T-55, T-133
6 millimetre gun.
7 Q. In that capacity, you were deployed on the
8 main axis of the JUG '92 operation. The Court knows
9 quite a few things about that. I'm not going to go
10 into any details, but I would like to know whether you
11 provided support to Zejnil Delalic at one point, who
12 was the commander of the Tactical Group?
13 A. Yes. I was the commander of a battery, and I
14 had certain assignments in that respect. I know that
15 Mr. Zejnil Delalic was the commander of the Tactical
16 Group 1 in the place called Ormanj. Whenever the
17 Serbian artillery would open fire from Rakovica and the
18 neighbouring areas, we would use our gun, the so-called
19 Sultan, and we would often receive requests to provide
20 support and to return fire to the Serbian artillery.
21 Q. Yes. Thank you very much, but I'm not
22 interested in combat activities. We've been listening
23 about that for 18 months now. My question to you,
24 Mr. Ruzic, is whether you had an opportunity to meet,
25 to get to know Zejnil Delalic as a person throughout
1 that period of time?
2 A. Yes.
3 Q. Mr. Ruzic, what was Delalic's personal
4 attitude toward his fighters, to other combatants.
5 A. I had a very positive impression of
6 Mr. Zejnil Delalic, and it was an honour for me that
7 Zejnil Delalic, together with another friend of ours,
8 who had been a member of the JNA, to become members --
9 who became a member of the army of Bosnia-Herzegovina,
10 so it was an honour for me that Zejnil Delalic wanted
11 to spend some time on Bjelasnica with us, together with
12 a number of my superior officers and my soldiers. He
13 wanted to spend a few hours with us, and we gladly
14 shared the little food we had with him. So we would
15 sort of take some time off together whenever it was
16 possible to do so.
17 Q. You had quite a few informal encounters with
18 Mr. Delalic, in spite of the intensive fighting that
19 was going on at the time. Did you notice Mr. Delalic,
20 did you observe any different attitude by Mr. Delalic
21 in respect of you, who are a Croat?
22 A. At the beginning of the war, and even later
23 in 1992, 1993, as a member of the BH army, first a
24 member of the Territorial Defence, and then member of
25 the BH army, I never experienced any nationalistic
1 hatred. I never experienced that from Mr. Delalic, in
2 particular, who always wanted to spend some time in
3 friendly conversation with me and others. This was
4 never an issue with us. Even if we did discuss these
5 things, Mr. Delalic, as commander of the Tactical
6 Group, as someone who had a superior position, insisted
7 that we should adopt and behave in accordance with our
8 strict moral principles in that regard.
9 Q. Later on when you provided support to his
10 units, did you ever observe any kind of hostility
11 towards other people because they were of different
12 ethnic or religious background?
13 A. No, I never noticed that kind of behaviour.
14 Q. We all know that the war causes a lot of
15 misfortune. What kind of attitude did Zejnil Delalic
16 have towards his soldiers?
17 A. Zejnil Delalic, as a commander of the
18 Tactical Group 1 and who was a superior to me in the
19 chain of command, always paid attention to his men,
20 always took proper care of his men. He never allowed
21 any wounded soldier to be left behind, and he never
22 allowed us to behave differently.
23 Q. The weapon that you were in charge of, the
24 gun that you mentioned, is a large calibre gun, and
25 it's quite destructive. When you provided support to
1 Tactical Group 1, which was under the command of Zejnil
2 Delalic, did he, did Zejnil Delalic ever tell you, ever
3 warn you, as to the targets that should not be covered
4 by that heavy weapon?
5 A. Yes, but this was not something that we would
6 discuss during a military operation. During a military
7 operation, we knew exactly what our targets were.
8 However, outside combat, outside battle, when we would
9 discuss things in general, he would insist on that. He
10 bore in mind the fact that we did not have enough
11 weapons and ammunition, and he insisted on the fact
12 that we should only limit ourselves to military
13 targets. He was aware that this is something that we
14 could bank on after the war, after the victory.
15 Q. Mr. Ruzic, the Court is aware of the fact how
16 we were all hungry in 1992. However, do you know that
17 occasionally in Pazaric, where Zejnil Delalic had his
18 headquarters, do you know that members of Zejnil
19 Delalic's family would go there, would come there from
20 abroad, and bring you things which were so precious for
21 you at the time, like, canned food, cigarettes, and so
22 on. Are you familiar with that?
23 A. Yes. We all knew about that. It wasn't only
24 Zejnil Delalic, but there were also others who had
25 well-off families abroad and who would send us
1 equipment, cigarettes, food. I don't know the family
2 of Zejnil Delalic personally, and I didn't know them at
3 the time; however, it was common knowledge that Zejnil
4 Delalic, Ziam Civic who were not stationed at Igman
5 were the ones who provided food, cigarettes and other
6 necessities through their families. We knew that
7 whenever Zejnil would come, there would be more
8 cigarettes and food for us.
9 Q. Could it happen that Zejnil Delalic got a
10 large carton of cigarettes and keep them for himself?
11 A. No. We would all have them. We would all
12 share them.
13 Q. Could Zejnil Delalic smoke a pack of
14 cigarettes himself, or would he always share that one
15 pack of cigarettes that he had at the time?
16 A. Whenever he had a pack of cigarettes, it
17 would lie on the table. It was offered to everyone.
18 He would share his last cigarette with anyone.
19 Q. Mr. Ruzic, you were a member of the
20 Territorial Defence and, later on, a soldier in the
21 Bosnian army. Could you tell me, throughout the JUG
22 '92 operation, that is, August, September, October,
23 1992, what was the ethnic composition of Zejnil
24 Delalic's units? Was there a significant number of
25 Bosnian Serbs that were members of his unit?
1 A. As you could see from what I have said, there
2 was no nationalistic hostility among us, and the
3 composition of the Territorial Defence and, later on,
4 the composition of the army of Bosnia and Herzegovina,
5 was mixed. I used to say that the Bosnian army very
6 well represented the Bosnian country, Bosnia and
7 Herzegovina in general. It's an ethnically mixed
8 society. In my unit, I had people from various ethnic
9 backgrounds, and when it comes to the JUG '92
10 operation, I can tell you that, for example, the Zenica
11 Brigade supplied one battalion for the operation, and
12 there were over 30 per cent of Serbs in that battalion,
13 which is a higher percentage of Serbs. That does not
14 reflect, for example, the actual situation in Zenica.
15 Q. You have mentioned Cedo Domaz who lived in
16 the same residential block in Zenica. Are you talking
17 about a BH army soldier who was killed later on but was
18 declared a national hero after his death?
19 A. Yes. Cedo Domaz was a member of the
20 Patriotic League, and he came to Igman one month before
21 I did, and he became a legend. He was buried in
22 Brezovaca, and he received the so-called Golden Fleur
23 de Lys as this is the highest military decoration in
24 the BiH army.
25 Q. You said that there was a battalion in the
1 Zenica Brigade which has 30 per cent Serbs in it. Was
2 this a similar situation in the unit under the command
3 of Mr. Zejnil Delalic?
4 A. I'm not familiar with the precise hierarchy,
5 but in Ormanj, in the area of Ormanj, I know, because I
6 was involved with providing logistics support in that
7 area, I know that they also had the village of
8 Tvrdimici under their responsibility, and I provided
9 support to them as well. The battalion that first
10 completed the task and stopped in the village of
11 Tvrdimici, one day before we managed to arrive in
12 Stojcevac, I know that was the case with that unit.
13 Q. Do you know whether Zejnil Delalic had the
14 same kind of attitude towards all soldiers, and did he
15 retain that kind of attitude throughout your
17 A. I never had any doubts as to the behaviour
18 and attitude of Mr. Zejnil Delalic towards me and
19 towards other people he came in contact with. I simply
20 cannot accept the possibility that Zejnil Delalic would
21 behave differently somewhere else.
22 Q. To conclude, Mr. Ruzic, if you can just
23 briefly tell me, what was your view, what was your
24 idea, of Zejnil Delalic as a man? What can you say
25 about him as a man?
1 A. Well, since you ask me that question, I have
2 to add a few things. When I joined the Territorial
3 Defence and the BH army, and the first persons, in
4 general, who joined the Territorial Defence and the BH
5 army, they were the real Bosniaks like myself. They
6 were the people who wanted to prevent the aggression,
7 to prevent the war. Zejnil Delalic was one of the
8 persons who joined the Territorial Defence first,
9 together with other worthy Bosniaks. They were the
10 real Bosniaks. They were the real fighters.
11 Q. Did Zejnil Delalic, from the beginning of
12 August until the end of autumn, did he remain the
13 same? Did he remain humane? Did he remain a true
14 Bosniak, which, in our parts, implies religious and
15 national tolerance? Did he ever change?
16 A. My personal opinion is that, not only in that
17 period, but still today, these people, these fighters
18 think of Zejnil Delalic as a good person and as a true
20 Q. You don't know anything about Zejnil Delalic
21 from the period prior to August 1992. You don't know
22 anything about how he lived before, and you don't know
23 what happened to him after he left Bosnia and
24 Herzegovina; is that correct?
25 A. Yes, that is correct.
1 MS. RESIDOVIC: Thank you, Your Honours.
2 That concludes my examination of this witness.
3 JUDGE KARIBI-WHYTE: Any examination of this
5 MR. MORRISON: No questions for Mr. Mucic,
6 thank you.
7 MR. KARABDIC: No questions, Your Honours.
8 MS. BOLER: No questions, Your Honours.
9 MR. NIEMANN: Thank you, Your Honours.
10 Cross-examined by Mr. Niemann:
11 Q. Mr. Ruzic, did you ever work for Mr. Delalic
12 in and about the city of Konjic, or was it only up on
13 Mount Igman that you knew him?
14 A. I met him only at the beginning of August on
15 Mount Igman.
16 Q. That was the only place where you were in
17 contact with him?
18 A. Yes, the only place, because I spent a lot of
19 time on Mount Igman. I would stay there for two or
20 three months.
21 Q. Was there any particular reason why you
22 weren't a member of the HVO as opposed to the TO, the
23 Territorial Defence?
24 A. I was never a member of the HVO.
25 Q. I was wondering if there was any reason for
2 A. If you followed me closely, you could have
3 noticed that I said at the beginning, I said that all
4 Bosnians behaved the same. I lived in the area of
5 Hadzici. I wanted to be as close to home as possible,
6 and I was expelled from my home by Serbian soldiers.
7 Q. Do you ever recall, during the time that you
8 knew him, Mr. Delalic being referred to by a code name
9 or a military name?
10 A. No.
11 Q. You spoke of his attitude to people of
12 different ethnic groups. Did you ever observe or hear
13 him express his attitude towards the enemy when you
14 were engaged in military activities?
15 A. If I understand you correctly, no, never,
16 except when we would discuss things freely at my unit,
17 and the code of conduct of soldiers towards their
18 enemy. We didn't have any other conversations of that
19 kind. No, I never felt any attitude towards the enemy
20 expressed in that way.
21 Q. Did you ever hear him refer to the enemy by
22 names such as "Chetniks"?
23 A. No.
24 Q. What about prisoners of war, were you ever
25 able to hear him express his attitude about prisoners
1 of war?
2 A. No. As I told you, Mr. Zejnil Delalic would
3 only come during his free time, and his attitudes
4 towards prisoners of war, if he was the same, but I
5 don't know whether he had any contacts with prisoners
6 of war.
7 Q. Do you consider Mr. Delalic to be an honest
9 A. Yes, I do.
10 Q. Do you think that he would ever state untrue
11 things or exaggerate in order to protect himself?
12 A. No.
13 MR. NIEMANN: No further questions, Your
15 JUDGE KARIBI-WHYTE: Thank you very much. I
16 think you are discharged now.
17 THE WITNESS: Thank you.
18 (The witness withdrew)
19 MS. RESIDOVIC: Your Honour, this might be a
20 good time for a break. Do you want me to call my
21 witness after the break? This is the last witness for
22 the Defence.
23 JUDGE KARIBI-WHYTE: We will break now and
24 reassemble at noon. So you will call your witness
1 --- Recess taken at 11.28 a.m.
2 --- On resuming at 12.07 p.m.
3 MS. RESIDOVIC: Your Honours, before I call
4 our last witness, I promised you that I would provide
5 you with a copy of a translation of the Criminal Code
6 of Bosnia and Herzegovina. My office was able to
7 provide it, so I would like to submit it to you. This
8 is the integral text of the Criminal Code, which
9 Professor Tomic used when he testified. I have
10 provided copies for each one of Your Honours and for
11 the Prosecutor as well.
12 If I can ask the usher's assistance to
13 distribute the copies.
14 Also, my office in Sarajevo was able to find
15 the text of the Yugoslav Criminal Code, and we are
16 working on copying that, and I will provide that to
17 you. In this way, you will have all the pertinent
18 documents that were discussed through the witness
19 Professor Tomic.
20 JUDGE KARIBI-WHYTE: Thank you very much, Ms.
22 MS. RESIDOVIC: I believe it is not necessary
23 to have these exhibits marked, and my apologies for
24 interrupting you, Your Honour.
25 JUDGE KARIBI-WHYTE: Yes. We can have them
1 as they are. Kindly bring the witness in.
2 MS. RESIDOVIC: The next witness is Almina
4 (The witness entered court)
5 THE WITNESS: I solemnly declare that I will
6 speak the truth, the whole truth, and nothing but the
8 JUDGE KARIBI-WHYTE: Please take your seat.
9 WITNESS: ALMINA CILIC
10 Examined by Ms. Residovic:
11 Q. Good afternoon, madam. Would you please
12 introduce yourself to the Court by stating your full
14 A. Almina Cilic.
15 Q. Will you please tell us where you were born
16 and what is your ethnic background and your
18 A. I was born on 22 May, 1959 in Ostrozac in the
19 Jablanica municipality. I am a Bosniak by ethnic
20 background, and I'm a citizen of Bosnia-Herzegovina.
21 Q. What is your occupation?
22 A. I'm a graduate of law school.
23 Q. Ms. Cilic, are you related to Mr. Zejnil
25 A. Yes. Zejnil Delalic is my uncle. He is the
1 brother of my deceased father, Dzafer Delalic.
2 Q. Where does your family come from?
3 A. From Ostrozac in the Jablanica municipality.
4 Q. In Ostrozac, where both you and Mr. Delalic
5 were born, do people of different ethnic backgrounds
6 also live there, that is, Serbs, Muslims, and Croats?
7 A. Yes. The people of all ethnic backgrounds,
8 there were a lot of Serbs, and maybe just four Croatian
9 families, but our population was mixed, and we all live
10 well together.
11 Q. What was the economic status of the Delalic
13 A. Mr. Delalic or, I should say, my Uncle Zejnil
14 was born in a very poor family with nine children,
15 seven brothers and two sisters.
16 Q. Did the children from this family go to
17 school, and did Zejnil Delalic go to school,
19 A. Yes. All children went to school. The two
20 girls completed elementary school, and the boys
21 finished some secondary school, and Zejnil completed
22 high school and then college in Sarajevo.
23 Q. Could you tell us, Ms. Cilic, what your uncle
24 did after he graduated?
25 A. As far as I know, after he graduated, he
1 first was employed in the labour bureau in Sarajevo,
2 and after that, he went to Germany and started his own
3 successful business.
4 Q. As you said, he came from a very poor
5 family. You probably are not aware of his early
6 childhood or youth. You're much younger. After your
7 uncle became a successful businessman, did he forget
8 his parents?
9 A. No, not at all. He took great care of his
10 parents. He frequently visited them, not only during
11 his vacations, but at certain holidays. He always made
12 sure that they had medical assistance if they were
13 sick, and he also supported them financially so that
14 they did not lack anything. They had everything, and
15 he made sure that they did.
16 Q. Your Uncle Zejnil did not forget about his
17 parents. What about his relationship with his brothers
18 and sisters?
19 A. I know that he supported his brothers and
20 sisters. For instance, if they had a problem with
21 housing, he would contribute money to help finish the
22 house or buy an apartment. If they wanted to start a
23 business, they knew that they could rely on him, and
24 often times, they didn't need to specifically go to him
25 and ask him. He would find out and he would help them
1 on his own. So he really supported them consistently.
2 Q. Your aunts, Sefkija and Hajena, Zejnil's
3 sisters, both were widowed early. What was Zejnil's
4 relation to them and their children?
5 A. I think that he had a special relation to
6 them, because he was aware that they were widowed very
7 young. And also, the lost of a father is
8 irreplaceable, but he tried to, at least, make sure
9 that they did not have any financial problems, and,
10 indeed, he really helped them a lot.
11 Q. You said that Zejnil struggled to put himself
12 through school. Did he take care that his siblings'
13 children also received a good education?
14 A. Yes. There were quite a few children in our
15 family, and almost all of us have gone through school,
16 and I wanted to study, and he was very glad to hear
17 that I wanted to do so. He immediately asked if he
18 could help us financially, and my father did not have
19 much money, so an arrangement was made. I studied law,
20 and my brothers studied mechanical engineering, and he
21 would give us 200 German marks monthly throughout this
22 time. I have actually kept receipts from banks as a
23 kind of souvenir.
24 Q. This money which you kept receiving, and your
25 brother and maybe some other members of your family
1 too, over a period of four years, was this money the
2 only help that your uncle sent you in order to help you
3 get an education?
4 A. It was not the only help. He would also,
5 whenever he would come home, bring presents, different
6 kinds of presents. He took both myself and my brother
7 to Germany so that we would meet different people, so
8 that we would meet his friends. There were a lot of
9 people that we met, including Germans, so that we would
10 learn the language a little bit, so that we could
11 expand our horizons and learn another culture. So he
12 made it possible for us to do this.
13 Q. From the evidence that has been presented to
14 the Court so far, the Court knows that two of his
15 brothers died on the same day, and there were some
16 under-aged children who were left fatherless. How did
17 Zejnil treat those children?
18 A. In 1993, in a single day, two of my uncles
19 died, Sefik and Vesil, Sefik in Vienna, and Vesil in
20 Zagreb. One of them left behind a daughter, and Vesil
21 had two sons, and Zejnil provided all assistance that
22 he could so that the family would not be wanting
23 because of the loss of a father. So he helped them.
24 Q. Could you say that all of you in the family
25 who lost a parent, Zejnil helped to the extent that he
1 could in order for you not to feel the loss too much?
2 A. Yes. Because another uncle of mine, Rasim,
3 also died, and he helped his daughter as well.
4 Q. Does Zejnil Delalic have his own children?
5 A. Yes. Zejnil has a son and a daughter. The
6 son just graduated. We saw each other recently. He
7 graduated from the secondary medical school, and he is
8 now going to go on with his education. His daughter
9 Sandra is also putting herself through school studying
11 Q. Let me first ask you: Who is Zejnil
12 Delalic's wife?
13 A. Her name is Gordana and she was born in
15 Q. What is her ethnic background?
16 A. She is a Serb.
17 Q. When Zejnil Delalic married a Serbian woman
18 from Belgrade who came to live in Konjic, how did the
19 Delalic family receive Gordana?
20 A. Fine. There was no problem that she was
21 Serbian. Even though Zejnil's mother was a religious
22 person, she did not mind that she was of another
23 religious background, and she accepted her as her own
25 Q. Could you please say, as a member of the
1 family, who was supporting Zejnil Delalic's children
2 who lived with their mother in Belgrade until Zejnil
3 was brought here and detained?
4 A. It was Zejnil who supported them. He
5 provided for their living expenses, and they frequently
6 visited him during school vacations. He bought them a
7 wonderful house in Belgrade, and he supported them
8 financially, anything they needed. I know about this
9 because I talked about it with Mrs. Gordana. I saw her
10 recently. We talked about everything, including this.
11 Q. You know that Gordana Delalic, wife of Zejnil
12 Delalic, had a serious traffic accident and she is
13 unable to work. Who supported her before Zejnil was
15 A. Yes. She had a very serious traffic
16 accident, and she is still recovering from the
17 consequences of that. Right now, we are able to
18 provide enough money to Gordana and the children in
19 Belgrade so that they do not lack of what they need.
20 They are used to living rather well, and we are trying
21 to help them, and we will continue to do so.
22 Q. Ms. Cilic, even though Mr. Delalic's wife and
23 children live in Belgrade, have you ever heard Zejnil
24 Delalic speak badly about his wife, and did they
25 continue to maintain a decent relationship throughout
1 this period?
2 A. I have been with them a lot of times, but
3 he's a gentleman. I've never heard him say anything
4 bad. He always treated me in a gentlemanly manner, and
5 he also treated his wife in the same way. I think that
6 they continue to maintain relations. She has visited
7 him a number of times here. Now, I don't know all the
8 details about their private relations, but from
9 everything I know, from all the conversations I've had,
10 I think that she wouldn't be doing this had he treated
11 her badly.
12 Q. Do you know that she has visited him a number
13 of times, along with the children?
14 A. Yes. I know that they came a number of times
15 here in The Hague, both she and the children.
16 Q. You said that Zejnil Delalic is a person who
17 helped his immediate family and also helped his wider
18 family. Do you know, regarding this humane approach of
19 his, did he also help other people?
20 A. Yes. He helped quite a number of people down
21 there. He helped some financially. He helped somebody
22 find a job. He helped somebody open a private
23 business. He also supported cultural events, as well
24 as sports activities. He also contributed to schools
25 in providing teaching aids, equipment, and such.
1 Q. The Konjic municipality, which is where the
2 Delalic family comes from, was not a very rich
3 community, but people engaged in different types of
4 activities. Do you know whether your uncle helped
5 develop certain activities in your municipality before
6 the war?
7 A. I know that he specifically helped quite a
8 bit in Ostrozac. He was one of the founders of the
9 sports association and club, water sports association,
10 in particular. It was windsurfing equipment
11 and kayaks, and I don't know what else this equipment
12 is. He organised some regattas. It was a small
13 community, and without his financial support, I don't
14 think they would have been able to organise all these
16 Q. I know that you were not in Jablanica in
17 1992, but I know that you came back there later, even
18 though there were terrible rumours. People were saying
19 that he was a member of the Serbian Secret Service and
20 things like that. Do you know something about his life
21 after he left Bosnia?
22 A. Yes, I know. Even after he left, I know that
23 he supported people. I know that my mother went to
24 Germany in 1994, and he sent 10.000 German marks to
25 help provide flour in Ostrozac and distribute it among
1 the population. There were Serbs living there, and
2 even a few Croats, and this was distributed evenly to
3 everyone in Ostrozac.
4 Q. Zejnil was married to a Serbian woman from
5 Serbia, and there were other mixed marriages in your
6 family. How did your family view members of different
7 ethnic groups once they became members of your family?
8 A. Yes. There are other mixed marriages in my
9 family. My sister is married to a Serb and lives in
10 Belgrade. Another cousin is married to a Croat. This
11 is a normal thing, that people do not distinguish.
12 What was important was whether somebody was a good
14 Q. As a member of the close family, do you know
15 whether Zejnil Delalic ever engaged in politics?
16 A. As far as I know, he was interested in
17 business. He's, first of all, a businessperson. I'm
18 not aware of him engaging in politics, at least he
19 hasn't to my knowledge.
20 Q. A moment ago, Ms. Cilic, you said that as an
21 uncle, he also treated you as a gentleman. I want to
22 ask you whether he showed respect to all people, or did
23 he try to be above them?
24 A. No. I think that if anything, he would, sort
25 of, even take a step down so that people would feel
1 comfortable. You know, we're all the same, and for
2 him, every person was a worthwhile person. This is how
3 he treated everyone.
4 Q. Ms. Cilic, did your uncle show feelings
5 towards people?
6 A. Yes, very much so. Even though he is trying
7 to hide it a little bit, I know that he's a very
8 sensitive person, and I notice that very often.
9 Q. Did he ever put down other people?
10 A. No. I never noticed that.
11 Q. In so far as you know Mr. Delalic, could he
12 harm anyone?
13 A. No. He's not such a person. He always
14 sought to help people. It is a bit unusual for a
15 person to help people so much, but I felt that he took
16 pleasure from helping others.
17 Q. You say that he, himself, could not harm
18 anyone, but in so far as you know your uncle, do you
19 think that your uncle would accept or agree if somebody
20 else was doing harm to someone else?
21 A. I think that he would try to prevent it. I
22 know that if he was aware of it that he would try to
23 prevent it.
24 Q. Ms. Cilic, if someone were to ask you to give
25 a brief comment on your uncle, what would you say?
1 A. As a person with a strong character, a humane
2 person, a gentleman, a very highly educated person. I
3 also graduated from college, but I never knew as much
4 as he did about various areas of knowledge. Again, as
5 I said, also he is somebody who helps people, and I
6 really don't know anything negative that I could say
7 about him.
8 Q. Ms. Cilic, you are a member of the family,
9 and this is your perception of your uncle, but you also
10 move among other people. Have you ever noticed that
11 any of the people that you have come in touch with who
12 knew your uncle said anything bad about him?
13 A. There may be people who have something
14 against him, but all the people that I'm aware of
15 perceive him as I do. This is a small community, and
16 most people know him there, and they perceive him as a
17 humanitarian. Perhaps there are people who believe in
18 some kind of propaganda or something like that.
19 Q. Very well. Finally, Zejnil Delalic was
20 arrested in March of 1996. At that time, you were in
21 Jablanica. Can you tell me what the reaction was when
22 this news came?
23 A. The citizens of Jablanica were very
24 surprised. A number of them came to me and said, "How
25 can we help? He did not deserve it." We actually
1 expected that he would be awarded for what he had done,
2 rather than get arrested. Nobody still knows why this
3 has happened. Really, people wanted to help. It was
4 difficult for them, and they still, to date, approach
5 me and ask me how he is, how he is enduring all of
7 Q. My last question to you, Ms. Cilic: In fact,
8 you already said that your uncle was sending you money
9 for four years. This is your foreign currency account
10 which you have provided me.
11 MS. RESIDOVIC: Your Honours, I have tendered
12 a copy of this, and I'm not going to tender the
13 original booklet here. This concludes my examination
14 of this witness. Thank you.
15 JUDGE KARIBI-WHYTE: Thank you very much.
16 Any examination of this witness by any other counsel?
17 MR. MORRISON: No questions on behalf of
18 Mr. Mucic. Thank you.
19 MR. KARABDIC: No questions, Your Honours.
20 MS. BOLER: No questions, Your Honours.
21 MR. NIEMANN: No questions, Your Honours.
22 JUDGE KARIBI-WHYTE: This concludes your
23 witnesses for the --
24 MS. RESIDOVIC: Yes, Your Honour. We have
25 come to the end of our witness list, that is, character
1 witnesses, that we want to call for the purpose of the
2 sentencing hearing. Thank you very much.
3 JUDGE KARIBI-WHYTE: You are discharged now.
4 Thank you very much.
5 THE WITNESS: Thank you.
6 (The witness withdrew)
7 MR. MORAN: Your Honour, the Court has given
8 us permission to supplement with Mrs. Delic's
9 statement. We have a sick copying machine so all we
10 have is one copy. The Prosecutor has seen it and, I
11 believe, has no objection, and the Registry has agreed
12 to copy it and distribute it to the members of the
13 Tribunal. We would move to introduce this as the next
14 Delic number.
15 Secondly, we have previously provided the
16 Trial Chamber with copies of the English translation of
17 two statements. We have the original Bosnian, if the
18 Court would like them. If the Court doesn't want them,
19 whatever pleases the Court. One is from Mr. Delic's
20 father, and the other is from Salem Delic. Again, you
21 already have the English translations. Whatever
22 pleases the Court pleases me.
23 JUDGE KARIBI-WHYTE: As long as you've
24 submitted them, I think it's sufficient for that
1 MR. MORAN: Thank you, Your Honour. Instead
2 of cluttering the file with more paper, we will just
3 leave these. Thank you, Your Honour.
4 MS. BOLER: If Mr. Moran is finished, there's
5 a matter that I need to bring up before the Court, if
6 this is an appropriate time?
7 JUDGE KARIBI-WHYTE: Yes.
8 MS. BOLER: The Defence of Esad Landzo filed
9 a motion for acceptance of additional written
10 statements as evidence relevant to sentencing of Esad
11 Landzo. It was in my box this morning, but after
12 talking to my friend and colleague, Tom Moran, he had
13 not seen it as of shortly before -- as of an hour or so
14 ago. I also showed the motion to Teresa McHenry and to
15 Grant Niemann, and my understanding is they had not
16 seen it either. So I guess my first question is was
17 this in your boxes this morning? Have you had an
18 opportunity to see it?
19 JUDGE KARIBI-WHYTE: Yes. We've seen it.
20 MS. BOLER: Certainly, Tom has already told
21 me that he plans to object, but I would just like to
22 ask the Court that this be accepted into evidence based
23 on two Rules, Rule 84(A)(vi), presentation of evidence,
24 which states: "Any relevant information that may
25 assist the Trial Chamber in determining an appropriate
1 sentence, if the accused is found guilty on one or more
2 charges in the indictment."
3 The second relevant Rule is Rule 100,
4 pre-sentencing procedure, which states: "If the accused
5 pleads guilty or if the Trial Chamber finds the accused
6 guilty of a crime, the Prosecutor and the Defence may
7 submit any relevant information that may assist the
8 Trial Chamber in determining an appropriate sentence."
9 Clearly, the important words in both of those Rules are
10 "any relevant information that may assist the Trial
11 Chamber in determining an appropriate sentence."
12 As you can see from the motion, Mr. Jelisic
13 does not want to come back to court and testify again
14 to clear up the false impression that his last
15 statement clearly left. I understand that an article
16 was published yesterday in a Serb newspaper criticising
17 him for coming to court and testifying for a Muslim,
18 testifying for Esad Landzo. I would ask that since the
19 Court has shown flexibility all week long in admitting
20 written statements, even Mr. Delic's Defence finished
21 Tuesday and just offered a written statement which, of
22 course, he did have your permission, and I think
23 Mr. Mucic's Defence also mentioned that they were going
24 to be turning in some things, we would ask that the
25 Court accept our motion as well and enter that into
2 JUDGE KARIBI-WHYTE: Any objection on the
3 part of the Prosecution?
4 MS. McHENRY: Your Honour, we just received
5 it a few minutes ago. We're deferring to the Court as
6 to whether or not you believe it would be helpful or
8 MR. MORAN: Your Honour, I would just toss a
9 few thoughts out here. This man took the witness stand
10 and essentially shut down a cross-examination by
11 refusing to answer questions. Now to come back without
12 the ability for me or anyone else to cross-examine him,
13 it's a highly unusual procedure, to say the least.
14 I've never heard of such a thing. If this man wants to
15 answer questions, fine, then he can take the witness
16 stand and answer questions. If the Court decides or
17 someone else thinks that it's necessary to have some
18 protection for him, this Court is well familiar with
19 protecting witnesses from threats and other things.
20 But to testify and then refuse to be subjected to
21 cross-examination, and then to submit a written
22 statement that's uncross-examinable, to me, is
23 something I've never heard of before, either in a guilt
24 or a sentencing proceeding.
25 MS. BOLER: If I might just respond. It's
1 also a highly unusual procedure for a situation like we
2 had yesterday or the day before, where Mr. Delic spoke
3 directly to Esad Landzo. We objected. The Court
4 accepted that testimony, allowed that to happen, has
5 been very flexible all week long. I would simply ask,
6 in light of the fact that there's no objection from the
7 Prosecution and they are deferring to the Court, I
8 would just ask that the Court allow that to be admitted
9 in evidence.
10 JUDGE KARIBI-WHYTE: It will be admitted.
11 Actually, what weight do you attach to it yourself as
13 MS. BOLER: I believe you asked me what
14 weight I attached to that?
15 JUDGE KARIBI-WHYTE: Yes. What weight do you
16 attach to that type of testimony?
17 MS. BOLER: Well, my understanding is that
18 the Court will attach whatever weight -- as the trier
19 of fact, you will attach whatever weight you choose
21 JUDGE KARIBI-WHYTE: I suppose so.
22 MS. BOLER: I would just ask that we be given
23 the opportunity to, at least, present it --
24 JUDGE KARIBI-WHYTE: To say what he refused
25 to say when he was in the witness box.
1 MS. BOLER: Your Honour, I'll just tell you
2 that I was caught by surprise, as I think everybody
3 was. He did go home that night, back to the detention
4 centre, and wrote a statement which he gave to us the
5 next day. We had it translated the next day and filed
6 it as part of the motion.
7 JUDGE JAN: All that the witness said, the
8 gist of what he said, is he is a very nice man. He
9 entertains. He has no prejudices. That's all. That's
10 what you wanted him to say. He said that.
11 MS. BOLER: That's true.
12 JUDGE JAN: How does this statement help?
13 JUDGE KARIBI-WHYTE: No. What he now wants
14 to say is the question which arose when he refused to
15 lead his immunity. He wants that in.
16 MS. BOLER: Right. I do want that in.
17 Clearly, that's mitigation, and I ask that the Court
18 accept it --
19 JUDGE KARIBI-WHYTE: Why did he refuse to say
20 it under oath?
21 MS. BOLER: My understanding was -- well, as
22 I state it in the motion --
23 JUDGE KARIBI-WHYTE: That's not fair. That's
24 not fair, because if he refused to say it when he was
25 before the Trial Chamber, it would be unusual for him
1 to go away and then say it.
2 MS. BOLER: I agree with you that in this
3 case there have been lots of unusual things that have
4 happened in this case. I can see that you're leaning
5 toward not allowing me to admit that into evidence, and
6 I will ask that, again, since there's no objection from
7 the Prosecution --
8 JUDGE JAN: How does it further support his
9 statement? I've told you what the gist of his
10 statement is, and what he's said doesn't hurt Mr.
11 Moran's client. Why should he be objecting?
12 MR. MORAN: You're asking me, Your Honour?
13 Your Honour, the question was, "Were you told by
14 Mr. Landzo that he was going to get on the witness
15 stand and lie," and when he --
16 JUDGE JAN: You see the question of guilt and
17 innocence is not to be decided on the basis of these
18 statements. The statements will be taken into account
19 only when the question of the quantum of sentence is
20 being considered. If somebody wants to produce
21 evidence to say that he is a very nice man, that he has
22 no prejudices, that he is feeling very sorry, and it's
23 probably the leaders who got them into all of this is,
24 the point which you cited --
25 MR. MORAN: Your Honour, there will be one
1 thing that I will discuss in my final submissions, and
2 I'm going to ask you not to consider involving my
3 client with --
4 JUDGE JAN: But it doesn't involve your
5 client. The evidence with regard to sentencing is very
6 individual in the sense that everyone speaks for
8 MR. MORAN: Yes, Your Honour, and my client
9 spoke for himself --
10 JUDGE JAN: I have some doubts whether one
11 witness can be cross-examined by the other. It's very
13 MR. MORAN: Your Honours, in the procedures
14 that I'm used to when there are multiple defendants, if
15 it comes time for sentencing, the Court brings in the
16 first defendant and does what the Court's going to do,
17 and then brings in the next defendant. It's a totally
18 separate procedure.
19 JUDGE JAN: This is the usual course. In the
20 situation of a joint trial, it doesn't come in that
22 MR. MORAN: You're right. I've never been
23 involved in any proceeding quite like this sentencing
24 proceeding because of four defendants at the same time,
25 but the Court has handled it as well as --
1 JUDGE JAN: The Rule, as it is framed by us,
2 does envisage some sort of cross-examination by the
3 other counsel.
4 MR. MORAN: Yes, Your Honour.
5 JUDGE JAN: Otherwise, it's a personal effort
6 of every accused to show that he should not be given a
7 more severe sentence than would normally be awarded in
8 such cases.
9 MR. MORAN: Yes, Your Honour. I concur with
10 you completely. It's a time to bring in mitigating
11 evidence and aggravating evidence, where the
12 Prosecution wishes to show that someone is a bad
13 person, or I wish to show that someone's a good
14 person. It's the time to do that. It's also a time
15 for the Court to get to know defendants as people.
16 You've seen four people sitting here, four bodies, but
17 this is a chance for you to know who they are. I think
18 that is one of the more important things that this
19 proceeding has done.
20 JUDGE KARIBI-WHYTE: In the interests of the
21 credibility of your witness, I don't think you need to
22 pursue that motion. It's not necessary.
23 MS. BOLER: Did I understand you to say in
24 the interests of the credibility of --
25 JUDGE KARIBI-WHYTE: Yes. You do not need to
1 pursue that motion, because it's not coming in to be of
2 any assistance to what he has said before in other
4 MS. BOLER: I will ask that, even though that
5 may be true, based on what his testimony involved,
6 clearly, his hesitance to answer a question that, based
7 on the motion, you will see that he believed that that
8 was -- I've forgotten the word now that we used, but he
9 did not want any adverse reaction from any of the other
10 defendants. When he came here, that was not his
11 intent, to be critical of any of the other defendants,
12 but I believe that left a false impression, and I would
13 like to clear it up.
14 JUDGE JAN: When considering the charges
15 against your client, the Defence of your client was
16 that he committed some of these crimes under the
17 influence of Delic. When we consider that, whether
18 that statement can be relied upon or not when
19 considering his guilt, then that finding may have some
20 bearing on the question of sentence if he was acting
21 under influence. But this statement which he made,
22 this witness has nothing to do with it, but he wants
23 now to further explain it.
24 MS. BOLER: So you don't --
25 JUDGE JAN: Basically his statement --
1 JUDGE KARIBI-WHYTE: It's of no assistance.
2 JUDGE JAN: -- was that your client is a very
3 fine gentleman.
4 MS. BOLER: I'm sorry. Because you were both
5 speaking at the same time, I just didn't hear the first
6 part of your sentence, Judge.
7 JUDGE JAN: His evidence was that your client
8 is a very fine gentleman. He entertains. He looks
9 after things, socialises, has no prejudices.
10 MS. BOLER: The gist was also just to show
11 that they achieve some harmony in the prison between
12 the ethnic --
13 JUDGE JAN: How does this statement really
14 help his explanation?
15 MS. BOLER: Again, rather than so much
16 helping the things that you've just spoken to, in my
17 view, it leaves a false impression that weighs heavily
18 on my client's credibility. He is the only defendant
19 who took the stand and testified for two days, and I
20 would just hate for that one instance to profoundly
21 affect the way the Trial Chamber view his testimony.
22 JUDGE KARIBI-WHYTE: We've looked at the
23 sequence and the way this statement is now being
24 suggested to be admitted. It was denied. It was
25 refused, him claiming immunity. Then when he left, he
1 thought it over again, and now he wants it to come in
2 without cross-examination. He wants it to be admitted
3 without cross-examination, in which case it has no
4 effect on whatever he must have said and, thereby,
5 raises doubts on the question which was put to him.
6 MS. BOLER: Your Honours, it sounds like
7 you've listened to everything that I can say. If it's
8 not to be admitted into evidence, if that's your
9 decision, then that's your decision.
10 JUDGE JAN: It's unnecessary.
11 JUDGE KARIBI-WHYTE: I'm saying that even if
12 it was there, it's counterproductive and cannot be of
13 any use to me.
14 MS. BOLER: At the risk of asking the same
15 thing over and over and over, I will now sit down.
16 Thank you, Your Honour.
17 JUDGE KARIBI-WHYTE: Mr. Niemann, when are
18 you starting your address?
19 MR. NIEMANN: Well, we're ready to start,
20 Your Honour, but considering it's five minutes to
21 one -- in fact, my colleague Ms. McHenry will start,
22 and then I will follow after her presentation. We're
23 ready to commence now.
24 JUDGE KARIBI-WHYTE: All right. Utilise the
25 five minutes.
1 MR. NIEMANN: Your Honour, I make application
2 that we put it over. It's difficult to interrupt it
3 and --
4 JUDGE KARIBI-WHYTE: Because in any event --
5 you mean you want a full one hour.
6 MR. NIEMANN: No. As I said yesterday, it
7 will take longer than an hour. I said when we made our
8 original submissions to Your Honours, we said that we
9 wanted half a day last Monday --
10 JUDGE KARIBI-WHYTE: For summarising what has
12 MR. NIEMANN: No. We've never had an
13 opportunity to address the Defence's submissions, and
14 we need to do that, to make our oral submissions as a
15 consequence of the submissions they've made. We've
16 never had that opportunity. They had that opportunity
17 because they received ours first.
18 JUDGE KARIBI-WHYTE: In spite of your
19 submissions, you still have extensive submissions to
21 MR. NIEMANN: There is no way, in our
22 submissions, could we anticipate what they put in their
23 submissions which we received after we had filed ours.
24 Their submissions were written with the benefit of
25 having our submissions available.
1 JUDGE KARIBI-WHYTE: Well, I don't know. It
2 might be understanding the philosophy of punishment and
3 sentencing, which is one thing, but it doesn't have to
4 be as extensive as that. Whatever aggravation or
5 whatever mitigation you have might have been out of the
6 proceedings we've already heard.
7 MR. NIEMANN: Your Honours, we've sat here
8 all week without having any submissions at all, and we
9 haven't responded to their submissions. I mean, surely
10 the Prosecution is going to be given an opportunity to
11 respond to their written submissions. We could have
12 done it in writing, if Your Honours had so ordered, but
13 we understood it to be done by way of oral
15 JUDGE KARIBI-WHYTE: Yes. You may well
17 MS. McHENRY: Did I understand, Your Honour,
18 that you would like me to start now?
19 JUDGE KARIBI-WHYTE: Yes. I would like you
20 to start.
21 JUDGE JAN: I know you know what you're
22 doing, but I'm just saying it, please don't touch on
23 the merits of the case.
24 MS. McHENRY: No, Your Honour. We did not
25 intend to touch on the merits of the case. I don't
1 believe --
2 JUDGE JAN: Still, I thought I would say so.
3 MS. McHENRY: Thank you. Your Honour, we're
4 also not intending to repeat what was said in our
5 written submission. What we would like to do is just
6 emphasise a couple of points and, in particular, to
7 respond to certain points made by the Defence in their
8 written submission and then throughout this week in
9 their oral presentations.
10 I will speak about the two accused who made
11 their presentations first, Mr. Landzo and Mr. Delic,
12 and then Mr. Niemann will speak about Mr. Mucic and
13 Mr. Delalic.
14 I would note that systems differ as to
15 whether the Prosecution is expected to give a
16 recommendation to the Judges about its view of the
17 proper sentence for a particular accused. In some
18 systems, it is not considered appropriate to do so,
19 while in other systems, it is customary to do so and,
20 indeed, it would be considered inappropriate not to
21 give a recommendation.
22 For a variety of different reasons, the
23 Prosecutor Justice Arbour has adopted the policy of
24 giving a sentence recommendation and, thus, in every
25 case before this Tribunal and the Rwanda Tribunal, the
1 Prosecution has given its recommendation. Consistent
2 with this policy, it would be our intention to give
3 Your Honours our view as to a recommended sentence,
4 unless we are directed to --
5 THE INTERPRETER: Could the counsel please
6 slow down?
7 MS. McHENRY: -- unless we are directed not
8 to do so by Your Honours.
9 Obviously, the Defence has presented material
10 and evidence from families and friends of the accused
11 to the effect that the witness considers each of the
12 accused to be a nice person. Indeed, it would be rare
13 for an accused not to have family members or friends
14 who think that and probably in every case before this
15 Tribunal, there would be some evidence. The
16 Prosecution does not, in fact, contest that the accused
17 have persons would care for them and have seen them to
18 be nice persons.
19 However, these and similar other facts raised
20 in this case, although relevant, are of limited
21 weight. For not only are these facts not unusual, more
22 importantly in this case, they are not ones that would
23 entitle the accused to a significantly lower sentence.
24 The most important facts, as pointed out in our brief
25 with citations, and I believe that Judge Karibi-Whyte
1 has alluded to this several times, the most important
2 considerations for sentencing are those that are
3 already presented during the trial. They are the
4 factors that relate to the crimes for which the accused
5 will have been convicted, including the gravity of the
6 offence and the accused's role in these crimes.
7 Your Honours have heard about the gravity of
8 the offences, and you have heard for how, over seven
9 months, persons were imprisoned in Celebici, many of
10 whom, most of whom, should never have been imprisoned
11 at all, much less for months on end, and how they were
12 treated. I won't repeat the evidence. I can't even
13 repeat all of it. I would just ask, when finally
14 deciding on a sentence, that you think about and
15 remember the hundreds of victims of the Celebici camp,
16 that you think about what their lives were like, how a
17 large number of them did not survive, and how even
18 those who did survive will be scarred, physically or
19 emotionally or both, for the rest of their lives.
20 As found by the Chamber in the Kambanda case
21 in the Rwanda Tribunal, sentences should reflect the
22 predominant standard of proportionality between the
23 gravity of the offence and the degree of responsibility
24 of the offender. As also noted in that decision, fair
25 sentences contribute to the respect for the law and the
1 maintenance of a just and peaceful society. This
2 Tribunal is only concerned with serious violations of
3 international humanitarian law. It is expected that
4 the majority of sentences here, as opposed to national
5 systems which deal predominantly with less severe
6 crimes, will be severe. Indeed, in cases with
7 significant loss of life, it should not be surprising
8 if the majority of the sentences imposed by this
9 Tribunal are the most severe possible.
10 In this case, the Celebici case, the gravity
11 of the offences committed by the accused and the degree
12 of responsibility attended to each defendant are high.
13 The crimes carry an intrinsic gravity, and their
14 atrocious, cruel, and repetitive nature is shocking to
15 the human conscience. Given this, unduly light
16 sentences would be contrary to justice and the
17 fundamental purpose of this Tribunal.
18 As I said, we're going to go through the
19 accused individually, and I'll start with Mr. Landzo.
20 Mr. Landzo was a guard in the camp for a number of
21 months. Mr. Landzo acted as a cruel and sadistic guard
22 who took every opportunity to use his power to horribly
23 mistreat the detainees. Sometimes he did it because he
24 was ordered to do so, and sometimes he did it on his
25 own initiative.
1 Mr. Landzo has made a number of different
2 arguments in favour of mitigation and ultimately
3 requested a five-year sentence. With all due respect
4 to Mr. Landzo and his counsel, the Prosecution must
5 begin its submission by stating that the recommendation
6 of five years and, indeed, many of the arguments made
7 by the Landzo Defence are, in our submission,
8 ludicrous. Normally, we don't like to use such
9 characterisations, but in this case, we feel it is
10 necessary. I will address the points raised by the
11 Landzo Defence in, more or less, the same order that
12 they were raised in their written submission.
13 The Defence first suggested that the accused
14 Landzo, and I believe Mr. Delic has made a similar
15 suggestion, turned themselves in. This is not a full
16 and accurate characterisation of what happened, as the
17 records of this Tribunal demonstrate. Mr. Landzo and
18 Mr. Delic were indicted by this Tribunal. The
19 indictment was public, and the indictments received a
20 reasonable amount of publicity, including in Konjic
21 where the accused were located.
22 The accused did not turn themselves in to any
23 international authority. Rather, the accused,
24 Mr. Landzo, at least, gave interviews to the press
25 talking about the indictment and the fact he knew about
1 it, but they did not turn themselves in. Initially,
2 there were no steps taken to arrest them by the Bosnian
3 authorities, and after some weeks, I believe over a
4 month, when the accused had neither turned themselves
5 in, nor been arrested, the Prosecutor personally
6 intervened at the highest levels, and the authorities
7 of Bosnia-Herzegovina initiated action.
8 We don't know how exactly the Bosnian
9 authorities got custody of the accused and, thus, we
10 are not in a position to contest any representations
11 that they were directed by their local authorities to
12 report to the police and that they did so. We can
13 state categorically, however, that the accused, both
14 Mr. Landzo and Mr. Delic, fought then their surrender
15 to The Hague. Indeed, it was only after some time,
16 after their challenges to their extradition or
17 surrender were ultimately rejected by the Bosnian
18 Supreme Court, that the accused were forcibly
19 surrendered to this Tribunal.
20 When the accused, Mr. Landzo and Mr. Delic,
21 report that they spent 43 days in gaol in Sarajevo,
22 that's not because the Tribunal or international
23 authorities were slow in transporting them. It's
24 because the accused challenged their extradition, and
25 it took some time to work its way through the courts.
1 In circumstances where an accused has fought
2 his surrender to the Tribunal, we believe that there
3 can be no legitimate claim that an accused deserves
4 some sort of credit for turning himself in. We would
5 note that the facts, including that there were
6 challenges by the accused to their extradition, are
7 noted in a number of court documents from
8 Bosnia-Herzegovina. Some of those ones which
9 specifically reference the objections made by the
10 accused are part of this Tribunal's record. If there's
11 any question, we would refer Your Honours to the
12 registry record for this case, including documents 337,
13 1337 bis, and 2337 bis. There are other documents, but
14 I believe those state it.
15 The accused, Mr. Landzo, then argues that he
16 should get some kind of credit for an admission of
17 guilt, in attempts to compare this case with that of
18 Mr. Erdemovic, before this Tribunal. We believe there
19 can be no comparison. In the Erdemovic case, the
20 accused had not been indicted by this Tribunal.
21 Indeed, the accused was not under investigation, and
22 the Prosecution was not even aware of the specific
23 incidents in which Mr. Erdemovic was involved.
24 Mr. Erdemovic informed the Prosecution about the crimes
25 he had been involved in. He cooperated fully,
1 including giving truthful statements from the
2 beginning, and he pled guilty immediately. There was
3 no trial, saving a tremendous amount of expenditure of
4 resources and not putting witnesses through the
5 traumatic experience of testifying at trial.
6 Of course, that is not the case here. Here,
7 we are here almost two and a half years after
8 Mr. Landzo was indicted, after a lengthy trial of
9 almost one and a half years, which entailed significant
10 expenditure of resources and significant trauma to the
11 witnesses. Mr. Landzo still has never pled guilty to
12 anything. The Prosecution fails to see how he can
13 claim credit for admitting guilt when, in fact, he has
14 not admitted his guilt. Indeed, you saw even this
15 week, when the Prosecution referred to crimes committed
16 by Mr. Landzo, the Defence objected and said that we
17 were required to use the term "alleged crimes."
18 The Defence then claims that Mr. Landzo acted
19 under superior orders, and the Prosecution does agree
20 that the evidence established that sometimes Mr. Landzo
21 was acting under orders. We emphasise that in speaking
22 of the evidence, we are including the evidence of the
23 victims, who saw and heard when Mr. Landzo and other
24 guards were sometimes ordered to mistreat victims. We
25 are not relying solely on any uncorroberated testimony
1 of Mr. Landzo.
2 We believe that sometimes he was acting under
3 orders, and this can sometimes be a relevant factor.
4 The Prosecution believes, though, that under the
5 circumstances of this case, this factor does not
6 warrant a significantly reduced sentence, and we would
7 note that there is no evidence of duress here. Indeed,
8 the accused expressed no hesitation and, indeed,
9 reported that he enjoyed carrying out his orders.
10 Further, of course, on multiple occasions, Mr. Landzo
11 acted out any superior orders whatsoever.
12 The Defence next attempts to claim some sort
13 of credit for an attempt to cooperate. We find this
14 also unbelievable. We would first note that although
15 the details are not important, the Prosecution, in its
16 written submission, has accurately reported the one
17 plea discussion that occurred between the Defence and
18 the Prosecution. The events were independently
19 remembered by both Mr. Niemann and myself, and they
20 were the subject of a detailed memorandum to the file
21 at the time.
22 In any event, the main fact, and really the
23 only important fact, is not in dispute, and that is
24 that the accused approached the Prosecution about a
25 potential plea, and there was no agreement for reasons
1 including that the Prosecution was unwilling to
2 contemplate recommending a sentence of five years
3 because, in the view of the Prosecution, that would
4 represent a travesty of justice.
5 It's clear that the Defence did not approach
6 the Prosecution just because the accused wanted to
7 accept responsibility or as a sign of genuine remorse
8 or to aid the truth-finding process or the attainment
9 of justice. No. The accused made the strategic
10 decision that it might be in Landzo's best interest to
11 have a plea agreement if it was extremely, extremely
12 generous. The Defence could not get the agreement they
13 wanted, and they chose not to cooperate or plead
15 We don't criticise Mr. Landzo for wanting to
16 explore what was in his best interest, but the idea
17 that by making an exploration, he's entitled to some
18 sort of mitigation for cooperation, we think is
19 unbelievable and must be rejected. The Prosecution
20 states unequivocally that the accused has not
21 cooperated with the Prosecution.
22 Does Your Honour want me to continue or break
23 now? I saw you looking at the clock.
24 JUDGE KARIBI-WHYTE: We will break now and
25 come back at 2.30.
1 MS. McHENRY: Thank you.
2 --- Luncheon recess taken at 1.13 p.m.
1 --- On resuming at 2.37 p.m.
2 MS. RESIDOVIC: Your Honours, I just wanted
3 to make good on the second part of my promise. We
4 received copies of the Yugoslav Criminal Code, and I
5 would like to ask the usher's assistance to distribute
6 it to you. I apologise for, perhaps, a bad copy. It
7 was due to the fact that we received it via fax, but
8 now you have the complete texts of both legislations
9 for your consideration. Thank you.
10 JUDGE KARIBI-WHYTE: Thank you very much. I
11 think we can now listen to Ms. McHenry.
12 MS. McHENRY: Thank you, Your Honour. I will
13 just continue with our submission and now discuss the
14 general issue of Mr. Landzo's mental health. The
15 Prosecution has always agreed that this issue is one
16 that is relevant to sentencing, and the Prosecution has
17 accepted that Mr. Landzo has certain personality
18 problems. Indeed, we've suggested from the beginning
19 that this is obvious to anyone who knew anything about
20 his crimes.
21 We suggest, however, that many persons, if
22 not most persons, who commit horrific crimes, such as
23 those committed by Mr. Landzo, have personality
24 difficulties. We do not believe that the circumstances
25 as a whole concerning Mr. Landzo's mental health
1 warrant a significantly reduced sentence. Among other
2 things, we would point out the long period of time over
3 which the crimes occurred in the evidence demonstrating
4 that he had the ability to understand what he was doing
5 was wrong, and he had the full ability to control his
6 actions. Indeed, among other things, we point to the
7 evidence that he frequently initiated mistreatment as
8 evidence that his actions were fully voluntary.
9 During the oral submissions, we heard more
10 evidence from yet another mental health expert. In
11 reviewing his testimony and the testimony of the other
12 mental health experts, I was struck by something I read
13 in Defence Exhibit 90/4, page 297, which is just an
14 article summarising some of what's said about forensic
15 psychiatry, and quoting Dr. Resnik, who indicated that
16 there were five major criticisms made of expert mental
17 health testimony in criminal trials. They were five
18 major criticisms, four of which were that the
19 psychiatrists always disagree, that they speak in
20 jargon-ridden and subjective testimony, that they
21 attempt to dictate the law, and that they give
22 conclusive opinions.
23 The first and, we would suggest, the major
24 criticism is that psychiatrists excuse sin, and we
25 suggest that that is what is attempting to go on here.
1 Every criminal who exhibits sadistic behaviour, such as
2 that exhibited by Mr. Landzo, has problems. Indeed,
3 when Mr. Delic used his electrical device to shock and
4 burn prisoners and laughed while doing so while they
5 begged for mercy, that's also sadistic behaviour.
6 Indeed, one can legitimately argue that when Mr. Mucic
7 amused himself for hours on end by humiliating retarded
8 prisoners, by make them praise Allah, or give details
9 about sexual activities, or dress up as a woman, these
10 are forms of sadistic behaviour, albeit of a lesser
12 But any explanation of why Mr. Landzo or any
13 other criminal did what they did, be it dependency or
14 narcissism or transferred aggression, maybe can explain
15 it, but it certainly doesn't excuse it or, in these
16 circumstances, significantly reduce the appropriate
17 punishment. These are just labels. The issue is,
18 could Mr. Landzo understand and control what he was
19 doing? The Prosecution submits that the evidence shows
20 he was in full control of himself, and he did what he
21 wanted to do. He did what was in his interest to do at
22 the time. He chose what to do in Celebici, and he's
23 choosing what he does today, which is to try to
24 manipulate the Court's process to his advantage. But
25 the fact remains, as Mr. Landzo himself recognises at
1 various times, that he needs to be appropriately
2 punished for his horrible crimes.
3 What did, in fact, Dr. Goreta add? Of
4 course, his opinion was preliminary, and he relied, in
5 large part, on the opinions of others, which may be one
6 reason why he didn't differ continually, but they
7 indicated, among other things, that Mr. Landzo could
8 easily choose, for his next role model, a bad person.
9 Dr. Goreta's evidence also indicates that he
10 is very inclined to give recommendations of diminished
11 mental responsibility. Indeed, when asked to review 25
12 of the most serious cases of war crimes in his own
13 country, he found diminished responsibility in every
14 single one. We would ask that you consider that when
15 you're evaluating his testimony.
16 We note, of course, in the former Yugoslavia,
17 abuse of drugs and alcohol can be a basis of diminished
18 responsibility, and there is evidence that Mr. Landzo
19 voluntarily chose to abuse drugs and alcohol when he
20 was in Celebici. But in almost every country, and we
21 would certainly suggest in this Tribunal, because the
22 taking of such substances are voluntary, they are not
23 used as any kind of basis for diminished
24 responsibility. We certainly suggest that Your Honours
25 should not allow that here.
1 Of course, as Dr. Goreta pointed out when he
2 was asked about his tendency to find diminished
3 responsibility, he said, "Well, this is just my
4 recommendation. The courts in Yugoslavia do not have
5 to accept it." In fact, we don't know how many times
6 it was accepted, but certainly before this Tribunal,
7 this Court does not have to substitute the judgement of
8 a psychiatrist for its own judgement, and we would
9 suggest, based on the evidence as a whole and common
10 sense, there is no reason to significantly reduce
11 Mr. Landzo's sentence because of any mental health
13 The Defence then goes on, I think, related at
14 another portion of their brief to claim that Mr. Landzo
15 has been rehabilitated. This is, in our submission,
16 also unbelievable in all senses of the word. The
17 Defence has presented much evidence that Mr. Landzo has
18 long-standing problems, problems and, indeed, a
19 tendency, and that he did engage in violent behaviour,
20 both before and after he was in Celebici. Given the
21 fact that one can't control what he does out in
22 society, we would certainly suggest he remains a
24 Similarly, apparently, as part of his
25 rehabilitation, the Defence now tries to claim that
1 Mr. Landzo is remorseful, but we ask you to consider
2 what actual evidence of remorse is there and when and
3 under what circumstances has it come about? Mr. Landzo
4 has said in his statement that he wants to apologise to
5 the victims, but, of course, a number of the victims
6 were here, and there was no attempt to apologise. In
7 fact, the Defence attacked the witnesses. In fact,
8 Mr. Landzo himself threatened a witness. When
9 Mr. Landzo testified that he tried to get money from
10 his attorney, that wasn't money for the victims of his
11 crime, that wasn't money for the families of the people
12 he killed who now have no means of livelihood, that was
13 money for Mr. Landzo and his own people.
14 When he testified, was there evidence of
15 genuine remorse? We suggest that there was absolutely
16 none. It appears that this remorse has just appeared
17 after the presentation of the Defence and after his
18 testimony and only in connection with his sentencing
19 proceedings. We suggest that Mr. Landzo's expressions
20 of remorse in which he says, "I am remorseful," is yet
21 another straightforward attempt to manipulate events to
22 his own advantage.
23 We also suggest that in evaluating his
24 rehabilitation, his remorse, his wanting to take
25 responsibility for what he's done, we look closely at
1 his written statement in which he describes much of his
2 life in great detail, except when you get to the part
3 about Celebici, and he says, "I did what I could to
4 protect my country and no one is perfect." The
5 Prosecution submitted it's unbelievable that someone
6 who, for months on end, killed or tortured or sexual
7 assaulted people --
8 MS. BOLER: I'm going to object. I suggest
9 there's not been any evidence of sexual assault --
10 JUDGE KARIBI-WHYTE: Let's hear your
12 MS. McHENRY: In respectful submission of the
13 Prosecution, Mr. Landzo, who has admitted that he
14 forced brothers to commit fellatio with each other
15 would certainly be encompassed as sexual assault. When
16 asked about his conduct or when describing his conduct,
17 all he can say is, "Well, no one is perfect."
18 Continuing with the Defence submission, the
19 Defence then asked that whatever sentence that
20 Mr. Landzo gets, he should get credit for the time he
21 served in Bosnia for what is referred to here as the
22 Bubulo case. This is, frankly, also ludicrous.
23 Mr. Landzo wants credit for time served for another
24 murder that he committed which isn't even charged here
25 or part of this case. The Defence then suggests, in
1 their written submissions, that Mr. Landzo has been the
2 victim of selective prosecution. I believe that as
3 Your Honours have already noted, this is not a matter
4 for this Chamber, much less a sentencing matter, but I
5 must go further and suggest that this argument is not
6 only unbelievable and unsupported, it's offensive, as
7 is the idea that his crimes are not serious enough to
8 be before this Tribunal.
9 Mr. Landzo's final argument in their written
10 submissions is that his sentence should reflect only
11 his mistreatment of eight detainees. This is
12 ridiculous, it's undisputed, even by Mr. Landzo that he
13 mistreated, in horrible ways, many, many, detainees.
14 Indeed, it would be impossible for any indictment to
15 include, individually, every single act of mistreatment
16 committed by Mr. Landzo in the Celebici camp. There
17 are just too many. Even he --
18 MS. BOLER: Your Honour, I'm going to object
19 again --
20 JUDGE KARIBI-WHYTE: What type of argument is
21 it? Why don't you let her make her argument?
22 Everything that has been said is the evidence which is
23 before the Trial Chamber, and you keep objecting to
24 what has been said in the Trial Chamber.
25 MS. McHENRY: There are just too many acts of
1 mistreatment to describe individually. The indictment
2 specifically charges Mr. Landzo with inhumane
3 conditions, including the creation of an atmosphere of
4 terror created by his numerous acts of mistreatment.
5 His sentence for the count of inhumane conditions
6 should reflect the enormity of what he did to the
7 detainees in the camp. Indeed, even if this were the
8 only charge in the indictment, in view of the
9 Prosecution, Mr. Landzo would deserve a life sentence.
10 In sum, Your Honours, under all the
11 circumstances, including the number of persons
12 personally killed by Mr. Landzo, the number of persons
13 personally tortured by Mr. Landzo, and the hundreds of
14 persons who are subjected to various forms of
15 mistreatment, including living for months in an
16 atmosphere of terror, the Prosecution believes that
17 Mr. Landzo should receive a life sentence.
18 The Prosecution also suggests, for the
19 reasons articulated in detail in the Tadic judgement,
20 which I will not describe in detail, that Your Honours
21 give a recommendation concerning the minimum amount of
22 years that an accused should serve. We submit that
23 Your Honours should recommend that under no
24 circumstances should Mr. Landzo be released in less
25 than 25 years.
1 Let me now, please, turn to Mr. Delic. My
2 argument on Mr. Delic will be shorter, not because his
3 conduct is less serious, to the contrary, but because
4 his arguments are fewer and generally are not arguments
5 of mitigation, but are, generally, legal arguments that
6 have previously been rejected before this Tribunal.
7 Mr. Delic's first argument is that any
8 sentence more than 15 years is illegal and a violation
9 of the nullen crimin principle. We would first point
10 out that given the former Yugoslavia had the death
11 penalty, any lesser sentence, including life
12 imprisonment, cannot be a violation of nullen crimen.
13 Further, in Erdemovic 1, the Erdemovic Chamber
14 expressly considered the nullen crimen argument and
15 rejected it. Although it's not binding on this Court,
16 there is nothing in the appellate decision or the
17 subsequent Erdemovic judgement to cast doubt on the
18 reasoning. Finally, we would note that the Tadic
19 Chamber implicitly rejected this argument in sentencing
20 Mr. Tadic to greater than 15 years.
21 Mr. Delic, as part of this, has made a number
22 of arguments concerning the sentencing in the former
23 Yugoslavia and, indeed, I believe we had pretty much a
24 whole day of testimony on this. As stated in its
25 submission, the Prosecution believes that of other
1 Chambers in this Tribunal and the Rwanda Tribunal have
2 found, the practice in the former Yugoslavia is not
3 binding upon this Chamber in any event, and there are a
4 number of reasons for this. One, as found by the Tadic
5 and Erdemovic Chambers, the main goals of punishment
6 may differ in International Tribunals. Another problem
7 is determining what the practice is. The Tadic Chamber
8 received reports in evidence, which we believe Your
9 Honours can take judicial notice of, concerning the
10 details of the practice in the former Yugoslavia. In
11 some respect, those details differ from that presented
12 by Mr. Tomic, but we would suggest, in any event, it's
13 not the details that are important.
14 Certainly, it is clear that in war crimes and
15 other serious crimes, including homicides such as
16 occurred in Celebici --
17 JUDGE JAN: Just a minute. I was reading in
18 Article 24 -- I was looking at Article 24, clause 1, in
19 determining the term of imprisonment, the Trial Chamber
20 shall have recourse to the general practice regarding
21 prison sentences in the courts of the former
23 MS. McHENRY: Yes, Your Honour.
24 JUDGE JAN: To have recourse. You must look
25 at that.
1 MS. McHENRY: Yes, Your Honour. We have
2 always said and we said in our written submission, and
3 I believe all the Chambers before this Tribunal and the
4 Rwanda Tribunal have had recourse, meaning to look to
5 for guidance, but have stated that it is not binding,
6 that it may be instructive.
7 JUDGE KARIBI-WHYTE: I think that is meant as
8 having a recourse, as in resorting to, referring to.
9 MS. McHENRY: Yes, Your Honour. We believe
10 that it may be a reference and that it may be a guide.
11 Let me just try to find the quote, on pages 5 and 6 of
12 our written submission, among other things, in the
13 first Erdemovic decision, the Court found: "The Trial
14 Chamber considers that the reference to this
15 practice," the practice in the former Yugoslavia, "Can
16 be used for guidance but is not binding."
17 JUDGE JAN: Just thinking out loud, I thought
18 when it said "recourse" that it means more than
19 guidance. Isn't it so?
20 MS. McHENRY: Yes, Your Honour. We would
21 suggest that recourse does not, by its plain language,
22 indicate that it's more than a guide or a reference,
23 and as the Erdemovic Chamber found and as the Kambanda
24 case in Rwanda found, and the Rwanda Statute has an
25 identical reference, that the International Tribunal
1 for Rwanda shall have recourse to the sentencing
2 practices in Rwanda. In both those cases, the courts
3 found that such practices are not binding, and the word
4 "recourse" is not meant to indicate that they are
5 binding, but such practices are one of the factors to
6 be taken into account.
7 One reason for that, as one reason I've
8 already mentioned, is the difficulty in determining
9 exactly what the practice is. Another reason
10 articulated by the Chambers is that the main goals of
11 punishment may differ, appropriately, between this
12 International Tribunal and other Tribunals.
13 Going back, though, to the practice in the
14 former Yugoslavia, because we certainly agree that it
15 is relevant, it is clear that in war crimes and in
16 serious crimes such as homicide, an accused could
17 receive a sentence of death or 20 years or lesser terms
18 of imprisonment. It's also clear that a court did not
19 have to impose a death penalty before pronouncing a
20 20-year sentence but could just prove a 20-year
21 sentence. It's also clear that courts gave the death
22 sentence infrequently. One expert said, approximately,
23 two times a year, and the expert, Mr. Tomic, here said
24 less and only in extremely hard cases. 20-year
25 sentences, however, were given more frequently and were
1 not so limited.
2 The main factor in the practice in the former
3 Yugoslavia, we believe, is not in dispute and, indeed,
4 Mr. Tomic finally agreed to it, which was very
5 accurately and succinctly summarised in one sentence by
6 the Tadic court, which is "Imprisonment as a form of
7 punishment was limited to a term of 15 years or in
8 cases for which the death penalty was prescribed as an
9 alternative to imprisonment to a term of 20 years."
10 Mr. Delic then renews his legal argument,
11 this is in his written submissions, that he has been
12 improperly charged with both 7(1) and 7(3),
13 responsibility, both participation and superior
14 responsibility. The Defence has suggested that the
15 responsibility under 7(1) and 7(3) are mutually
16 exclusive and, in fact, alternative charges. The
17 Prosecution contends that they are not alternative and
18 that an accused may be found guilty under both theories
19 of responsibility. In this case, the accused,
20 Mr. Delic, had multiple roles and, in our submission,
21 has been properly charged with responsibility for his
22 multiple roles.
23 I would point out that it is often the case
24 that an accused can be found guilty under multiple
25 theories of responsibility, particularly in cases here
1 where you have a superior and his subordinates engaged
2 in a crime. In such cases, a superior can and should
3 be responsible for both his own direct participation
4 and for his actions and omissions regarding his
5 subordinates. Different interests are being protected
6 in the scope of the charges, and the ultimate sentence
7 should certainly reflect those different interests.
8 As noted by the Tadic court, when asked to
9 decide whether certain accounts are cumulative rather
10 than alternative, and I'll just make it clear for Mr.
11 Moran that I'm quoting, I believe, from the Tadic
12 decision, since I know he gets upset when the
13 Prosecution uses the word "technicality." As the Tadic
14 court found, an accused's ultimate sentence will not
15 depend on a technicalities pleading, but rather on
16 proven criminal conduct.
17 In this case, Your Honours could probably
18 find Mr. Delic guilty, both of those crimes with which
19 he was a direct participant and those counts charging
20 superior responsibility. Your Honours could, if you
21 believe it appropriate, merge those convictions for
22 purposes of sentencing.
23 Alternatively, if Your Honours wish, you
24 could find Mr. Delic guilty of those crimes with which
25 he was a direct participant and then exclude just those
1 murders from the superior responsibility counts with
2 respect to him but find him guilty of superior
3 responsibility for the other murders. In any case, in
4 arriving at his ultimate sentence, Mr. Delic's sentence
5 should be greater to reflect his multiple
6 responsibilities for the crimes.
7 In his submission concerning an appropriate
8 sentence, Mr. Delic then goes on to suggest that, in
9 this Tribunal, the protection of society in the
10 deterrence effect does not warrant a long sentence for
11 any -- the protection of society does not warrant a
12 long sentence for any accused, including himself. The
13 Prosecution would disagree and note, among other
14 things, that Bosnia-Herzegovina may likely have ethnic
15 tensions for a long period of time and in different
16 areas. Certain groups may continue to be a minority
17 and be in a position to be victimised. That's why it's
18 important that, in addition to the legitimate goal of
19 retribution, sentences for war crimes Tribunals should
20 be intended to deter and, indeed, Chambers in this
21 Tribunal and the Rwanda Tribunal have noted that these
22 retribution and deterrence are the most important goals
23 at arriving at just sentences before this Tribunal.
24 The Delic Defence suggests that the only
25 deterrence that should be considered relevant is that
1 of superiors. We would first note that, in fact,
2 Mr. Delic has been charged with superior
3 responsibility, but on a more general level, the
4 Prosecution rejects categorically, the idea that this
5 Tribunal should only be concerned with deterring
6 superiors. To the contrary. It is crucial that all
7 participants in a war, be they superiors or common foot
8 soldiers, understand that the laws of war mean
9 something and that everyone can be held accountable for
10 their crimes. To suggest that the conduct of
11 individual soldiers or guards, all of whom have the
12 power of life and death over others, may not be
13 influenced, or it's not important to influence them is,
14 in our view, fundamentally wrong and fundamentally
15 against one of the reasons why this Tribunal was
17 The Defence then finally suggests in its
18 written submission, including the attachments, that on
19 a few occasions Mr. Delic assisted some detainees or
20 their families, and the Defence reports once in
21 November of 1992 when mistreatment was still
22 continuing, Mr. Delic interrupted a beating of a
23 prisoner by other guards and allowed the prisoner to
24 return to the hangar. The Defence also reports that
25 Mr. Delic once arranged for some soap to be given to
1 the prisoners. The Prosecution does not contest these
2 incidents, but believes that under the totality of the
3 circumstances, they are of little or no significance.
4 As noted by the Chamber in the Mummothey case
5 and cited in the Prosecution's closing brief, "It is
6 not an unusual phenomena in life to find an isolated
7 good deed emerging from an evil man, because of
8 convenience, caprice, or even a sudden gleam of
9 benevolence forcing its way through a callused heart,
10 even a murderer can help a child to safety."
11 Mr. Delic was a murderer, he was a torturer,
12 he was a rapist. He horribly mistreated numerous
13 detainees. Mr. Delic did these things himself and he
14 ordered others to do so. I emphasise again that the
15 evidence that Mr. Delic ordered others to mistreat
16 detainees was witnessed by a large number of victims
17 who testified, and there is no need to rely solely on
18 Mr. Landzo's testimony concerning this. As a superior,
19 Mr. Delic did everything possible to foster an
20 environment where others could and did mistreat
21 detainees on their own initiative with no consequence.
22 The detainees lived in deathly fear of Mr. Delic. I
23 think it is almost impossible for us to comprehend the
24 enormity of the power exercised by Mr. Delic, the
25 suffering caused by his actions and his omissions, and
1 the deprived nature of his conduct. Of course, there
2 are no significant mitigating factors relating to
3 Mr. Delic, including the lack of any remorse.
4 Mr. Delic's sentence should reflect the
5 enormity of his crimes as participant and as superior.
6 In the recommendation of the Prosecution, Mr. Delic
7 should receive a life sentence. In the recommendation
8 of the Prosecution, the Chamber's verdict should also
9 recommend that under no circumstances should Mr. Delic
10 be released before 30 years. Unless Your Honours have
11 any additional questions about Mr. Landzo or Mr. Delic,
12 Mr. Niemann will now speak about Mr. Mucic and
13 Mr. Delalic and respond to their submissions.
14 Thank you.
15 JUDGE KARIBI-WHYTE: Thank you very much.
16 THE REGISTRAR: The document which was
17 submitted this morning regarding the written statement
18 by Mrs. Delic should be numbered D112/3.
19 JUDGE KARIBI-WHYTE: You may proceed, Mr.
21 MR. NIEMANN: If the Court pleases. Your
22 Honours, I'm dealing first with the written submission
23 submitted to Your Honours in relation to the accused
24 Zejnil Delalic. Your Honours, I go through this
25 submission and address the various issues, some of the
1 various issues raised there. Some of them have been
2 adequately dealt with, either in our written brief or
3 in the course of the proceedings, and I don't think
4 bear repetition, but there are some matters I think,
5 Your Honours, that may be appropriate for me to discuss
6 in the course of this submission.
7 First and foremost, on the first page of the
8 written submission of the accused Zejnil Delalic, we
9 are assured that the information that's provided in
10 this submission, in this written submission, is
11 intended for the purposes of sentence only. I make
12 reference to that, Your Honours, because it would seem
13 that when you go further into the submission, that we
14 see that matters which were raised also as part of his
15 Defence would appear to have been raised as part of
16 mitigation of the penalty. I just draw that
17 distinction, that it seems that in the case of this
18 submission, those matters are being raised again for
19 that purpose. To some extent, I will touch upon them
20 very briefly to deal with the aspect of them being
21 raised in mitigation.
22 Your Honours, on page 6 of their submission,
23 they draw attention to the fact that in keeping with
24 general observations on sentencing, the sentencing of
25 an accused person who is convicted of having superior
1 responsibility must be determined on a case-by-case
2 basis, according to the circumstances of each case. We
3 don't refute that, Your Honours. We fully accept that
4 the case-by-case analysis is an essential feature of
5 any sentencing process.
6 But in saying that, Your Honours, we submit
7 that, although the case-by-case analysis is an
8 important part, one should not lose sight of the
9 general principles that apply in sentencing and in
10 sentencing a superior in this case.
11 Your Honours, questions arise when it comes
12 to sentencing of superiors, such as should the sentence
13 of the superior be less than a subordinate? Is it
14 appropriate that the subordinate receives a greater
15 sentence than the subordinate? After all, it can be
16 argued that the subordinate is carrying out the wishes
17 of the superior, that he's carrying out the orders of
18 the superior. The superior has an objective that he
19 wants to achieve, and he uses the subordinate in the
20 role of facilitator in order to carry it out. So the
21 superior has the responsibility to ensure that the acts
22 of the subordinate are carried out in order to achieve
23 his or her objective. That is a general principle,
24 Your Honour, that must apply in our respectful
25 submission, and so one must assume from that that the
1 superior knows what he wishes to achieve when he sets
2 out to obtain a purpose. If the subordinate is merely
3 carrying out those wishes, then is it appropriate that
4 the subordinate receive the greater sentence? Indeed,
5 I think that it's this rational that goes behind the
6 principle that superior orders are a mitigating
7 factor. They are not a Defence, but a mitigating
9 In our submission, Your Honours, one starts
10 with the proposition that the superior sentence should
11 be greater than the sentence of the subordinate, and
12 it's only that when one looks at the case-by-case basis
13 that do you then seek or do you then proceed, if
14 necessary, to mitigate the sentence. As I said, some
15 of the issues that were raised by Mr. Delalic in his
16 submission are matters that go to his Defence as well,
17 but can be legitimately raised by way of mitigation.
18 I'm not going to repeat all of them, but on page 7 of
19 Mr. Delalic's submission, he raises the fact that,
20 first of all, he wasn't present when a lot of the
21 crimes were committed. Well, Your Honours, what this
22 means is that it may be the case that he wasn't there
23 at the immediate time the crime was committed, so he
24 may not have been in a position to take immediate
25 action. He may not have known the full details of the
1 events in the way that an eyewitness may have seen it.
2 But then, Your Honours, we must ask the question what
3 steps did he take to prevent things from happening when
4 he knew, ultimately, that they occurred.
5 One of the next matters that is put is that
6 he didn't know in advance. Again, this may be so, but,
7 Your Honours, if there is a continuing course of
8 criminal conduct going over a significant period of
9 time, it's strange to suggest that he never knew at any
10 stage. In our submission, Your Honours, on the first
11 occasion, if he didn't know in advance, that may be a
12 matter which would be the basis of some mitigation of
13 the penalty, not entirely, because a supervisor has the
14 responsibility to put in train, means whereby he will
15 be informed, or means whereby these crimes themselves
16 will not be committed.
17 Your Honours, in relation to that, it's true
18 that not being present and not knowing in advance may
19 have some mitigating benefit for him in sentence. It's
20 interesting, Your Honours, when one looks at
21 Exhibit P116, which is the interview on television.
22 It's a video interview on television. Mr. Delalic is
23 specifically asked about the Celebici camp and the
24 conditions that are said to prevail there, and he says
25 that, "It's only TV Belgrade which says it's
1 notorious," and then he refers to the fact that
2 organisations such as the Red Cross had been there, and
3 he says, "The people are detained in the barracks.
4 Their rights and conditions are as was possible in such
5 accommodation. Their relatives can visit them. They
6 have regular meals. I think they are better fed than
7 our soldiers."
8 Your Honours, he certainly knew something
9 about the conditions at the camp at the time so that he
10 was in a position to speak of those events at that
12 It's also been raised on page 8 of their
13 submission the fact that the conditions in Celebici
14 and, no doubt, the Konjic area in general, were hard at
15 the time. Having regard to the conditions that
16 prevailed, they did their best. Your Honours, this
17 isn't, in our submission, either a Defence or a plea in
18 mitigation. The position is, Your Honours, that if you
19 wish to take prisoners of war or civilians and put them
20 into camps and restrain them there, then, Your Honours,
21 you are obliged, under the Geneva Conventions, to
22 ensure that the conditions that are prescribed by those
23 conventions are maintained.
24 But irrespective of whether there are minor
25 breaches of the Geneva Conventions, there are such
1 vis-à-vis the conditions that apply. There was no
2 necessity for these people to be kept in tunnels, to be
3 deprived of water when water was available, for them to
4 be beaten and so forth.
5 On page 9, Your Honours, they go on in their
6 submissions to make reference to the fact that the
7 detainees were arrested in conformity with the law of
8 Bosnia-Herzegovina. In our submission, Your Honours,
9 there is no basis for this at all. There's nothing
10 that emerges from the evidence that suggests that is
11 so. We have no evidence at all that people were
12 notified of their charges. We have no evidence at all
13 that they were taken expeditiously before a judge. We
14 have no evidence at all that they were given access to
15 legal counsel. We have no evidence at all that they
16 had such rights as discovery or trial or sentence or
17 anything. All we now, Your Honours, is that they --
18 THE INTERPRETER: Could the counsel please
19 slow down for the benefit of the interpreters.
20 MR. NIEMANN: In my submission, Your Honours,
21 this treatment is, in no way, consistent with someone
22 who is being legally arrested and detained. They also
23 go on and speak of Mr. Delalic intervening in a
24 personal capacity to attempt to secure the release of
25 certain individuals. Your Honours, what this
1 demonstrates, in our submission, is that he had the
2 capacity and the authority in Celebici to take steps to
3 release certain prisoners, should he decide to do so.
4 There is then on page 10 of their submission,
5 a reference to the aim of the military action of the
6 JNA, et cetera. That was to eliminate the institutions
7 of legal government and to destroy Bosniaks and
8 Croats. Your Honours, when it comes to this whole
9 issue, what has been ignored by this is that there was,
10 in fact, a process of transition going on between the
11 breakdown of the federal state of Yugoslavia and the
12 emergence of the independent sovereign states, among
13 others, Bosnia-Herzegovina, Croatia, and so forth.
14 There were people contained in Bosnia-Herzegovina who
15 took a different political point of view, who desired
16 to be ruled by alternative political masters and who
17 sought to maintain their territory for that purpose.
18 So we're not assisted much, nor does it amount to
19 mitigation, for it to be suggested that somehow what
20 was happening in Konjic, by the forces of the army of
21 Bosnia-Herzegovina, was the only legitimate course
23 Then it goes on on page 12 as an extension of
24 this argument to suggest that the reason why the people
25 were placed in Celebici was to put down what amounts to
1 an armed rebellion. Having regard to the two views
2 that were prevailing in Bosnia-Herzegovina at that
3 relevant time, a similar argument could be relevantly
4 advanced in relations to people detained in Omarska,
5 Keraterm, and Trnopolje. Your Honours, we are not
6 assisted in any way, by these comparisons, nor do they
7 amount, in our submission, to a mitigation. What is
8 significant is to examine the conditions that prevailed
9 there, to look at the people who were responsible for
10 the particular institutions, be they Celebici, Omarska,
11 Keraterm, or whatever, and to determine whether or not,
12 having regard to the conditions that prevailed, there
13 has been a breach of the Geneva Conventions in terms of
14 the conditions, or whether other crimes against
15 humanity have been committed.
16 On page 14 of the submission of Zejnil
17 Delalic, in relation to a submission made under the
18 heading of "Activities of Delalic from April to
19 November 1992," the submission speaks of the fact that
20 Mr. Delalic was absent from time to time. They
21 specifically speak of him being absent in May when he
22 was in Zagreb. They speak of his activities in
23 relation to the railway that was being constructed
24 between Pazaric and Jablanica. Your Honours, these are
25 matters which were reflected in the documents that were
1 recovered by the Austrian police in Vienna and confirm,
2 Your Honours, the very matters which the Defence now
3 seek to rely upon as a matter of mitigation.
4 On page 18 of their submission, the Defence
5 of Zejnil Delalic said that he has given substantial
6 cooperation with the Prosecutor, and in support of
7 that, they cite the two records of interviews in which
8 he participated in. Your Honours, the mere giving of a
9 record of interview is not, of itself, evidence of
10 cooperation with the Prosecution. Certainly, there are
11 circumstances when it can be, but it's not some
12 automatic thing that flows as a consequence of giving a
13 record of interview. It can be given for the purposes
14 of advancing their Defence. It can be given for the
15 purposes of endeavouring to persuade the Prosecution
16 not to proceed with the charges. In the case of the
17 record of interview of Mr. Delalic, it's the
18 Prosecution's contention that, in some cases, he was
19 evasive and, in other cases, where he spoke of the War
20 Presidency having responsibilities and being in charge,
21 we see when it comes to the trial that this, what we
22 say, true and correct position, was abandoned in favour
23 of some other confusing formulation inconsistent with
24 what he said in his record of interview.
25 The Prosecution says, Your Honours, that the
1 accused, Zejnil Delalic, has given no cooperation to
2 the Prosecution at all. If he had given cooperation to
3 the Prosecution, we certainly would have acknowledged
4 it. It would have been a matter which would have
5 advanced the Prosecution's task, either generally in
6 relation to this Tribunal or in connection with this
7 case. It's our submission that there is nothing that
8 can be pointed to by the accused, Zejnil Delalic, to
9 say that he has cooperated with the Prosecution. On
10 that basis, in our submission, Your Honour, there's no
11 basis for him to seek mitigation of the penalty on that
13 There's also a reference to the fact that the
14 accused, Zejnil Delalic, provided the Prosecution with
15 numerous documents. Again, this is a decision that's
16 made on a tactical basis by his counsel for a whole
17 host of reasons and do not automatically point to the
18 fact that this amounts to a mitigation of the penalty.
19 In our submission, Your Honours, neither of those
20 matters give rise or justification to that basis.
21 There has been and there is, in this
22 submission on page 22, a sort of, justification, for
23 what occurred in Celebici made out on the basis that,
24 well, how bad it may have been, it wasn't as bad as
25 what happened in places like Omarska. Well, I repeat
1 and echo what I said earlier in relation to that, but I
2 add to it, that there's no evidence before Your Honours
3 at all about what happened in Omarska. There's no
4 evidence whatsoever what happened in the other camps.
5 The evidence before Your Honours is in relation only to
6 the Celebici camp. In our submission, Your Honours,
7 you're not assisted, in any way, by that submission.
8 Your Honours, we heard in relation to the
9 evidence called concerning the character of the
10 accused, Zejnil Delalic, that he had a moderate
11 attitude towards people of different ethnic backgrounds
12 and, in particular, I recall the evidence that he
13 didn't refer to people by name such as "Chetniks" or
14 other. I remind Your Honours of Exhibit P116. Again,
15 it's the television interview which is on video where
16 one sees the accused, Zejnil Delalic, speaking and
17 where, in describing the military actions that are
18 going on in Bosnia-Herzegovina at the relevant time, he
19 speaks in terms of the Chetniks, their tanks, and so
20 forth. I don't need to actually quote it in detail,
21 Your Honours. It's there to be seen. In our
22 submission, it's not correct to say that that was the
23 situation, that he would never use such terms.
24 Your Honours, in line with what my colleague,
25 Ms. McHenry, has said in terms of the Prosecutor's
1 recommendations, having regard to the role that he
2 played, having regard to matters that he has raised in
3 mitigation, it's the recommendation of the Prosecution
4 that the sentence in this case should be a sentence of
5 10 years.
6 I now turn, Your Honours, to the submissions
7 made by the defendant Mucic. Again, I will go through
8 the written submissions and address just some of the
9 issues that have been raised.
10 Mr. Mucic says on page 5 of his submissions
11 concerning the general question of sentencing that, and
12 I think it's better I read it, "Modern jurisprudence is
13 tending to come away from sentencing policy based upon
14 retribution and or deterrence and to concentrate on
15 education and protection as an alternative." My
16 colleague, Ms. McHenry, has taken you to what was said
17 in the Tadic case about this. It's my understanding of
18 the modern trends in sentencing that this is not the
19 case at all, that rehabilitation has been found not to
20 work and that the principle of the penalty being made
21 to fit the crime, sometimes described as just deserves,
22 is the appropriate basis upon which sentencing should
23 be approached. I say it in particular relation to this
24 Tribunal, because there may be a legitimate national
25 interest in countries pursuing a policy of
1 rehabilitation where those countries believe that
2 rehabilitation will be effective in reducing recidivism
3 and will benefit the community as a whole.
4 This Tribunal is in no position, Your
5 Honours, to supervise sentenced persons during the
6 period of time that they serve their sentence. The
7 Tribunal has a limited life in which it is to deal with
8 and address the issues in the former Yugoslavia, and
9 that the significant issue is that persons accused and
10 brought before this Tribunal and convicted of the
11 crimes charged, be sentenced in order that justice be
12 done and that the sentence that is imposed should
13 amount to appropriate sentence, having regard to the
14 justice of the matter.
15 Your Honours, on page 11 in their submission,
16 it said that, in speaking of Mr. Mucic, that if a
17 number of offenders are being sentenced together, the
18 fact that other defendants might be thought to be
19 deserving of a more substantial overall custodial
20 sentence than Mr. Mucic, it doesn't automatically mean
21 that he should receive a longer sentence. Your
22 Honours, the individual culpability includes his
23 position as a superior. In his own evidence, Your
24 Honours, he was able to ameliorate conditions in
25 Musala, according to the attachments, that there is
1 absolutely no reason why he couldn't have done the same
2 thing in Celebici. He knew what was happening in
3 Celebici. He could have taken action to stop it. His
4 acquiescence, in our submission, was seen as a sign of
5 his approval. He is more culpable, Your Honours, than
6 the mere guard who is instructed to carry something out
7 and does do it.
8 In our submission, Your Honours, if a
9 superior receives a light sentence or receives a lesser
10 sentence than subordinates who are merely carrying out
11 the wishes of the superiors, then this, in the eyes of
12 not only the subordinates but the wider community,
13 could be seen as an injustice, unless, again, it can be
14 justified on the basis of valid and appropriate
15 mitigating factors. Again, in my submission, Your
16 Honours, one must look at the general principle, and
17 only after that, one decides whether or not the
18 sentence should be mitigated to something less than
19 what the subordinate receives, if the mitigation so
21 On page 12, there are a number of mitigating
22 factors set out in their submission. They make
23 reference, firstly, to the previous good character of
24 the accused. Your Honours, before this Tribunal, the
25 previous good character of persons, especially persons
1 who are in superior positions, is likely to be the
2 rule, rather than the exception. Indeed, for superiors
3 and people in higher positions who are charged in
4 relation to these types of crimes, it's probably going
5 to be exceptional that they will have a bad prior
6 criminal record or a previous bad character.
7 The next submission put to Your Honours on
8 page 12 is the lack of participation in direct acts of
9 unlawful behaviour. Your Honours, it's easy to have
10 one's feelings aroused by terrible stories of cruelty
11 and torture being inflicted upon innocent human beings
12 who are kept in circumstances of captivity, and for one
13 to determine a sentence based on the reaction that one
14 has to those sorts of descriptions, but that behaviour,
15 in most of the cases that have come before this
16 Tribunal, will be carried out by the subordinate, while
17 the superior either turns a blind eye, is not present,
18 or fails to intervene. But, again, Your Honours must
19 ask the question, "Who is more culpable in these
21 The next issue of mitigation that is urged
22 upon Your Honours is the inevitable psychological
23 effect and long-term confinement and detrimental
24 effects upon the defendant and his immediate family.
25 Your Honours, the effects of a crime upon an accused
1 and his immediate family are the inevitable
2 consequences of the crime. They are not a mitigating
3 factor, in my respectful submission, at all. They are
4 the consequences of the crime itself. Once Your
5 Honours determine that the accused has committed the
6 crime, then, yes, there will be this impact, and it
7 will affect his immediate family, and one can feel
8 tragedy for it, but it is not a mitigating factor.
9 It's an inevitable consequence.
10 Your Honours, then it is said in his
11 submission that the particular feature that
12 incarceration in a country and a culture, to the
13 defendant, is a factor that makes such incarceration
14 more difficult and more punitive for any individual.
15 Well, that is a submission made in a vacuum. What is
16 it really saying? It's saying to Your Honours, "Well,
17 he's going to be in a country away from his home, and
18 it may be in a gaol which is less than as good as he
19 might expect in his own country or somewhere else." At
20 this stage, Your Honours don't have any idea where his
21 incarceration will take place, so it's quite impossible
22 for you to determine a sentence on the basis that he
23 may go to some place which has better gaol facilities
24 than others or have better conditions relating to the
25 treatment of prisoners than others.
1 Again, Your Honours, this is an issue that
2 goes close to the question of rehabilitation. The
3 whole question is, does the sentence that's imposed
4 upon the accused adequately reflect the offending that
5 has occurred, and is it just in those circumstances.
6 Your Honours really cannot hope to deal with that
7 question, because you simply don't know where the
8 accused will end up.
9 It's suggested on page 13 of the submission
10 that there's no credible evidence of active, direct
11 participation to a person in respect of any of the
12 violence or inhumane treatment. Your Honours, there's
13 lots of evidence of his participation in the inhumane
14 treatment. He was there. He saw the conditions. He
15 could have done something about it. He didn't do
16 anything about it. He knew that people were being put
17 down holes and incarcerated in these totally
18 unacceptable horrific circumstances, and he didn't do
19 anything about it. To that extent, he certainly
20 participated, Your Honours.
21 There's some evidence put before you that he
22 assisted others in escaping. Again, I say this is
23 evidence of the fact that he was in a position to do
24 something about it, could have done, but didn't, in
25 relation to the other unfortunate persons that were
1 left behind.
2 Your Honours, there was also mention in
3 relation to Mr. Mucic about the fact that he wouldn't
4 engage in referring to people by derogatory terms and
5 that he had an even and balanced attitude to all ethnic
6 groups. To balance that, Your Honours, I encourage you
7 to, again, look at the videotape of Exhibit P110 that
8 was mentioned by my colleague, Ms. McHenry, in her
9 submission, where Your Honours see, at length, where
10 Mr. Mucic has before him a Serb prisoner and where he
11 humiliates that person and forces him to sing verses
12 and quote animal names and so forth. In relation to
13 the question of whether or not he uses those terms,
14 there is a passage in that where Mr. Mucic is speaking
15 to this prisoner, and he says, "Raise the pistol
16 higher. Raise your arms. Are you a Chetnik, Risto?"
17 Your Honours can see that for yourself.
18 In our submission, Your Honours, the accused
19 Mujic knew what was happening in the camp. He was in a
20 position of responsibility. He could have done
21 something about it. He knew it was wrong. He sought
22 the people being tormented and humiliated. We have
23 even some video evidence of this, not that one would
24 have ever expected to see that. He could have acted.
25 He failed to act. In our submission, Your Honours, the
1 appropriate sentence in these circumstances is a
2 sentence of 20 years imprisonment. Those are our
3 submissions, Your Honours, unless I can help you with
4 any other matter.
5 JUDGE KARIBI-WHYTE: In which order is the
6 Defence making its submissions?
7 MR. MORAN: Your Honour, I think we're doing
8 it in the order of the indictment, but I'm not sure.
9 We're not?
10 MS. BOLER: I'll be happy to do it in the
11 order of the indictment.
12 MR. MORAN: I think we are doing it in the
13 order we presented evidence. I have a submission to
14 the Court, if we can take our break 20 minutes early
15 and shorten it a little bit, from a half hour break, to
16 break now, and then come back at 4.00, and then go
17 right through until we're done, because it might keep
18 things in --
19 JUDGE KARIBI-WHYTE: If we do it now and we
20 come back at 4.00, that means we may not break until
22 MR. MORAN: Your Honour, I would be,
23 personally, a little shocked if we were still here at
25 JUDGE KARIBI-WHYTE: That's the only
1 alternative. If we continue now and break at 4.00,
2 then it means we come back at 4.30 and then until
3 5.30. But if we break now, we will come back at 4.00
4 and continue until 5.30.
5 MR. MORAN: Yes, Your Honour. To some
6 extent, I think it's six to one and half a dozen to
7 another, but whatever pleases the Court. I was
8 thinking that we could do it now and maybe shorten it
9 for a few minutes because we only got two accused here
10 today, and then just continue on without a break.
11 That's my own suggestion.
12 JUDGE KARIBI-WHYTE: Yes?
13 MS. BOLER: I go along with Tom Moran. If
14 you aren't prepared to take a lengthy break at this
15 time, I would ask to be excused for about three
16 minutes, since it appears we are going in the order of
17 sentencing and that I will be up first.
18 JUDGE KARIBI-WHYTE: We will break now and
19 come back at 4.00.
20 --- Recess taken at 3.42 p.m.
21 --- On resuming at 4.05 p.m.
22 JUDGE KARIBI-WHYTE: Has the Defence decided
23 as to which way you're giving the submissions?
24 MR. MORAN: I thought we were going to go in
25 the order we presented evidence, but I see there's one
1 person missing in action, and in light of that, I'll go
2 first. I have no problem with that.
3 JUDGE KARIBI-WHYTE: Good. Then they can
4 join in when they come in.
5 MR. MORAN: May it please the Court?
6 JUDGE KARIBI-WHYTE: Yes. You may proceed,
8 MR. MORAN: Your Honour, this is probably the
9 100th time I've stood behind this podium, during this
10 trial, and it's going to be the last time, I hope. The
11 next time we're all assembled here, the Court's going
12 to be delivering its judgement, and the only thing I am
13 going to do is stand up when the Trial Chamber
14 announces your judgement. What I'm going to do this
15 afternoon is first, right off, talk about a very few
16 things that the Prosecutor said. I'll probably take
17 about two minutes on that or three minutes on that, and
18 then I have a few other things I want to say.
19 The Prosecutor, Ms. McHenry, talked about
20 people being entitled to a lower sentence. Nobody is
21 entitled to sentences. That's for Judges to decide.
22 Judges, in the exercise of your discretion and your
23 wisdom, viewing all of the facts. She says your
24 expecting majority of the sentences will be severe. If
25 that, in fact, was what the Security Council had in
1 mind when this Tribunal was created, then in Article
2 24(1), they could have said the minimum sentence would
3 be 10 years or 20 years or 50 years or whatever.
4 That's not correct. The whole range of punishment,
5 from no punishment at all to whatever is available
6 under the Statute, we've talked about the issues of
7 legality and nullen crimin. I talked about that at
8 length in writing, you will read it. I'm not going to
9 talk about it anymore.
10 I have presented a little bit of evidence on
11 mental health. I think that we need to clear something
12 up. Mental health information can go to two different
13 things. One is whether or not a person is guilty of a
14 crime. If a person is insane, a person is not guilty
15 of a crime. The other thing you can look at is how
16 does a person's mental health status affect what the
17 Court should do in assessing punishment. I've
18 presented mental health evidence that I've had, as you
19 can see from the date, in my possession for over a
20 year. It helps you learn more about Mr. Hazim Delic,
21 to help you exercise your discretion.
22 How did Mr. Delic get into custody? It's
23 pretty straightforward. He got a call from the
24 ministry of the interior, the MUP, to report to
25 Sarajevo, and he went into custody. Yes, there was a
1 delay on getting him to the Tribunal, and one of the
2 delays may very well have been caused by the fact that
3 he is misidentified in the indictment. He has the
4 wrong date of birth. Paragraph 4 in the indictment
5 shows his date of birth as May 13, 1964. His actual
6 date of birth is May 14, 1960. The jurisdiction that
7 I'm familiar with wants to be darn sure if you are
8 going to be extraditing somebody, you have the right
9 guy. This Tribunal already has some experience on
11 JUDGE JAN: Were there any other persons by
12 the name of Hazim Delic in the camp.
13 MR. MORAN: No, Your Honour. And no one is
14 suggesting that. I'm just suggesting that it's a
15 problem with identifying as a legal matter. It's a
16 decision that lawyers make. He reported to Sarajevo.
17 He was reported where he was told to report and he was
18 taken into custody. He didn't go into hiding, go
19 running across borders, anything like that. The
20 Prosecutor likes citing Erdemovic 1. It's been
21 overruled by the Appeals Chamber. It's clearly not
22 binding. If you want to look at it, fine, but it's not
23 authority. It's overruled. She asked you to take
24 judicial notice of evidence in the Tadic case. I would
25 ask you not to do that, and the reason I would ask you
1 not to do that is that no one has ever given it to me.
2 I don't know what it is. My client clearly ought to,
3 at least, know what the evidence against him is and I
4 ought to know that.
5 We talked about the principles of legality,
6 and Judge Jan, especially, I think you were asking
7 about Article 24(1) of the Statute, and looking at
8 Yugoslav practice. I think we have to draw a
9 distinction. I've raised two issues. Dr. Tomic, in
10 his testimony, raised two issues. One is the issue of
11 legality, that is, prior to the time this Tribunal was
12 created as an enforcement mechanism, is the maximum
13 punishment limited to what was available under Yugoslav
14 law? The other half of that -- that's a legal
15 question. The other half of that is look at the
16 practice to get a feel for what the Yugoslav courts
17 did, and that's -- the United Nations, the Security
18 Council told you to do that. It's not binding on you.
19 One, if I'm correct, may be binding. The other is
20 something to help you in the exercise of your
22 I looked through the indictment again today,
23 and I didn't see any counts on genocide and war
24 crimes. In the Erdemovic appeals decision, the Appeals
25 Chamber made it clear that genocide and the war crimes
1 are the most serious offensives. I may be misquoting
2 the Court and if I am I apologise. Ordinary war crimes
3 are less severe because they do not attack humanity as
4 a whole. I think the Court needs to keep that in
6 Article 7(1) and 7(3) liability. Article
7 7(1) is a crime of commission. You do something, you
8 order it, you do it yourself. You're an aider and
9 abettor. Article 7(3) is crimes of omission. You
10 didn't do something. I don't know how you can be
11 sentenced of both.
12 Ms. McHenry said my client showed no
13 remorse. Well, as a practical matter, my client has
14 pled not guilty. My client has told the Prosecutor to
15 prove it, and the Trial Chamber has not yet decided
16 whether or not the Prosecutor has proved it. I
17 couldn't let a client get up here and say, "I'm not
18 guilty yet and I'm pleading not guilty, but I'm sure
19 sorry for all those things I did." Under the procedure
20 we're using, it would just be essentially changing the
21 plea to guilty, and it's something that neither the
22 Prosecutor, nor the Trial Chamber, should expect.
23 With that, almost every time I've stood up
24 before here in the past to argue things, I've been
25 arguing the law. To me, the law is a very important
1 thing, and I think we had to focus on it in the past.
2 Every time I've done that, I've tried to be honest with
3 the Trial Chamber on what I think the law is, if it's
4 clear, and if it's not clear, what I think it ought to
5 be, and to draw the distinction between the two. But
6 that's an intellectual exercise.
7 Right now, I've thought about this, and I may
8 not be as articulate as I would like to be, but right
9 now is a time for me to talk to you and talk to you
10 from my heart about what I feel. You have to decide
11 the facts about what occurred in Celebici. But if you
12 decide those facts adverse to my client, you're going
13 to arrive at a sentencing decision. First, let me say
14 that there is no one in this building that has more
15 respect for the law of war than I do. I just added it
16 up today, 23 days, two months, and 23 days wearing a
17 uniform. I taught people about this. I care about
18 it. I think it's important. If I didn't think the law
19 of war was important, I wouldn't be here.
20 Now, having said that, all war crimes aren't
21 the same. You can look at a situation, the Einsatz
22 group, in cases where people went out and
23 deliberately engaged in horrible murders and war crimes
24 as a matter of policy. You have war crimes that are
25 ordered or condoned by high officials. I would submit
1 that those are more significant and they are worse and
2 should be punished more than crimes that are not of
3 that type, that are not the organised, deliberate
4 crimes against humanity and genocide.
5 In assessing punishment, I think you need to
6 look at a lot of things. One of the things I think you
7 need to look at is the training and background of the
8 offender. Another thing you have to look at is the
9 surrounding facts. In my written submission, I
10 referred to, I believe it's, eight factors that General
11 Peers found in his investigation of a US Army
12 atrocity during Vietnam, and I'm not going to go
13 through those factors with you on things where there is
14 a heightened possibility of war crimes.
15 What we have here, let's look at the
16 surroundings of Celebici, and if the Trial Chamber
17 believes, beyond a reasonable doubt, these things
18 happened, I'm not using this for an excuse, I'm just
19 saying it's something that should be considered in
20 setting punishment. It's clear from all of the
21 evidence that not only these four defendants, two here,
22 but the other two, they didn't have any training in the
23 jobs they were in. Esad Landzo testified he was
24 basically handed a uniform and a rifle and said, "Go be
25 a guard." Hazim Delic didn't have any training in any
1 kind of leadership. The guy was an assembly line
2 worker. Pavo Mucic, he is not a trained military
3 officer, trained leader. Zejnil Delalic, he's a
4 businessman. He's not a general officer. We're not
5 dealing with the Coldstream guards here. We're dealing
6 with a bunch of people who were thrown into a situation
7 without being trained to deal with the situation they
8 were in.
9 All of us that have come from places where
10 we're dealing with everything from soldiers to police
11 officers, to prison guards. We train them so that they
12 will know you don't do these things, and they will have
13 the discipline not to do those things. None of these
14 people had that.
15 The kind of fighting you had, this was
16 neighbour versus neighbour. This was a brutal, bitter
17 war, and it takes training and supervision from the
18 highest level down to the lowest level to keep people
19 from doing what they want to do.
20 Finally, let's look at the facilities at
21 Celebici for a second, that place right over there.
22 That's not a prison. That's a warehouse. For reasons
23 unknown to me, unknown, as far as I know, everyone in
24 this room, that was selected as a prison. People like
25 Hazim Delic had to try to work within that. Am I
1 saying that it's the kind of thing I would pick for a
2 prison if I were selecting and I had the ability to
3 select? No. I'm not saying that at all. But all of
4 those factors have to go into the consideration of what
5 sentence to give in the event that there's a
7 None of these people here, especially my
8 client, were traffic policemen that drove 50 miles so
9 that they could go to a prison camp and torture and
10 murder people just for the fun of it. No one is
11 suggesting that. Mr. Niemann hasn't suggested that.
12 No one has suggested it here. These were people that
13 were put in a bad situation, and maybe they didn't make
14 the best of it, but it lacks the inherent -- I'm not
15 being articulate here today. I can't even think of the
16 right word. But it's something, I think, of a
17 different magnitude.
18 Post-traumatic stress syndrome, you've heard
19 more about post-traumatic stress syndrome than you ever
20 want to here. Dr. Prince told you that Mr. Delic
21 suffers from post-traumatic stress syndrome. Nobody is
22 asking you to use that to exclude any criminal
23 culpability or criminal responsibility that you find.
24 If you find, beyond a reasonable doubt, that he
25 committed crimes, I'm here to tell you, post-traumatic
1 stress syndrome is not an excuse. It's not a defence
2 but it sure might be important in deciding what to do
3 with him if you convict him of something. It sure
4 might be a factor that you ought to consider in
5 assessing punishment.
6 When you look at Mr. Delic as an individual,
7 what do you have? You have a guy that went to high
8 school, got drafted in the army, where he was for a
9 little over 13 months, infantryman, carried a rifle,
10 goes home, gets a job, starts to raise a family, and
11 then he got caught up in a war.
12 When it comes to the purposes of punishment,
13 deterrence, deterrence from a court like this comes two
14 ways. One, the fact that people can be labelled war
15 criminals, just that label itself deters people.
16 Secondly, sentences from courts like this and the
17 post-World War II courts, act to force or to convince
18 policy makers to train people, their soldiers, so they
19 don't commit war crimes, to supervise them so they
20 don't commit war crimes, to set up systems, the list
21 cases, the Von Leeb cases, Nuremberg. I've been to the
22 seminars where senior officers are taught about war
23 crimes. I've taught them. I know what they are told.
24 Just the labelling of a person as a war criminal, fear
25 of that convinces these policy makers, these people
1 that can make the decisions, make the choices, to make
2 the right choices.
3 Retribution, if you want just pure revenge,
4 there's nothing I can say. The Prosecutor seems to
5 think that's an important issue. Punishment for the
6 sake of punishment, I don't think, is very effective,
7 but then I'm a Defence lawyer.
8 Finally, and this is one other thing, on
9 Mr. Landzo's written submission, there are some written
10 statements that are purported to be made by Mr. Delic.
11 I haven't objected to those things coming in, because
12 his counsel has the right to think that those
13 statements may and somehow be mitigating as to
14 Mr. Landzo. If I tried to keep those out, I'd probably
15 be depriving him of his right to effective assistance
16 of counsel. All I ask is if you want to consider them
17 in setting Mr. Landzo's punishment, that's fine with
18 me. I ask you not to consider them in any way, shape,
19 form, or fashion, as they involve Mr. Delic.
20 The Prosecutor recommended sentences on every
21 one of the defendants, and the jurisdiction I'm from,
22 it's allowable. I don't do it with Judges. I figure
23 that Judges are trained, they're experienced, you know
24 what they are doing, and I find that I would be
25 invading your jurisdiction, your job, to tell you what
1 to do. I would just suggest that you think about those
2 factors I've talked about and arrive at a just
4 Thank you very much, Your Honours.
5 JUDGE KARIBI-WHYTE: Thank you very much.
6 MS. BOLER: May it please the Court?
7 JUDGE KARIBI-WHYTE: You may proceed, yes.
8 MS. BOLER: Good afternoon. My name is Nancy
9 Boler, and I'm co-counsel for Esad Landzo. Lead
10 counsel Cynthia McMurrey is not present today in Court,
11 but she will be back in court for the verdict.
12 I know that it's probably not proper at this
13 time, but I would just like to say that I think that
14 Tom Moran gave just an excellent argument, closing
15 statement. In addition to what I'm going to say today,
16 I would like to adopt that as well. I echo his
18 Let me begin by saying that I'm the mother of
19 a son who's two years older than Esad Landzo was back
20 in 1992. Even without a personality disorder and
21 without a war on his doorstep, I cannot imagine placing
22 the responsibility of guarding 250 or so detainees on
23 someone so young and vulnerable. Esad Landzo had just
24 turned 19 when the war came to Konjic. He was
25 chronically ill and small for his age. You will recall
1 the testimony of the captain in the army, Witness DC-4,
2 who told you about the first time Esad Landzo tried to
3 join the TO. He said that Esad was just a child, and
4 he sent him back home.
5 One of the witnesses --
6 THE INTERPRETER: May the counsel be advised
7 to please slow down just a bit. Thank you.
8 MS. BOLER: The witness said that the
9 difference in his appearance in the courtroom today and
10 his appearance in 1992 was like night and day. You
11 heard testimony from (name redacted), people from
12 Konjic who knew Esad Landzo when he was young, and from
13 two physicians, Dr. Jajak from Konjic and Dr. Lamers
14 from here in The Hague about his chronic respiratory
15 problems. You heard about frequent hospital visits,
16 beginning when he was just a few months old, and about
17 the home remedies that his mother relied on, such as
18 wearing a pouch on his chest soaked in goat's fat or
19 pig's fat that smelled awful and did little to
20 alleviate his breathing problems.
21 He was a quiet, young man who found happiness
22 with his animals and with his art, and you heard no
23 testimony about violent acts of any kind prior to his
24 experience in the Croatian killing camp or at
1 Let me now address some of the arguments from
2 the Prosecution, both today and the written
3 submission. I'd like to echo what Tom Moran just spoke
4 about, in your comments, Ms. McHenry, about turning
5 themselves in. Esad Landzo, too, was the -- my
6 understanding is that his indictment was incorrect
7 also, and it was for a Senad Landzo and not an Esad
8 Landzo, and that this actually went to a Supreme Court
9 there in Sarajevo, and those things just had to be
10 worked out before the authorities could carry out the
11 extradition. So I do just have a quarrel with your
12 assessment that they fought their surrender to The
13 Hague. I just wanted to tell you those facts.
14 I do agree with the Prosecution's statement
15 that Esad Landzo acted under superior orders. We do
16 agree that sometimes he acted under orders, other
17 times, not. He told you that himself in his sworn
19 Ms. McHenry also stated that he reported that
20 he enjoyed carrying out his orders. Let me just remind
21 the Court that Esad Landzo's early statements to
22 authorities, newspapers, counsellors, therapists,
23 whomever, must be considered in light of his depression
24 at the time and the diminished mental capacity that
25 each mental health expert found independently. I will
1 address the issue of the defence of diminished mental
2 responsibility in just a few minutes.
3 Also, I'd just make a brief comment about the
4 use of the term "long period of time" by Ms. McHenry.
5 I believe that there was presented by the Defence and
6 by some of the Prosecution witnesses that shows that
7 Esad Landzo was there for a maximum of six weeks at
9 The comment about an article that we
10 submitted as part of Dr. Goreta's materials, where
11 there were five major criticisms of forensic
12 psychiatry, the first being that psychiatrists always
13 disagree. That may be true most of the time, but in
14 this case, in the case of Esad Landzo, the mental
15 health experts, the psychiatrists, and the
16 psychologists agreed.
17 I'll go along with you on the jargon-ridden
18 testimony, but just to qualify that by saying that
19 medical diagnoses, psychiatric diagnoses are
20 complicated, and it necessitates the use of medical
21 terms and psychiatric terms. So perhaps I would just
22 quarrel with the term "jargon," but certainly agree
23 that it's complicated.
24 There was also mention of an attempt to
25 dictate the law and give conclusive opinions. I
1 believe that we bring mental health experts and that we
2 bring experts of all kinds to the Court, and we hope
3 that the Court seeks guidance from their opinions, not
4 that they were trying to step into shoes that they
5 should not have stepped into. We just believe that
6 that's part of the system.
7 As for Dr. Goreta finding diminished
8 responsibility in all 25 of his subjects and somehow
9 suggesting that it was a faulty study, let me just
10 remind the Court that all 25 of those people were in a
11 mental hospital, a psychiatric hospital, and if you
12 haven't personally been through a psychiatric hospital,
13 it's a tough thing to do. It's a sobering experience.
14 Clearly, those people were very sick to begin with.
15 Ms. McHenry also stated that there was no
16 reason to significantly reduce any sentence because of
17 Mr. Landzo's mental health difficulties. Clearly, this
18 flies in the face of what mitigation evidence is all
19 about and, of course, it's a reason to reduce,
20 significantly, any sentence that the Court may give. I
21 will adopt a word that Ms. McHenry used to characterise
22 some of the Defence arguments that we raised, and I
23 would just have to say that idea is "ludicrous." Of
24 course, it's mitigating evidence.
25 There was also a mention of credit for time
1 spent in Bubulo. We do submit that there ought to be
2 some credit for the co-accused who served time in
3 Bubulo. This event arose directly out of the time that
4 Esad Landzo was at Celebici, arose directly out of
5 events at Celebici, and we ask that the Court just
6 review the relevant information that we attached to our
7 written submission when considering whether or not to
8 give credit for time served for Celebici. Of course,
9 it goes without saying that we also favour and expect
10 that he will get time served for all of the time that
11 he has been in detention here awaiting the end of this
13 As to the written submission, the sentencing
14 submission of the Prosecution, on page 13, the
15 Prosecution states that there should be no mitigation
16 for substantial cooperation with the Prosecution.
17 That's the way they termed it. Ms. McHenry spoke a
18 little bit about that in her oral arguments as well.
19 We disagree and urge the Court to consider the attempts
20 made by Esad Landzo to cooperate with the Prosecution.
21 In his testimony, Esad Landzo, himself, gave evidence
22 regarding this matter, and we ask the Court to accept
23 it as mitigation.
24 We agree with the Prosecution's statement on
25 page 25 as follows: "The Prosecution believes that
1 Landzo's youth and personality problems, including the
2 evidence from the mental health professionals that he
3 was easily influenced, may be considered in fashioning
4 an appropriate sentence."
5 We disagree with the following statement that
6 he represents a continuing danger to society.
7 Professor Van Leeuwen states the opposite in his letter
8 to me, which I received about a week ago, and we
9 submitted it as a written statement in the sentencing
10 phase of this trial.
11 In addition, a review of Dr. Goreta's
12 testimony will also confirm that Esad Landzo has
13 rehabilitated and continues to make further progress in
14 his rehabilitation and is not a danger to society.
15 The Defence of Esad Landzo also objects to
16 the word "blames" in the statement on page 26, wherein
17 the Prosecution states that Landzo blamed his actions
18 on his mental condition, on his youth, on his parents,
19 on his physical health, on his superiors, and on his
20 prior attorney. There's been evidence put forth on
21 each of these matters, and it's clearly relevant
22 evidence as to both guilt, innocence, and to be used in
24 Regarding the reference on page 27 to our
25 belief that the prosecution of a camp guard should be a
1 matter for the courts in Bosnia and Herzegovina and not
2 for this Tribunal, I'm not going to belabour that
3 point. It's been covered thoroughly in written briefs,
4 but I just must strongly disagree with the Prosecution
5 when they state the following: "Furthermore, such a
6 submission clearly demonstrates the lack of
7 appreciation of or contrition for the pain and misery
8 caused to the victims of his crimes."
9 This is a legal argument, and it just can't
10 follow that by making this legal argument we're
11 demonstrating a lack of appreciation for pain caused to
12 the victims. This is absolutely false. Esad Landzo
13 took the witness stand and admitted his guilt to the
14 crimes that he committed. In his letter to the Court,
15 attached to our submission on sentencing, and in his
16 written statement, he expressed his genuine remorse,
17 his sincere apologies to the victims and their
18 families, and the profound guilty feelings that will
19 stay with Esad Landzo for the rest of his life.
20 Regarding the specifics of sentencing to a
21 certain number of years, I will leave it to what Tom
22 Moran spoke to you about with his witness, Dr. Tomic, a
23 couple days ago, who spoke almost all day about the
24 sentencing practices in Bosnia-Herzegovina at the
25 relevant time in 1992. We would join with the counsel
1 for co-accused that Your Honours, should you choose to
2 sentence the accused to prison, that you do not exceed
3 the 15-year limit in effect in Bosnia-Herzegovina in
4 1992 at the relevant.
5 In lieu of prison sentences, however, Your
6 Honours have wide flexibility and wide latitude in
7 sentencing, and I just want to urge you to strongly
8 consider alternative sentencing for the co-accused and,
9 specifically, for Esad Landzo. I urge Your Honours
10 that in lieu of prison sentences you also consider
11 probation, probating sentences of five years to ten
12 years probation. That could include electronic
13 monitoring. It could include counselling and therapy.
14 It could include public service, community service, the
15 right of review after each year of probation.
16 Dr. Tomic testified that these types of creative
17 sentencing will become a part of the Bosnian sentencing
18 laws currently being revised.
19 I want to talk for just a moment about the
20 defence of diminished mental responsibility. Let me
21 begin by saying that as early as in her pre-trial
22 brief, Cynthia McMurrey gave notice that she intended
23 to raise the Defence, but when the time came to begin
24 the presentation of the defence of diminished mental
25 responsibility in earnest, we couldn't help but notice,
1 by facial gestures and by body language, the initial
2 scepticism expressed by some of the persons in this
4 At this point, what it all boils down to is
5 you believe it or you don't. It's that simple. But,
6 unfortunately, the legal defence of diminished mental
7 responsibility isn't simple at all. It's a complex
8 defence, and our preparation for the presentation of
9 this defence was long and arduous.
10 As you are aware, this is the first time that
11 the defence of diminished mental responsibility was
12 raised in a war crimes trial. However, we brought four
13 mental health experts to testify before you. Although
14 there was some distinction in terminology, each reached
15 the same conclusion independently, that Esad Landzo
16 suffered from a severe personality disorder that
17 amounted to diminished mental capacity. This
18 translates, in legal terms, to diminished mental
19 responsibility for his actions during the relevant time
20 period in 1992.
21 Esad Landzo was unable to exercise his own
22 free will, and my final comment on the defence of
23 diminished mental responsibility is this: We believe
24 that the Defence of Esad Landzo met the burden of
25 proving this special defence of diminished mental
1 responsibility. However, if Your Honours do not so
2 find, then the same evidence must be considered in
3 mitigation. As the Court is aware, this is the
4 practice in numerous jurisdictions throughout the
5 world, and I adopt what Tom Moran said in his mention
6 of post-traumatic stress syndrome, that it is clearly
7 to be considered in mitigation.
8 Only one of the four accused, Esad Landzo,
9 chose to take the witness stand and give sworn
10 testimony. In so doing, he subjected himself to
11 rigorous cross-examination by counsel for the
12 co-accused and by the Prosecution, and he withstood
13 that rigorous cross-examination because he was telling
14 the truth. He was steady and consistent in his
15 testimony because he was telling the truth. He
16 accepted responsibility for the crimes that he was
17 guilty of, and he denied responsibility for the crimes
18 that he was not guilty of.
19 In keeping with the Trial Chamber's request
20 yesterday that we keep these closing remarks brief,
21 I've attempted to do so. After more than 18 months of
22 trial, Your Honours have voluminous amounts of evidence
23 to sort through. In the event of a guilty verdict, I
24 trust that your deliberations will yield a sentence
25 based, not only the negative things submitted by the
1 Prosecution, but also on the positive things submitted
2 by this Defence.
3 As you look at Esad Landzo in the courtroom
4 today, you see a person who has matured in many ways in
5 the six years since Celebici. Certainly, he has
6 matured physically. He was a boy in 1992. Today is a
7 young man. The detention unit is feeding him well.
8 But he has matured emotionally. He has shown his
9 respect for the Court by his manner in the courtroom
10 and even by his choice of courtroom attire, a sports
11 coat, a dress shirt, and a tie. He has matured
12 mentally. With the counselling and the therapy
13 provided by the registry, he has made immense progress
14 in his rehabilitation.
15 I trust that Your Honours will consider all
16 of the evidence before you and that we will come
17 together again in a few weeks to here the results of
18 the hard work that is before you.
19 Let me close by expressing my sincere
20 gratitude to this Registry, to this Trial Chamber, to
21 lead counsel Cynthia McMurrey, and to Esad Landzo for
22 giving me the opportunity to participate in these
23 proceedings. It's been an honour and a privilege.
24 Thank you very much.
25 JUDGE KARIBI-WHYTE: Thank you. You may
1 proceed, Mr. Morrison.
2 MR. MORRISON: If you please, Your Honours.
3 One thing that I have always found difficult to
4 comprehend is how it's thought possible that Judges,
5 particularly in multi-defendant and multi-indictment
6 cases, have the mental capacity and ability to
7 determine complex facts with complete discretion, and
8 yet when it comes to the question of sentence, there
9 are people who believe that some sort of judicial,
10 mental block takes place which prevents them from being
11 able to exercise the same form of intellectual
12 discretion as they did with the facts. That's always,
13 I've found, to be one of the great difficulties with
14 those jurisdictions that give such credence to the
15 Prosecution or, indeed, politicians trying to determine
16 what the sentence should be.
17 Judicial independence means just that. It's
18 the intellectual independence of discretion, and I know
19 I am confidant that in this Tribunal that discretion,
20 that independence, will find its prime voice. The idea
21 that deterrence and retribution has not formed part of
22 recent and continuing modern jurisprudence, I find a
23 remarkable assumption.
24 For many years now, the climate of sentencing
25 has changed. In the early part of the Victorian era in
1 the United Kingdom, children were hanged for stealing
2 sheep. That's now regarded as barbaric. As we go
3 through time and we look back in time, it is usually an
4 extended period of time, because jurisprudence moves
5 slowly, slower than political theory in many ways. But
6 as we move on, we see that society has a different view
7 and takes different account of how people act and how
8 they are motivated.
9 One of the principal reasons behind that is
10 there are things like psychology and psychiatry have
11 made great strides, and we are better able now, than we
12 ever were before, to know what motivates people and
13 what makes them tick. Of course, even in allowing for
14 that, there are certain elements of human behaviour
15 which are so distressing, so horrific, that whatever
16 progress is made in one direction, there's a
17 back-surge, in the same way that the tide comes in and
18 out, to prevent ideas taking hold before their time.
19 But their time comes, and modern jurisprudence is
20 moving away from sentencing policy based upon
21 retribution or deterrence, and it's moving into a
22 more enlightened criteria of education and protection.
23 I don't ask that this Tribunal abandon the
24 deterrence and retribution. All I ask is that in that
25 great ambit of discretion, which I started off by
1 saying was the cornerstone of this Tribunal, that that
2 takes its place and takes a prime place in Your
3 Honours' considerations. That's a general point but
4 it's, in my submission, an important general point.
5 I have some more specific points, of course,
6 so far as Mr. Mucic is concerned. Some don't relate,
7 necessarily and exactly, to matters heard in evidence.
8 Of course, questions of guilt or innocence are now
9 historical as far as these submissions are concerned.
10 But they go beyond, perhaps, even questions of
11 sentencing from purely evidential points of view, but I
12 submit that they need to be mentioned.
13 I know, although I wasn't present, that some
14 of the behaviour of Mr. Mucic during these proceedings
15 has caused adverse comment. I know that Your Honours
16 won't take that into account in the great scheme of
17 things, because it doesn't, as it were, emanate from
18 the evidence and isn't part of the decision you have to
19 make, but we would be all less than human if there
20 wasn't some subconscious strata of antipathy to
21 somebody who did not behave properly in a solemn
23 If there is anything in Mr. Mucic's behaviour
24 during the proceedings that has caused you displeasure,
25 all I say is this: That anyone who has suffered
1 long-term incarceration pre-trial and during trial
2 suffers stress, to a greater or lesser degree. It
3 would be disingenuous to suppose one needed to call
4 psychiatric evidence of this, any more than one would
5 need to call medical evidence that it would hurt if you
6 hit yourself over the head with a hammer. It's part of
7 the human condition, and I ask you to take notice that
8 any man, and not a particularly well-educated or
9 sophisticated man, and Mr. Mucic will forgive me for
10 describing him thus, but it's accurate, may suffer the
11 sort of stress and the lapses in personal behaviour
12 which might, otherwise, be the hallmark of a simple
14 I also draw to Your Honours' attention the
15 effect of what I call the Bubulo acquittal, which
16 formed part of the addendum to the Defence submissions
17 of Mr. Mucic. Although quite correctly, the
18 Prosecution did not rely upon the allegation that
19 Mr. Mucic was, in any way, involved. Even the mere
20 mention of such involvement raises a shadow of
21 suspicion. In order to completely remove that, the
22 determination of the highest court in Bosnia that
23 Mr. Mucic is acquitted in all respects of any
24 involvement in that is now before the Court to remove
25 that shadow of suspicion.
1 There has been great play made upon the
2 effect before this Tribunal of the persuasive force,
3 because it is only a persuasive force, of the law that
4 pertained in the former Yugoslavia, particularly, in
5 Bosnia-Herzegovina. I remind Your Honours respectfully
6 of the evidence of the conjunctive use of the word
7 "and" in Article 33, the importance of a subjective
8 approach to sentencing relating to the individual, and
9 that goes, again, against the objective elements of
10 deterrence and retribution.
11 We heard from Professor Tomic of a fairly
12 sophisticated prisoner regime that was apparent and
13 available in Bosnia-Herzegovina prior to the war.
14 There were a number of layers of detention from
15 juveniles through adults, in the same way that there
16 are in most societies that have a reasonably
17 sophisticated penal system.
18 Obviously, and I echo the words of my learned
19 friend Mr. Moran here, that if you have such a
20 reasonably sophisticated system, you must have
21 reasonably sophisticated and trained people to run it;
22 otherwise, the system itself is of no avail. It is
23 plain that if you set up a camp, such as Celebici, and
24 turn it in to what, effectively, is a prison, and you
25 then have people brought in, these aren't people who
1 have applied for jobs. These are people who are
2 brought in to run the camp. If they are not people
3 with the sophisticated training, the leadership, the
4 manned management and administration, to look after
5 such a camp, then defects are bound to arise, and
6 people are going to be under pressure.
7 Pressure comes in many ways and many forms.
8 For a simple man, and Mr. Mucic is, I repeat, in many
9 ways, a simple man, to put him in charge of such an
10 institution, if you find that he was so in charge of
11 such an institution, even for a short period of time,
12 is going to be an immense strain upon him. He is not a
13 trained leader. He is not a trained manager. It may
14 well be that in such circumstances, even a mature man,
15 even a physically strong man, seeks to disassociate
16 himself with those responsibilities, perhaps, by the
17 simplest way of all, by simply taking leave, by
18 disappearing, by going away.
19 The whole of the basis of our submissions has
20 to be and the whole of the basis of the Prosecution's
21 submissions at this stage have to be upon the
22 assumption, and, of course, it is only an assumption at
23 the moment, that the Trial Chamber will convict every
24 defendant on each count of the indictment and on the
25 worst possible basis, because it would be irrational to
1 approach it on any other basis.
2 Considering that, of course, the figures put
3 forward by way of suggestion from the Prosecution are
4 based upon that draconian assumption. Of course,
5 therefore, the Trial Chamber will take note of that.
6 First of all, if it takes note of the Prosecution's
7 submission by way of giving a quantum of sentence, it
8 will reduce such quantum in two ways -- I beg your
9 pardon, in three ways. First of all, if people are not
10 convicted on every count of the indictment, there is a
11 pro rata reduction for those matters they are not
12 convicted on.
13 Secondly, if they are not convicted on the
14 worst possible basis, and this is a matter entirely, of
15 course, for judicial discretion, there will be a
16 pro rata reduction for the basis upon which they are
18 Thirdly, of course, it may well be that the
19 figures put forward by the Prosecution were not, in any
20 event, the figures that the Trial Chamber had in mind,
21 bearing in mind, of course, all the other matters in
22 mitigation, if they be accepted, put forward on behalf
23 of each of the four defendants.
24 That's a critical moment in this case,
25 because the indictment in this case contemplates
1 different bases for different types of convictions for
2 different individuals. It doesn't only allege acts of
3 commission. It alleges acts of omission, and actually
4 says in the particulars of all of the counts that
5 Mr. Mucic faces that he knew or had reason to know
6 whatever it is that is complained of.
7 I take this as an example. If, for any of
8 those counts or, indeed, for all of them, the Trial
9 Chamber is of the view that he is culpable by reason of
10 omission and culpable by reason that he didn't know but
11 that he simply had reason to know that such a thing was
12 happening or such an illegal act was occurring, then
13 that is a hugely different basis upon which to sentence
14 him than someone who deliberately and consciously goes
15 out to commit an offence, regardless of the
17 I invite you, when sentencing, that if you
18 find that these are acts of omission, and if it's on
19 the basis that he had reason to know, i.e.,
20 constructive knowledge rather than actual knowledge,
21 then to approach the sentencing upon that very
22 different basis on each of the counts in the indictment
23 that he faces.
24 You are, and at the risk of sounding, in any
25 way, sycophantic, all experienced and senior judges.
1 It's self-evident that you wouldn't be here if you
2 weren't. I'm not going to go into any sort of detail
3 about the figures that one should approach in
4 sentencing. That would logically fly against what I
5 started off in my submissions, speaking about the
6 widespread discretion, of course, which you have. But
7 it would be amiss of me, bearing in mind that such
8 figures have been suggested by the Prosecution, to
9 ignore it completely. It may be thought that by
10 ignoring them I was somehow concurring in them, and I
11 certainly don't.
12 I mentioned in the written submissions the
13 case of Von Leeb. That's an important case arising out
14 of the Nuremberg trials after the Second World War.
15 Von Leeb was a field marshall. He was in charge of
16 500.000 men. It was in that area of operations between
17 East Prussia and Moscow in the former Soviet Union, and
18 I have invited Your Honours to take judicial notice of
19 this, that many historians found was an area where the
20 worst of the atrocities, outside of the annihilation of
21 the Jews and other people that took place, the worst of
22 the atrocities were committed by military troops
23 occupying territory. Von Leeb was the head of it.
24 If there was ever a more extreme example of
25 command responsibility, it's difficult to see it. He
1 was convicted on the basis of what was called the
2 Barbarossa jurisdiction order, which was an
3 order which purported to give junior officers the right
4 to shoot people simply because they suspected them of
5 committing offences. He was convicted on the basis
6 that he had passed that order through the chain of
7 command and, therefore, he had criminal
8 responsibility. He was sentenced to three years
10 I refer Your Honours to Article 142 that we
11 dealt with with Professor Tomic. It is plain that,
12 although rather curiously, even when there's a
13 statutory minimum, and I know His Honour Judge
14 Karibi-Whyte, I think, if I'm correct, was slightly
15 taken aback by this, and, indeed, with respect, so was
16 I, that to see there was a statutory minimum and then
17 to find out that it isn't a statutory minimum at all,
18 and, frankly, judges have a discretion to pass a lesser
19 sentence, rather than --
20 THE INTERPRETER: We kindly ask the counsel
21 to slow down, please.
22 MR. MORRISON: But there is a statutory
23 minimum nominated, and it's five years. That's
24 regarded as five years strict imprisonment. When I
25 asked that you will recognise, that you will remember,
1 that strict imprisonment related not to the regime but
2 to the amount of imprisonment, the length of
3 imprisonment. In those circumstances, if five years
4 was seen as strict or harsh imprisonment in the former
5 Yugoslavia, that is one benchmark that you can operate
6 from in this case. I don't seek to fetter or suggest
7 any other figure, apart from those I've mentioned, but
8 simply to set them in the scale against the 20-year
9 figure advocated by the Prosecution.
10 Mr. Mucic, his worst offences hitherto are
11 poaching. That indicates, perhaps, that we are dealing
12 with a simple countryman. Those are the sort of
13 offences simple countrymen commit. There is evidence,
14 and it's set out in the written submissions, of him
15 helping other people in the camp. That is powerful
16 mitigation. It is rare, in any case, to have that sort
17 mitigation emanate from Prosecution witnesses, and I
18 know that Your Honours will give it all due
19 consideration when considering sentence, should you
20 convict in this case.
21 If there are any matters which I have not
22 dealt with which you think I should have dealt with, I
23 would invite Your Honours to, perhaps, suggest them to
24 me now. It's a practice we adopt in the United
25 Kingdom, and I can't get away from it. Normally
1 speaking, when a judge says, "I haven't got any
2 questions," it doesn't mean, of course, that the
3 advocate has covered everything. It means that he has
4 gone on for too long. But if there are any such
5 questions or any observations that Your Honours wish to
6 make, I will attempt, to the best of my ability, to
7 deal with them.
8 JUDGE KARIBI-WHYTE: I see no reason to make
9 any other suggestions than that. I think you have
10 covered the ground as much as anyone can.
11 MR. MORRISON: I'm very grateful for the
12 opportunity. Thank you.
13 JUDGE KARIBI-WHYTE: Thank you very much.
14 MS. RESIDOVIC: Your Honours, I hope that
15 this will be my last address to this Honourable
16 Chamber, because I believe that, after your decision,
17 Zejnil Delalic will no longer need counsel.
18 The closing arguments that we submitted in
19 our written submission addressed a number of issues
20 that were raised in the Prosecutor's submission.
21 Therefore, Your Honours, today I'm not going to dwell
22 on the general matters that we mentioned in our brief
23 having to do with the legal basis for sentencing and
24 the practice in the former Yugoslavia.
25 However, since today, in their final
1 arguments, the Prosecution addressed a number of issues
2 that we expressed in our submission, please allow me to
3 say just a couple of words which are, in my opinion,
4 relevant in the proper determination of the sentence in
5 this case in respect of the accused charged in the
6 indictment of the Celebici case.
7 Both the Defence and the Prosecution agree in
8 their written and oral submissions to the Tribunal that
9 the fundamental principle of anyone's criminal
10 responsibility, and that the basic guidelines, when it
11 comes to determining the appropriate sentence for the
12 accused, has to be the participation of a specific
13 person, of an individual, in the commission of a crime
14 and the basic characteristics of his personality.
15 We, therefore, refer you to these elements
16 and kindly ask you that when it comes assessing the
17 possible responsibility of Zejnil Delalic, to take
18 these elements into account.
19 In their final arguments, the Prosecution has
20 mentioned the gravity of the crime, while dealing with
21 this particular crime in general terms, and also in
22 respect of each of the accused. The gravity of a crime
23 is, by all means, one of the elements that affects the
24 appropriate sentence, and Celebici cannot be any
25 exception to that rule.
1 However, the Prosecutor has criticised today
2 the written submissions by Mr. Delalic and has stated
3 that we have no right to compare ourselves with other
4 serious cases, because this Court only has the evidence
5 that has been presented in the Celebici case. This is
6 contradictory to what the Prosecutor himself has stated
7 in his written submission by referring you to numerous
8 decisions reached at this Tribunal and numerous
9 decisions reached by other International Tribunals. He
10 has done so while discussing the gravity and
11 seriousness of the crimes committed.
12 The Prosecutor has, therefore, quoted the
13 Tadic decision, the Erdemovic judgement, and decisions
14 relating to the Rwanda Tribunal. In their written
15 submission, they even went as far as to claim that the
16 circumstances were identical. I quote, "When the victims of
17 the acts of Dusko Tadic in Kozerac had suffered the horrors of a two day intense
18 shelling and attack on the town which left behind 800 casualties."
19 I know, Your Honours, that you will take into
20 account other judgements and decisions by this Tribunal
21 and other relevant case law. My learned colleague,
22 Mr. Morrison, has reminded you of one of many such
24 Let me remind you of the already quoted case,
25 the Tadic case, which was cited by the Prosecutor in
1 his submission. He claimed that in two days, 800
2 people were killed, in Keraterm and that in Srebrenica, within a
3 few days, 8.000 civilians were killed, the civilians
4 who had been under the protection of the United
5 Nations. In the case of Rwanda, 800.000 people were
6 killed. According to the indictment of the Prosecutor,
7 in Celebici, 13 people were killed. Out of that
8 number, and I do not wish to analyse this particular
9 issue, at least six deaths have nothing to do with
11 Therefore, I am faced with the question, "Why
12 has the Prosecutor tried, ever since the beginning, to
13 to overemphasise the gravity of the acts that were
14 committed in Celebici?" For me as a human person, any
15 murder is equally serious. For a victim, it is always
16 a tragedy. But remember the first day of our trial,
17 Your Honours, the 10th of March, '97, I reacted very
18 strongly to the comparisons with the Nuremberg trials
19 and the Tokyo trials. I believe that throughout the
20 trial you have reached the same opinion, that is, that
21 these trials have nothing in common.
22 My learned colleague Mr. Moran has spoken
23 about the accused, being charged with the least
24 serious types of war crimes
25 if one can use that legal description. We,
1 here, deal only with grave breaches of the Geneva
2 Conventions. There have been no crimes of genocide or
3 crimes against humanity in this particular case.
4 Therefore, Your Honours, you see that these
5 comparisons are not valid, and you cannot ascribe such
6 gravity, as it is proposed by the Prosecutor, to the
7 case in Celebici. I'm convinced that you will be
8 perfectly able to ascribe appropriate elements to this
9 particular case, the elements that have been
10 established through the evidence that has been
12 I wish to add further comments to what my
13 colleague Mr. Niemann stated today. He said that the
14 circumstances that we offered as important
15 circumstances, namely, the fact that citizens of a
16 particular state had come under aggression, because in
17 the words of my learned colleague, Mr. Niemann, it was
18 merely a transitional period. I could not believe my
19 ears, because I had listened to Mr. Niemann in his
20 other addresses before this Honourable Tribunal, when
21 he spoke the same way that I am speaking to you now,
22 that is, that the state of Bosnia-Herzegovina was a
23 recognised state on the 6th of April, that it was
24 admitted as a member of the United Nations on the 22nd
25 of May, and that it had a legitimate right, as a state
1 and as its citizens, to defend themselves.
2 This, Your Honours, has nothing to do with
3 the rebellion in Prijedor where the civilian population
4 came under attack of those who had rebelled
5 against that state. This, actually, may be the first
6 case in which the defenders or those who
7 had been attacked have been brought before a
9 One other important fact that you have in
10 mind is something that was stated by the Prosecution
11 witness, General Divjak, and I will try to quote him.
12 I do not know much about history, and I can tell you
13 that he knows history quite well, but in as much as I
14 know about history, Sarajevo was, by and large, the
15 largest concentration camp after the Second World War.
16 From numerous other witnesses called, both by the
17 Prosecution and the Defence, you have heard that Konjic
18 was the fourth such city in Bosnia and Herzegovina.
19 You have heard about humanitarian tragedy that had
20 befallen this town, the town of Konjic, and I don't
21 think that I need to dwell on this issue any longer.
22 One of the issues that the Prosecutor drew
23 your attention to is that Zejnil Delalic and his
24 Defence did not cooperate with the Prosecutor. He has
25 explained that by the simple fact that Zejnil Delalic
1 had entered a plea of not guilty. According to my
2 reasoning, and I believe this is the reasoning of all
3 lawyers and all courts, that the assistance provided to
4 the Prosecution in reaching the truth and the assistance
5to provide the Court with all relevant evidence that can be corroborated
6and its veracity ascertained, is something that amounts to cooperation. An
7 innocent man cannot cooperate with the Prosecution by saying
8 that he's guilty. This would be absurd.
9 In our written submission, we indicated the
10 details of the cooperation of Zejnil Delalic with the
11 Prosecutor. You may know, and you may not know, that
12 Zejnil Delalic and Zdravko Mucic were the only
13 individuals who came to this Tribunal who had been
14 arrested before the Prosecutor issued an indictment
15 against them. Had anyone accused Zejnil Delalic, a man whom
16 you’ve come to know through witness testimonies, as a man who
17 has done something wrong, I'm sure that that person
18 would have come to the Tribunal.
19 Zejnil Delalic gave his first statement on 18 March, the indictment was
20 confirmed on 21st March, and it reached Germany where Zejnil Delalic was
21 arrested on 14 March. Zejnil Delalic informed the Prosecutor by
22 saying that he was ready to answer all his questions,
23 and he spent another two days in August in discussions
24 with the Prosecutor. Zejnil Delalic did not have to
25 provide any evidence to the Prosecutor. He had already
1 given it to the Prosecutor in May, and the Prosecutor
2 used that evidence. On the 27th of May, he suggested
3 that he should make available to the Prosecutor
4 everything that he had in his possession that may
5 amount to evidence. This is considerable and important
7 In January, before the Prosecution started
8 presenting its evidence, alongside with two letters, we
9 made available to the Prosecution a number of other
10 documents, and the Prosecutor admitted to this court
11 both orally and in writing, that the Defence of
12 Zejnil Delalic is providing huge amounts of
13 necessary information and evidence.
14 If Mr. Niemann is not aware of that, he may
15 very well ask about that from his learned colleagues
16 Ms. McHenry and Mr. Ostberg, with whom the Defence
17 cooperated over an extensive period of time. This
18 should be labelled as extraordinary contribution of
19 Zejnil Delalic to the determination of the truth in
20 this case.
21 The Prosecutor suggested today that Zejnil
22 Delalic, when he learned about certain things, failed
23 to respond. This is an allegation which cannot be
24 borne by any evidence. In Munich, Zejnil Delalic was
25 perfectly clear. He said that it was the first time
1 that he had heard of such incidents, and he said that
2 he was sorry if such things had, indeed, happened.
3 When he was in Scheveningen, he said, when
4 he heard about desperate individuals who were passing
5 through Konjic and Celebici, he said, and he said this
6 in the presence of relevant authorities at the time, he
7 said, "You must do something to prevent them from doing
8 something wrong." So that was the position of Zejnil
9 Delalic from the beginning.
10 His interviews, and we have heard Bajram
11 Delic, and we have seen the videotape of the interview,
12 the original piece of evidence that was offered by that
13 witness, the answers did not relate to the conditions
14 in the Celebici prison. His answers were in response
15 to a question as to his opinion about the enemy
16 propaganda, that is, the radio and television called
17 Serna. We heard this in evidence, namely, their
18 allegation that 5.000 people were in the tunnel in Bradina,
19 and this was later on denied, and it was proven that
20 nobody was in Bradina at the time.
21 Your Honours, what the Prosecutor wants to
22 say to you about Zejnil Delalic is contradictory to the
23 evidence that is before you. The Prosecutor is saying
24 something about the length, the period of time, over
25 which these crimes were allegedly committed. However,
1 the evidence tells you that Zeljko Klimenta, the last
2 victim in Celebici, and we are talking about the 26th of
3 July, and you know that as of August 10th, hundreds of
4 people were released from Celebici. You know that only
5 32 of them were later transferred to Musala. This was
6 the last crime before the beginning of August, and you
7 know that there were individual crimes that happened
8 during the night and so on, but I don't want to go into
9 details about that.
10 Zejnil Delalic may have heard something about
11 that from the Red Cross, and he acted promptly. On the
12 19th, the 24th and 28th of August, he conveyed the orders of
13 the superior command, and he definitely contributed for
14 a positive change of the circumstances.
15 We have evidence that was given by doctors
16 here in this Celebici case. We also have the testimony
17 by General Divjak, who knew about the situation, and
18 the statement made by Zejnil Delalic himself.
19 Therefore, the length and dimensions of the crime, as
20 they have been represented by the Prosecutor, are not
21 founded on evidence that's been presented in this
23 The Prosecution further goes on and claims
24 that Zejnil Delalic used the term "Chetnik" when
25 referring to Serbs, but we have heard witnesses who
1 have testified to the opposite. Zejnil Delalic has
2 never, ever referred to Serbs as Chetniks, not even
3 in the evidence that has been mentioned in this regard
4 by the Prosecutor.
5 The Prosecutor may not know, and maybe this
6 is not important, but there were, indeed, Chetniks in
7 the Serbian army, and people who refer to themselves as
8 Serbs. Nikola Poplasen , who has recently been elected President
9of Republika Srpska , commonly referred to himself as a Chetnik,a Chetnik
10Duke. So does Seselj. and this is not something that he would tell to his
11 friend, to his wife, or to any other Serb. This is
12 something that amounts to an insult, but there are
13 people, again, who, as I said, refer to themselves as
15 Therefore, Your Honours, and I don't think
16that I need to repeat the testimony, and could not use better words about Zejnil
17Delalic than our character witnesses, Branko Tomann, an Austrian citizen spoke
18 about him as a person. A Croat, Dako Ruzic,did so. A Serb, Nebojsa
19 did so. A Bosniak,Alija Buturovic, did so. Numerous other Prosecution
20 witnesses, and I'm not going to mention their names
21 now, all of them, even detainees in Celebici, spoke
22 highly of him. You have heard that Zejnil Delalic is a
23 cosmopolitan person, humane person, tolerant person,
24 who has never done anyone any harm and, on the
25 contrary, who has always endeavoured to do only good.
1 What, then, would be Zejnil Delalic's motive
2 to commit any of the crimes with which he has been
3 charged? That he did not have any responsibility in
4 regard to Celebici, that he had no business sitting
5 here for two and a half years, this is something I'm
6 not going to speak about.
7 Your Honours, courts all over the world are
8 faced with the difficult task of reaching verdicts.
9 The Court has to reach a verdict that is either an
10 acquittal or a conviction. This is something that you
11 are bound to do by your duty after you have dutifully
12 examined the evidence which is in front of you in
13 respect of all of the accused, including my client,
14 Zejnil Delalic. Only then, when the Court finds itself
15 ready and brave enough to publicly announce the
16 verdict, only then will my client, Zejnil Delalic, know
17 where he stands.
18 You have lots of experience, Your Honours, and I believe
19 that you will have enough courage, regardless of the pressure to
20 which the International Tribunal has been exposed, and I'm convinced
21 that you will reach a just verdict in this case, and in
22 the case of Zejnil Delalic, I'm sure it is going to be
23 a verdict of acquittal. Thank you very much.
24 JUDGE KARIBI-WHYTE: Thank you very much for
25 your submissions.
1 I am happy, as all of you are, that, at long
2 last, we are all making our final submissions in this
3 case. For almost two years now, we have been following
4 through our new Rules, new Rules which are an amalgam
5 of two strange bedfellows, we used to call them, and
6 which is a product of this institution and is unique to
7 it. You've all been following every inch, litigating
8 every point. I'm sure by now you have even lost count
9 of the number of motions you have moved and the number
10 of rulings we have made on the objections in these
12 As if this Trial Chamber is jinxed, we still
13 had to go through this particular procedure which we
14 now adopted. If you all remember, we were almost at
15 the end of our proceedings when the Rule relating to
16 sentencing was changed. We have to go back again and
17 find a way to enable you to include your necessary
18 evidence for punishment, as if we would never get out
19 of this trouble. I'm very happy we have found a way,
20 instead of having a pre-sentencing trial, to manage to
21 include a sentencing trial within a provision which
22 could have been done at a time you were collecting
23 evidence for the Defence or for the Prosecution.
24 In fact, my greatest happiness is that
25 without grudging anyone, you all rose to the occasion,
1 wrote the necessary memorandum, and got the necessary
2 witnesses to fit within this period, so that we could
3 comply with the Rules without creating unnecessary
5 On behalf of my colleagues, I thank you very
6 much for your efforts and for the endeavours which you
7 have made to ensure that your clients had the best
8 legal defence anyone can give them. I don't think they
9 could have got anything better than what you have
10 done. It is important in a matter of this nature to do
11 the best for them and then allow the Trial Chamber to
12 do its own side of the exercise.
13 We will try and do our best, and we are
14 hoping that when we deliver our judgement, and it will
15 be an integrated one, it's no longer a judgement and
16 then a sentencing after, it will be integrated in the
17 judgement. We're happy that you have given us every
18 opportunity and every assistance to make sure that we
19 did not fail in the temple of justice. My attitude and
20 I think is that of everyone here, we're only committed
21 to doing justice. It doesn't matter what those outside
22 or those inside think we're doing. It's a matter of
23 conscience, and we do justice to the best of our
24 ability. It is the traditional thing that whoever
25 loses has something else to say about justice, but
1 justice is all we want to do, and that is what, in
2 these circumstances, we are bound to do.
3 Sometimes it is usually thought that after so
4 long a proceeding, taking almost two years,
5 surprisingly this one is so fresh in one's memory, that
6 the two-year period looks like one year or even less.
7 You'll remember everyone's face. You remember the
8 nuances of each of the accused persons. You even
9 remember the witnesses who we heard, because they come
10 in so frequently that you tend to take it as a
11 household thing. We thank you very much for your
12 presentation, which has made everything very clear.
13 Unfortunately, I have no other case to do
14 here, and I'll miss everyone who have argued before
15 this Trial Chamber. I've always had a style of being
16 very taciturn. I don't like interrupting people. I
17 like it to go ahead. If, perhaps, you want to hang
18 yourself, it's all right. It doesn't matter. But I
19 think, generally, I have been very impressed with the
20 advocacy which I have met here. Apart from a few
21 difficult periods, things have worked very well. We
22 thank you very much, and in due course, we will have a
23 notice telling you when the judgement will be
25 Thank you very much. This Trial Chamber will
1 now rise.
2 MR. MORRISON: Your Honour, just before you
3 do rise, and I know that I speak for more counsel than
4 one, on the question of the date of the sentencing,
5 plainly, that's an administrative matter. I know that
6 the convenience of counsel does not come high on the
7 list of organising such dates and for good reasons, but
8 I think there are a number of people, for a variety of
9 reasons, who would be pleased if the sentencing
10 procedure was not before the 10th of November. I
11 simply put that figure into the system. If it's
12 impossible, then so be it, but if the sentencing could
13 be after the 10th of November, I know that would make
14 life, administratively, much easier for a number of
16 JUDGE KARIBI-WHYTE: Thank you very much for
17 making your request. I think we will take it into
19 MR. MORRISON: Thank you, Your Honours.
20 --- Whereupon the hearing adjourned at
21 5.35 p.m. sine die