Tribunal Criminal Tribunal for the Former Yugoslavia

Page 230

1 Tuesday, 18 October 2005

2 [Appeals hearing]

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE POCAR: Good morning. The Registrar, could you please call

7 the case for the ...

8 THE REGISTRAR: Good morning, Your Honours. This is case number

9 IT-98-34-A, the Prosecutor versus Mladen Naletilic and Vinko Martinovic.

10 JUDGE POCAR: I thank you. Can everybody hear me, in particular,

11 can the -- Mr. Naletilic and Mr. Martinovic follow the proceeding?

12 I understand this is the case. So we can continue our hearing.

13 When we did break yesterday, the Prosecutor had started its response to

14 the submission of counsel for Martinovic. The Prosecution will have an

15 hour today to continue and conclude its response. So I will give the

16 floor to the Prosecution for the purpose.

17 MR. FARRELL: Thank you, Mr. President. Good morning,

18 Your Honours. Good morning, my learned colleagues.

19 I'll just set out --

20 JUDGE POCAR: Judge Schomburg wants to have the floor.

21 MR. FARRELL: Sorry, Your Honour, please.

22 JUDGE SCHOMBURG: Thank you, Mr. President.

23 I take it you have concluded your remarks on the international

24 armed conflict. Having done some research and having read carefully your

25 remarks yesterday, in LiveNote it's page 124, it was at 5.35, that you

Page 231

1 stated that in Kordic and Cerkez in paragraph 311 implicitly Celebici and

2 Tadic were overturned.

3 Let me come back to this fundamental question of criminal law. I

4 think it's absolutely undisputed that when it's a question of

5 jurisdiction, then there is no question of mens rea at all, it's merely

6 objective criteria. But isn't it true that I'm not speaking of the

7 principle nullum crimen sine lege but I'm speaking about the principle of

8 guilt, the fundamental principle of guilt, that when there is an element

9 of crime that this element has in any event to be covered by the awareness

10 of the perpetrator, or would you be able to give any example in criminal

11 law where elements of crime are only seen as objective conditions for

12 penalisation? I take it, to conclude the question, that in Kordic and

13 Cerkez it was absolutely not necessary to discuss the factual question

14 whether one of the accused, in this case, were aware that there was an

15 armed conflict and in your discussion yesterday you also said that in your

16 opinion, in the case before us, from the factual perspective it's no

17 problem at all, but as you raised it as a legal fundamental question, I

18 really want to know what is your -- exactly your proposition. Do you

19 believe that a crime can be committed without the awareness of an element

20 of crime? Thank you.

21 MR. FARRELL: Thank you, Judge Schomburg. The question comes down

22 to your -- for me the question comes down to: When you say an element of

23 the crime, do you mean - or you're asking me - whether or not that element

24 is a requisite element to be proved in relation to the accused or whether

25 or not we can find things such as jurisdictional elements, chapeau

Page 232

1 elements or contextual elements that don't have to be proved in relation

2 to the individual perpetrator. I tried to take a look at that issue in

3 preparation for the hearing, and one matter which in my respectful

4 submission remains unresolved is whether or not the perpetrator is

5 required to know the widespread and systematic nature, for example, of the

6 chapeau element or the contextual chapeau element, however you want to

7 call it. It appears to be unclear only to the extent that in the Kunarac

8 Appeals Chamber judgement the Court has held that what the perpetrator

9 needs to know is that there was an attack against the civilian population

10 and that his acts constitute part of the attack.

11 Some Trial Chamber decisions including this one in Tuta, Stela,

12 says he had to know the widespread and systematic nature of the attack.

13 The Kunarac judgement doesn't specifically address that issue. It simply

14 limits it to: He has to know of the attack and that he was part of it.

15 That language, if I recall, was also duplicated in subsequent Appeals

16 Chamber decisions that, to that extent, if the -- there is -- there is

17 therefore a knowledge component, of course, but the knowledge component

18 doesn't include, if that interpretation is correct, the widespread and

19 systematic nature. In relation to -- I couldn't think of other contextual

20 or jurisdictional elements, the nexus with the armed conflict, I think

21 that's a jurisdictional element under our Statute.

22 I'm sorry, Your Honour.

23 JUDGE SCHOMBURG: I think this is absolutely undisputed and I

24 think we shouldn't discuss it, but when we have, in fact, jurisdiction and

25 we come to a concrete case, the question before us, why is it that in

Page 233

1 addition to other crimes under Article 5 or common Article 3, are

2 additional penalised when there is absolutely no awareness. I can't

3 really think about such a scenario where a person would not know that

4 there is such an armed conflict, but it might be. And therefore, I tried

5 desperately in the evening yesterday to find out what is the reason that

6 brings you to the conclusion that when you find a person guilty, that he

7 need not know about one element of crime.

8 MR. FARRELL: I can just refer, if I may, to the Blaskic Appeals

9 Chamber judgement. Sorry, I'm trying to find the exact passage. My

10 recollection is that the Blaskic Appeals Chamber judgement, the Appellant

11 argued that the -- the Appellant in that case, General Blaskic, had to

12 know that the persons were protected persons, that actually he had to have

13 the mental awareness of the fact that they were protected persons for

14 compliance -- for liability under Article 2 charges. And that was raised

15 and it was summarised in the Blaskic judgement as the position of the

16 Appellant. And the subsequent findings of the Appeals Chamber in my

17 submission concluded that it was not an element, it was not a mental

18 element requirement that they actually -- that the accused is aware of the

19 status of the protected persons. In my submission that's one example

20 where this court, when raised specifically and it's summarised and I

21 apologise, I'll get the reference to make sure I understand it correctly.

22 JUDGE SCHOMBURG: You need not. I looked it up yesterday.

23 MR. FARRELL: I could have -- I should have assumed as much,

24 Your Honour. But in that case, when it was raised specifically as a

25 requirement under the Geneva Conventions and therefore a requirement in

Page 234

1 relation to the mens rea element, this Court did not accept that

2 submission and found the Article 2 charges on the basis of the objective

3 criteria.

4 Now, therefore, we have Celebici, Tadic and specifically addressed

5 in Blaskic where for those objective elements of the international armed

6 conflict it was not found. Lastly I acknowledge that the ICC has taken a

7 different point of view and I accept your proposition that in fact that

8 there is knowledge of an armed conflict and that in most cases, be it

9 international or non-international, it would be presumably relatively

10 straightforward issue to address. And I also recognise that the state

11 parties to the ICC have taken the position that that is a mental element

12 and that, as a result, you do need to at least demonstrate an awareness of

13 some of those elements even if they are classified as contextual.

14 JUDGE SCHOMBURG: But finally, would it be your proposition in the

15 unlikely event that an accused is not aware that there is such an armed

16 conflict because the war -- the armed conflict just started that very

17 moment, and he has no contact by media or whatsoever, he commits this

18 crime, he's not aware that there is such an armed conflict, that then this

19 crime is not only covered by other Articles or by other offences but even

20 though he didn't know at all that there was an armed conflict, it

21 arises -- it demands to additional to an article 2 crime, it would be the

22 only -- sorry to ask you again, would you know about any crime where a

23 perpetrator need not at least be aware of -- that there is such an element

24 being the prerequisite of the crime.

25 MR. FARRELL: If the Court determines that it is a requisite

Page 235

1 element of the crime as an element of mens rea, unlike the determinations

2 for protected persons in Blaskic, then I would agree with you, yes.


4 JUDGE POCAR: Judge Shahabuddeen would like --

5 JUDGE SHAHABUDDEEN: May I follow with a brief question along the

6 lines of my colleague, Judge Schomburg.

7 Would you take your submissions as far as to challenge the

8 proposition by the Trial Chamber that there must be a nexus between the

9 act of the accused and the international armed conflict? The Trial

10 Chamber referred to that in paragraph 176 when it says that the

11 applicability of Article 2 of the Statute is subject to four prerequisites

12 and first one was an armed conflict must exist; the second one, there must

13 be a nexus between this conflict and the crimes charged. And then in

14 paragraph 177, the last sentence, the Trial Chamber said, "The existence

15 of an armed conflict nexus is established if the alleged crimes were

16 closely related to the hostilities." Now, the question which I want to

17 ask you is: How can it be determined that the act of the accused was

18 closely related to the hostilities unless you take into account the mental

19 state of the perpetrator of the act? Can you do that?

20 MR. FARRELL: The way I interpret the -- that passage, if I may,

21 Your Honour, in the way it's been interpreted in Celebici and Tadic is

22 that it's an objective determination as to whether or not there is

23 objectively a nexus to the armed conflict. I think this Court in

24 Rutaganda dealt with that issue -- not with that specific issue,

25 Your Honour, but dealt with whether or not the acts of the accused

Page 236

1 Rutaganda in that case were, whether there was a nexus and my recollection

2 was that that was an objective nexus. In relation to whether or not there

3 has to be a nexus between the armed conflict in the sense that it's an

4 international armed conflict, I would submit there has to be a nexus with

5 the armed conflict, with an armed conflict or the armed conflict, and then

6 the determination of whether it's international or non-international would

7 be an objective determination.

8 JUDGE SHAHABUDDEEN: You're saying then by use of the

9 word "objective" I understand you to be saying that the accused need not

10 be shown to have any awareness of the existence of the international armed

11 conflict?

12 MR. FARRELL: That's correct.

13 JUDGE SHAHABUDDEEN: Would you like to turn your fertile mind to

14 Article 3 of the Statute which relates to war crimes? I think that there

15 is a requirement there to show that the particular war crime or alleged

16 war crime was closely related to the armed conflict. Is that correct?

17 MR. FARRELL: That's my understanding, yes.

18 JUDGE SHAHABUDDEEN: How do you do that unless you show in some

19 way not that the accused was participating in the armed conflict, or the

20 international armed conflict in the case of Article 2, but that he knew of

21 the existence of that conflict and that he -- he had that in mind when he

22 committed the alleged crime?

23 MR. FARRELL: I'm sorry, he had the armed conflict in mind?


25 MR. FARRELL: Okay. I'd have to check the case law to determine

Page 237

1 whether or not there has been a subjective requirement. My recollection,

2 but I stand to be corrected of course, Your Honour, is that it's an

3 objective requirement as to whether or not there is a nexus. But I would

4 accept for the purposes of the proposition that you put, that he has to be

5 aware that he's committing a crime in the context of, and it can't be the

6 case that he thinks he's committing a domestic crime in the context of

7 some type of local skirmish and not realising that he's taking -- it's

8 taking place in a broader context but I don't think he has to actually be

9 aware of the nature, extent, or involvement of troops and the conflict

10 itself. He just has to know that there is something rising to a level of

11 some form of conflict.

12 JUDGE SHAHABUDDEEN: You accept that.

13 MR. FARRELL: Yes, I do.

14 JUDGE SHAHABUDDEEN: Do bear one thing in mind, Mr. Farrell. I

15 might well have been engaged in some of these cases which are under review

16 today but that does not prevent me from objectively considering the matter

17 in the light of your submissions and those of Defence.

18 MR. FARRELL: Thank you, Your Honour.

19 JUDGE POCAR: Mr. Farrell you may continue your submissions.

20 MR. FARRELL: Thank you very much.

21 There are three main issues that were raised by the Appellant,

22 Mr. Martinovic, yesterday, that remain to be addressed. One was the

23 murder of Mr. Nenad Harmandzic, the second was the wooden rifle incidents,

24 and the third was the indictment issue and for which the Court asked

25 questions of the Prosecution and of the Appellant.

Page 238

1 The fourth issue that was raised which we will not address but be

2 available for questions is the issue of cumulative convictions.

3 In light of the time I will be addressing if I can just outline

4 where we will go in the next 40 minutes or so, I will address the murder

5 of Nenad Harmandzic. Ms. Kind will address the issue of the wooden

6 rifles, and then Mr. Kremer, as he addressed the issue of the indictment

7 in relation to Mr. Naletilic, he will be available to address the issue of

8 the indictment in relation to Mr. Martinovic.

9 In light of the shortness of time I'm going to truncate all my

10 submissions on the murder of Nenad Harmandzic. I think it's fairly well

11 briefed. There is only one issue I will address, then, in a minute or two

12 which is simply the difference between the expert opinions in relation to

13 the identification of the body of Mr. Harmandzic.

14 In summary form, there were two witnesses that were called, one by

15 the Prosecution and one by the Defence. They disagreed on the manner in

16 which the body was to be measured. One, the Defence expert, looked at the

17 length of the bone and then calculated body height. The Prosecution

18 expert looked at the length of the skeleton and then added centimetres for

19 the living height. They came to different numbers. The Defence expert

20 came to a range of 182 to 183. Plus or minus a margin of error of two

21 which would make it somewhere in the range of 185 and that's where the

22 questions stemmed from to the Prosecution expert as to whether he would

23 agree to a margin of error of ten. As my friend said -- I think it was 11

24 to 14 as put by my friend. It's not 11 to 14. Even on the Defence expert

25 it was 182, 183 plus a margin of error of 1 to 2 which made it 185 and

Page 239

1 because the Defence expert said 185 then the question to the Prosecution

2 expert was, well, if it's 196 that's a big discrepancy. The Prosecution

3 expert said 182 do 183 plus or minus a margin error of 2 for bone

4 structure. That raised it to 815. Then the Prosecution expert said you

5 had to add five centimetres on for the living height in addition to the

6 skeletal height. That made it 190 for the Prosecution expert. Then there

7 was extensive discussion about whether or not there could be a margin of

8 error beyond that and whether or not that margin of error was such that

9 would render the identification unreliable.

10 This is where the divergence in the experts got greater. They

11 were at different numbers, 185 and 190 and then at that point in time

12 questions were asked as to whether or not that would be determinative.

13 For the Defence expert, who stayed at 185, it was determinative. For the

14 Prosecution expert, who came to the range of 190, the height of 196 was

15 not determinative in terms of the identification of the body.

16 I respectfully submit that the Trial Chamber was well within its

17 authority to accept the testimony of one expert over the other and didn't

18 enter into the recommend of providing expert opinion itself. In the

19 questions put to the Defence expert, the Defence expert first of all

20 acknowledged that the Prosecution expert, Dr. Zujo is an absolute expert.

21 That were the words -- those were the words. He also explained that, in a

22 question by Judge Clark, that it's not an absolute science. In fact he

23 says it was based on calculations and population studies. The Defence

24 expert admits that there can be a margin of error but concludes that the

25 margin of error was different. And lastly the Court noted that the actual

Page 240

1 height of the victim was the approximation by the son. It was never

2 scientifically established that he was 196 centimetres and in fact the

3 Defence expert at transcript 14912 when asked about the height said, "The

4 height came from the family. It's purely an impression and it's

5 subjective."

6 Judge Clark in the questions at transcript 7742, derives from the

7 questions and answers by the Prosecution expert that it's only one factor

8 and the Prosecution expert took the opinion that it is only one factor and

9 that in light of the overwhelming evidence of the identifying features on

10 the body itself, including the 6.35 calibre bullet which was found on the

11 body of the decreased and the evidence given before the deceased was

12 exhumed, that the person Nenad Harmandzic had shot himself in the leg with

13 a 6.35 calibre bullet that very same bullet found in the vicinity of the

14 right upper -- the right thigh. The age, the teeth, the injuries, the

15 shoe size, the buckle, the lighter, the clothes, the blue blanket they

16 were find -- found, and the fact that there was only one shoe, all these

17 factors quite frankly in the Prosecution's submission are overwhelming and

18 the difference between the Prosecution expert and the Defence expert was

19 not a matter which would overturn the Trial Chamber's ultimate

20 determination which in our submission was clearly within their realm to

21 do. I won't address the issue of the documents or the testimony of

22 Witness Ajanjic. We've set out in our brief our submission on those. I

23 don't need to reiterate it in light of the time, unless there are

24 questions on that particular -- those particular submissions. I'm sorry.

25 I'll allow Ms. Kind to deal with the wooden rifle incident. Thank you.

Page 241

1 MS. KIND: Good morning, Your Honours. I will respond to the

2 submissions made by the Appellant Martinovic yesterday regarding the

3 so-called wooden rifles incident for which the Appellant Martinovic was

4 convicted for unlawful labour, inhumane acts, inhuman treatment, and cruel

5 treatment. These are counts 2, 3, 4 and 5.

6 The Appellant Martinovic alleged several errors by the Trial

7 Chamber that led to his conviction for the use of four detainees from the

8 Heliodrom detention facility as human shields on 17 September 1993. I

9 generally refer to the Prosecution's response brief at paragraphs 3.16 to

10 3.27 and will today only address three of the allegations made yesterday,

11 namely first the alleged recording of the return of the prisoners to the

12 Heliodrom in Exhibit PP601.1. Secondly, the alleged inconsistencies in

13 the evidence of the three victims who testified. And thirdly, the alleged

14 involvement of secret police in the discovery of one of the wooden rifles.

15 Turning to the first issue, the Appellant Martinovic asserts that

16 all prisoners signed out from the Heliodrom detention facility by Vinko

17 Martinovic on the 17th of September 1993 were returned to the Heliodrom by

18 27th September, including the four prisoners involved in the wooden rifles

19 incident. And for this, the Appellant relies on Exhibit PP601.1, the

20 Heliodrom logbook at page 01535273. I would now like to ask Your Honours

21 and our learned friends to please look at the two relevant pages from

22 Exhibit PP601.1, which should now come up on your screens. If you press

23 the button computer evidence ...

24 JUDGE SCHOMBURG: I have no button.

25 MS. KIND: It's there, okay. Sorry. My technological knowledge

Page 242

1 is a bit limited. The relevant pages 01535272 and 01535273. On the first

2 page you see the column on the right-hand side the list of names of

3 detainees signed out to Vinko Martinovic on 17 September 1993. And then

4 on page -- on the next page, 01535273, it continues, this list, at the

5 left top corner. At the end, there, it says returned on 27 September 1993

6 at 1940 hours.

7 I would now like to show you the translation of this part. First,

8 the translation of the first page 01535272 at the bottom of this page, and

9 then following over, the continuation and there you should be able to see

10 the date and the time 27 September, returned at 1940 hours. Thank you.

11 Now going back to the original B/C/S version, you will see that

12 some of the names are ticked off while others have a small horizontal line

13 next to them. The evidence shows that these horizontal lines are next to

14 names of prisoners who were not returned to the Heliodrom. For example,

15 the names of the four victims whose names are on this list and who

16 testified before the Trial Chamber, Witnesses OO, J and PP. In order to

17 be able to refer Your Honours to the names of these three witnesses, I

18 would like to ask that we could briefly move into private session in order

19 to protect the identity of the witnesses.


21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 243

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 [Open session]

7 THE REGISTRAR: We are in open session, Your Honour.

8 MS. KIND: Thank you very much.

9 The evidence further shows that three other detainees listed here

10 as signed out to Vinko Martinovic on 17 September 1993 did not return to

11 the Heliodrom because they were killed on 17 September at the Bulevar

12 confrontation line. They also have the small horizontal line next to

13 their names. These are numbers 13, Hamdija Colakovic, number 19, Enes

14 Pajo, and number 28, Aziz Colakovic. The death certificates of these

15 three men were admitted into evidence as exhibits PP829 for Hamdija

16 Colakovic, Exhibit PP849, Enes Pajo, and PP55, Aziz Colakovic. The

17 Prosecution submits that in light of this evidence, it was not

18 unreasonable for the Trial Chamber to reject the Defence case that all

19 prisoners were returned to the Heliodrom by 27 September 1993.

20 I would now like to just briefly touch upon the two other issues

21 raised yesterday. The first one, the alleged inconsistencies in the

22 evidence of the three victims of the incident. The Prosecution submits

23 that the testimonies of Witnesses OO, J, and PP were consistent in all

24 material aspects, such as the names of the respective other three victims,

25 how they were fetched from the Heliodrom early in the morning by Dinko

Page 244

1 Knezovic, a subordinate of Vinko Martinovic, and taken to Martinovic's

2 headquarters. That Martinovic gave them the instructions to run across

3 the confrontation line, the camouflage uniform they were given, the back

4 packs full of stones, as well as the plastic bottles that were to look

5 like Motorolas, how they had to move from the health centre towards the

6 Bulevar next to the tank and run for their lives across the confrontation

7 line. The Witness PP got seriously wounded but was pulled to safety.

8 The Prosecution submits that in light of this it was not

9 unreasonable for the Trial Chamber to rely on the evidence of these three

10 witnesses that was confirmed by other evidence in the case.

11 And lastly regarding the allegations of the involvement of secret

12 police in the discovery of one of the wooden rifles, the Prosecution

13 submits that first of all, these allegations are wholly unfounded. The

14 Prosecution invites the Defence to point to the evidence to actually

15 support this claim. Secondly, the arguments are irrelevant because the

16 Trial Chamber did not admit the wooden rifle which was tendered as Exhibit

17 PP962 and the Trial Chamber considered this exhibit and rejected it at

18 paragraph 287 of the judgement.

19 Your Honours, this concludes my submissions on this topic. Unless

20 there are questions I will just say a few words about sentencing and then

21 pass on to Mr. Kremer. May I continue?

22 JUDGE POCAR: Please continue.

23 MS. KIND: Just a few words regarding the issues raised yesterday.

24 We rely on your our brief first of all but regarding the mitigating

25 circumstances, voluntary surrender was raised. The Prosecution's position

Page 245

1 is that it was within the Trial Chamber's discretion not to accept the

2 circumstances of Martinovic's transfer to The Hague as a mitigating factor

3 and not to give them any weight. The Trial Chamber had specifically

4 invited both parties for additional submissions on this topic in its order

5 of 14 February 2003, and considered the circumstances of his transfer in

6 paragraph 761 of the judgement and for more details, I refer Your Honours

7 to paragraphs 9.2 to 9.14 of our brief and in particular paragraph 9.6.

8 Regarding the argument that Mr. Martinovic assisted Muslims --

9 JUDGE POCAR: Judge Schomburg.

10 MS. KIND: I'm sorry.

11 JUDGE SCHOMBURG: Only one factual question. Does the Prosecution

12 concede that the points made by the Defence yesterday that the Appellant

13 tried his very best, being incarcerated in former Yugoslavia, to come

14 immediately to The Hague and that he waived his right to appeal against

15 the extradition decision and that it was the Prosecution hindering -- the

16 Prosecution in Croatia hindering him in not coming immediately to the

17 Tribunal so that finally he at least made some attempts to come to The

18 Hague of his own? Is this factual -- is this a factual basis you would

19 accept?

20 MS. KIND: The Prosecution certainly accepts this factual basis.

21 However, we would also like to refer you to your submissions in particular

22 in paragraph 9.6 where we set out also some of the motives why

23 Mr. Martinovic wanted to come to The Hague and we refer there to a

24 statement that he made at the state court in Zagreb that he wanted to be

25 transferred to The Hague to be retried for what he had been convicted for

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12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 247

1 in the state court.


3 MS. KIND: With regard to the argument that Mr. Martinovic

4 assisted Bosnian Muslims, the Prosecution's position is set out in

5 paragraphs 9.15 to 9.18 in the brief. The issue was fully litigated at

6 trial after the Trial Chamber had invited the parties to make specific

7 submissions on this topic. The Prosecution submits it was within the

8 Trial Chamber's discretion in light of the gravity of the crimes and

9 Mr. Martinovic's active participation in a position of authority not to

10 find that his assistance to a selected group of friends and neighbours was

11 to be given any weight in mitigation. Regarding the aggravating

12 circumstances, the Prosecution's position is that the Trial Chamber did

13 not abuse its discretion by considering Martinovic's command role as an

14 aggravating factor. In paragraph 758, the Trial Chamber first addressed

15 issue of the gravity of the offence and found that although Mr. Martinovic

16 did not have a significant -- sorry, yes. I apologise. Yes. That

17 because he did -- although he did not have a significant role in the

18 context of the wider conflict, his criminal conduct and the nature of the

19 crimes in which he participated were of grave significance. And it then

20 proceeded within the same paragraph to consider the fact that in his role

21 as a subordinate to his soldiers he was respected and was in a position to

22 influence the behaviour of the men in his unit and considered that in

23 aggravation.

24 Lastly with regard to the argument that the sentence is unfair

25 compared to sentences received by other accused in this Tribunal, the

Page 248

1 Prosecution respectfully refers Your Honours to its response to

2 Martinovic's supplemental appeal brief filed on 4 March 2005. And that

3 concludes my submissions.

4 JUDGE POCAR: Thank you, Ms. Kind.

5 Yes, Mr. Kremer you may continue your submissions.

6 MR. KREMER: Yes, Your Honour. I will not repeat the submissions

7 in respect of our basic position responding to the vague indictment issue

8 to the extent that I made reference to some background yesterday. I will

9 focus principally on the general allegations made by Mr. Martinovic's

10 counsel yesterday. I can say by way of starting that the complaints put

11 forward before this Chamber were no different than he put forward before

12 the Trial Chamber at the commencement of the proceeding, and in a

13 disclose -- in a decision dated February 15th 2000, the Trial Chamber in

14 responding to his complaint about the indictment, in particular the

15 vagueness of the indictment, set out for him a road map as to what he

16 should do to remedy the complaint to the extent that he felt that the

17 allegations in the indictment were insufficient.

18 The first tip that the Trial Chamber gave to Mr. Martinovic's

19 counsel was to read the statements that he had been given. During the

20 course of the motion, it was clear that Mr. Martinovic's counsel had not

21 read all of the 137 witness statements that he had been given and the

22 Court rightly pointed out that he should do so before making a complaint

23 as to not knowing how or what to defend himself against.

24 Secondly, the Court suggested that if Mr. Martinovic had a problem

25 with the details surrounding the specifics of an indictment count, in

Page 249

1 particular an indictment count that offered only broad descriptions of the

2 offences because of the systematic and long period of time over which the

3 crime was taking place, then he should ask for particulars of the

4 specifics from the Prosecution. Failing that, the Court also suggested

5 that a demand for particulars could be filed with the Court.

6 Mr. Martinovic's counsel did neither of those. He neither

7 demanded or requested from the Prosecution particulars. He didn't make a

8 demand for particulars. And the Prosecution did its utmost to provide

9 Mr. Martinovic's counsel with information that would help him identify the

10 particulars in respect of the general counts so that he could properly

11 defend himself.

12 I referred yesterday to the 65 ter list, and all of the witnesses

13 that are relied on by the Trial Chamber find their way it on to a 65 ter

14 list, one of the three that is filed as part of the pre-trial proceedings.

15 I'm just going to refer to two witnesses because much focus yesterday was

16 put on the unlawful transfer incidents, and Witness AB, for example - and

17 if this Chamber goes to the witness list, the name of the witness can be

18 identified - Witness AB testified -- says, according to the summary on the

19 65 ter list, on 19 July, 1993, his family was expelled from their

20 apartment by Dario Solaja, the witness then describes that he's imprisoned

21 in the Heliodrom, and he goes on to say at the end of the summary the

22 witness was forced by Martinovic's men to loot Bosniak apartments.

23 Looting was systematic and Martinovic was one of the chief organisers of

24 the looting. He was present when goods were looted on to trucks. The

25 witness also knew Kemo Selmanovic, a member of Tuta's unit who organised

Page 250

1 the expulsion of Muslims from Mostar and looting their property. Now

2 specifically referred to as this witness, although he talks about the

3 expulsions, is count 21, paragraph 57, which is the looting count. So

4 there was information about looting.

5 And another one about looting and then I'll get into the specifics

6 of the two unlawful transfer counts, Witness II, in early August 1993 the

7 witness was brought to Martinovic's headquarters near the Rondo where he

8 performed different tasks. At the end of the summary, the witness was

9 taken to assist in the looting of houses. Every day Stela's unit used 30

10 prisoners, ten for looting, ten for the front line, and ten to work at the

11 headquarters. Stela was aware all of this was happening. The witness

12 heard that his friends was forced to wear uniforms and carry wooden rifles

13 on Stela's part of the confrontation line. So again, in terms of looting,

14 he was put on notice as to Stela's involvement in looting and what

15 witnesses were to testify about it.

16 In terms of the unlawful transfer events, the witness Jeremy Bowen

17 who was a video journalist took images that he filmed in the Mostar area

18 during the month of September, in particular the day of September 29th and

19 the early hours of September 30th, when a large segment of the population

20 of Mostar was pushed across the river into the ABiH occupation zone or

21 area.

22 His transcript was disclosed in advance of his testimony. And

23 prior to his testimony, a description of what he would be testifying about

24 was set out by the Prosecutor and its relevance to the indictment. And

25 this is so for all of the witnesses who testified before the Trial

Page 251

1 Chamber. Mr. Stringer points out at page 5767 of the transcript and also

2 the evidence will be relevant to count 18 forced evictions, paragraph 24.

3 The testimony of Witness GG at the beginning of the transcript,

4 4739, Mr. Poryvaev states "the witness is going to testify count 18,

5 paragraph 54." At page 4756, the witness in answer to a question about

6 being expelled, answers "I was again expelled from the apartment on June

7 13." And then he goes on at the next page to talk about the expulsion

8 from his apartment and transfer on the 13th of June. It could not be any

9 clearer.

10 Witness WW, page 705, Mr. Scott introduces the witness as going to

11 talk about count 18, paragraph 54. At paragraph 7006, I'm sorry, 7034,

12 the witness talks about the 13th of June 1993. The witness is in fact

13 directed by Mr. Scott to that date and asked to identify for the Court and

14 describe what happened on that day and there is a fairly lengthy

15 discussion about what took place on the 13th of June. That happens in

16 respect of all of the witnesses.

17 Now, if it wasn't enough that the witness statements put the

18 accused on notice that these events were relevant to the indictment and

19 were relevant to the particular counts in the indictment and the facts

20 alleged in the indictment, there is more information disclosed to the

21 accused from which he should have been put on notice. There is

22 documentary evidence. And I'll just give a brief example because the

23 Trial Chamber referred to much of this documentation in its judgement.

24 P455.1 is a stamped daily report dated June 14, 1993 by Mate Anicic. For

25 June 14th, 1993, HVO units under the command of Vinko Martinovic, aka

Page 252

1 Stela and 4Bat were performing ethnic cleansing.

2 There is the videotape of the photo journalist I made reference

3 to, Mr. Bowen, videotape Unfinished Business documentary of East Mostar by

4 BBC correspondent Jeremy Bowen and again his testimony specifically

5 mentions the 29th and 30th incident.

6 And finally there is a report P620.1 and, as I say, there are many

7 other documents that are disclosed prior to their introduction and during

8 the course of the trial which clearly put Mr. Martinovic on notice as to

9 the precise details, and these are just examples that are reflective of

10 all of the counts that are in the indictment. It's a report to the

11 Republic of Bosnia-Herzegovina, Croatian community of Herceg-Bosna,

12 Croatian Defence Council, and basically it's information, it's a military

13 secret strictly confidential document to the Defence department,

14 "abductions of Muslims from Centar II suburb on 29 September 1993.

15 Around 1600 hours on September 29, 1993, Vinko Martinovic, aka Stela

16 arrived at the Mostar Defence sector looking for the commander Miso Zelic.

17 When he did not find him, he went to see Ivica Cavar at Sidi or aka Sidi,

18 the deputy commander of the first light assault battalion and told him

19 that the operation was to begin around 1900 hours in the evening as

20 agreed." The last paragraph on the page. "It was agreed that two groups

21 would conduct the operation, the Vinko Skrobo ATG, anti-terrorist group,

22 and others. A plan was drawn up for the transfer of women and children to

23 the left bank and men to Heliodrom to be kept for labour. The plan also

24 envisaged seizing all apartment keys and placing stickers on apartment

25 doors."

Page 253

1 It isn't any clearer that September 29th is a relevant date for

2 the purposes of the indictment in terms of unlawful transfer of Muslim

3 civilians of Mostar and similarly for June 13th and 14th. Plunder

4 exhibits are -- or plunder examples and the beating examples all follow in

5 the same fashion. There are various degrees of preciseness in the

6 information. It's also supplemented by the specific statements of the

7 witnesses that have been provided in advance, which -- in which more

8 detail is given but our submission is that if there was a defect in the

9 indictment in any way, it was cured by clear, concise, and timely

10 information provided by the Prosecution during the course of its

11 disclosure and pre-trial --

12 JUDGE SCHOMBURG: You already said when one comes to the

13 conclusion that the indictment as such is not clear enough when it reads

14 for example in para 27, "however, there were two large waves of forcible

15 transfers and imprisonment, one in the days following the 9 May 1993

16 attack and the second during the first days of July 1993." One could

17 arguably say that this is too vague and it covers -- does not cover the 29

18 September. What would you see as curing, if at all, the vagueness of the

19 indictment? The 65 ter list, the statements given, or something we are

20 very familiar with in both major legal systems, the judicial hint given at

21 trial? As you referred to, what would you finally say is the final act

22 curing a possible vagueness of the indictment.

23 MR. KREMER: The final act? They are -- all of the circumstances.

24 The initial guidance provided by the Trial Chamber as to what

25 Mr. Martinovic and his counsel should do to provide or to obtain the

Page 254

1 particulars that they were seeking, the provision of the information

2 pursuant to 65 ter, the immediate cross-reference given the names of the

3 witnesses that the crown had -- or the Prosecution had identified as their

4 witnesses to be called at trial, by reference to the statement that is

5 were previously disclosed, the reference to documents that dealt with the

6 same incidents because the 65 ter list identified particularly the

7 specific incidents that the witness would be speaking to and connected it

8 to a paragraph and count in the indictment, the fact that the witness was

9 called to testify and was identified prior to his testimony by the

10 Prosecution as going to testify about a specific paragraph and count, the

11 fact that the witness did testify, the fact that the witness was

12 cross-examined, that there was no objection to the witness testifying as

13 to that account because the Defence was being taken by surprise, there was

14 none of that. There was actually cross-examination. So that the

15 combination of what the events when looked at retrospectively confirm that

16 there was no unfairness and ultimately the question is: Even if the

17 indictment is vague, that vagueness was cured during the course of the

18 trial such that it has not been demonstrated by Mr. Martinovic that he

19 received an unfair trial, that the incidents on which the conviction was

20 based were clearly informed or were clearly made aware to him through the

21 various disclosure in advance of the witness testimony. He wasn't

22 surprised when they testified because he had been given the documents. He

23 had been given the witness statements, he had been given the 65 ter

24 notice, and he had the indictment which provided the details of the

25 between dates of this conduct, the conduct of plunder, the conduct of

Page 255

1 beatings, the conduct of forcible transfer. There were many, many, many

2 incidents and the Court chose to look at precise incidents which were

3 components of the more general charge. And the more general charge was

4 required because of the nature and number of the incidents that took

5 place. And so it fell to the Prosecution to provide information to the

6 Defence in the 65 ter list and in the statements and in the documents and

7 the Defence had the opportunity, if it was confused to ask, and it chose

8 not to -- to bring a motion for particulars, it chose not to. And our

9 position is that in order to make a valid argument before this Chamber it

10 must be demonstrated that there is an unfairness worked against the

11 accused because of the lack of clear, concise, and timely information.

12 There has been no such showing. In fact I would submit, based on my

13 submissions, it's the opposite. Thank you.

14 JUDGE SCHOMBURG: Thank you.

15 JUDGE POCAR: Judge Shahabuddeen?

16 JUDGE SHAHABUDDEEN: Mr. Kremer, is this Bench entitled to draw

17 any inferences from the fact, as you assert, A, that the Trial Chamber

18 indicated to the Defence the possibility of the Defence asking for

19 particulars, and, B, the fact that the Defence did not ask for

20 particulars? Is this Bench entitled to draw any inferences as to whether

21 the Defence was really embarrassed or not?

22 MR. KREMER: I think it's entitled to take that fact into account

23 in determining whether there has been any prejudice at the trial. That's

24 our position.

25 JUDGE POCAR: Well, I understand there are no more questions by

Page 256

1 the Bench.

2 MR. KREMER: Thank you. On the question of alternative and

3 cumulative charging, Mr. Tracol is here to answer any questions since it

4 was raised in the Court's letter and scheduling order.

5 JUDGE POCAR: I don't think there is any questions. So this

6 concludes the response of the Prosecution.

7 Now we will turn to counsel for Martinovic for their reply. They

8 have 30 minutes for the reply.

9 MR. PAR: [Interpretation] Your Honours, thank you. I will try to

10 briefly turn to all the issues raised by the Prosecution and I hope that I

11 will be able to give the floor then to my colleague, Kerns, to address

12 some of the legal matters before the Tribunal.

13 Let us start from the end of my learned colleague's submissions as

14 to the vagueness of the indictment. The position of the Defence is as

15 follows: The accused has the right to be served a clear indictment. This

16 is a matter that he is entitled to from day 1, without any reservations.

17 This is one of his fundamental rights and that's the position of the

18 Defence, and he claims that right this -- today as well.

19 The -- we heard the Prosecutor today say that the Defence counsel

20 were given guidance by the Trial Chamber. Guidance about what? To draft

21 an indictment for ourselves? The Chamber said that we had witness

22 statements, we had different lists to see for ourselves what the charges

23 were about. What were we supposed to do then? To draft the charges

24 ourselves? Well, I think I can go only this far in saying what our

25 position is in relation to the indictment.

Page 257

1 As for the wooden rifles incident, my learned colleague came up

2 with a list of who was alive, who was returned and who was not. I have

3 one question to raise in this relation. We have mentioned several persons

4 who were killed on that list but Mr. Martinovic was convicted on that

5 count. However they were killed elsewhere. It is our submission that

6 they were killed because they were holding wooden rifles in a different

7 unit. On the issue of Harmandzic's murder and whether it was a murder or

8 not, I submit respectfully that this Chamber should look at how the OTP

9 alternatively charged this incident. Now, why was it charged in this

10 particular fashion? It wasn't a coincidence. It was charged both as

11 murder and cruel treatment in order to cover all bases.

12 We know beyond any dispute that Harmandzic was in Martinovic's

13 unit. Now, whether he was beaten there or not is open for discussion.

14 Now, why was it charged this way by the OTP? Well, in order to make sure

15 that they cannot lose this battle, and I am shocked to this day that the

16 Trial Chamber accepted this bait offered by the OTP and I respectfully

17 submit that the Appeals Chamber should regard this issue from this

18 perspective as well.

19 The international armed conflict was presented to us from the

20 perspective of the OTP, and my learned colleague Farrell. Now, where is

21 Martinovic's subjective position in relation to this conflict? What my

22 learned colleague said simply doesn't stand. They offered to us the

23 Danish cook, Allen Knudsen. They told us to look at the paragraphs in the

24 judgement. I tell you to look at the transcript. This was a very

25 intelligent young man, a very dangerous man who could not be confused

Page 258

1 easily. He told us that he had been working as a cook in Denmark. He was

2 an adventurer who wanted to wage a war. He found an advert in the papers

3 where they were recruiting people for wars in Croatia, Afghanistan, Iraq.

4 He arrived in Croatia. He had a phone number that he had to call; that

5 was the only thing he had this his hand when he left Denmark. He was told

6 to report to someone at the main railway station in Zagreb upon his

7 arrival there. There was a group of them there who were met by this man

8 Brajcic, whatever his name was, who was recruiting volunteers. He wasn't

9 doing it on behalf of the Croatian government. This man Knudsen could

10 have reported in Canada or anywhere else, wherever there were people

11 recruiting volunteers for wars. Therefore, this was a person who had

12 nothing to do with the Croatian state. Allegedly he was taken to the

13 Croatian parliament. No, he was taken to the canteen in the Croatian

14 parliament because that's where he worked. And from there, he was sent to

15 Mostar, and he was carrying papers. Why? Well, because they had to make

16 sure that he wasn't killed upon his arrival in Mostar because he could

17 have been mistaken for a spy. My client Martinovic does not recall the

18 paper itself but, of course, the person had to have some papers on him in

19 order to identify himself.

20 And it is on the basis of this particular document that we should

21 take decisions relevant for international law as to Martinovic's awareness

22 or less? Now, on the basis of the testimony of this Allen Knudsen person

23 we should judge Martinovic's responsibility? This example could serve

24 more to prove Denmark's awareness of the international armed conflict

25 rather than Martinovic's. I would only like to draw one parallel in this

Page 259

1 respect. What is the Prosecutor's intention in referring to Knudsen?

2 They wish to discredit the testimony of Martin Garrod. We know who this

3 person was. He was the chief of the monitoring mission in Mostar at the

4 time who visited Martinovic's headquarters on a daily basis. He knew what

5 was going on in Mostar. Whenever he sent out a report, the capitals

6 throughout the world would be calling back on the basis of his reports.

7 And he was the person who testified to the matter of the international

8 armed conflict, and when he was testifying before the Trial Chamber here,

9 he was asked on this issue of the subjective approach to the international

10 armed conflict, suddenly the OTP finds this to be a ridiculous issue.

11 Martin Garrod was asked as to whether he knew Martinovic. He said that he

12 did because he met him on a daily basis. He was asked about the role that

13 Martinovic had, about what kind of strategic information he might have had

14 at the time. Look at the testimony by Martin Garrod on page 8595, when he

15 was asked about Martinovic's awareness or participation in the

16 international armed conflict. He was the person who was best placed to

17 answer such a question, and his answer was that it was impossible for him

18 to have such information. The only thing he was concerned with was to

19 survive. And it was this Danish cook, the other witness, who was supposed

20 to discredit a witness of such -- whose testimony had such weight. And

21 that would be all I would have to submit on this matter.

22 My colleague, Mr. Kerns, will address you on the matter of the

23 international armed conflict and other legal issues.

24 MR. KERNS: May it please the Court, counsel, I wanted to take

25 some time this morning to brought up --

Page 260

1 THE INTERPRETER: Microphone, please.

2 MR. KERNS: -- by my learned friend Mr. Farrell yesterday. In his

3 opening remarks he seemed to suggest to this Court that this issue of mens

4 rea as it relates to international armed conflict I believe his words

5 were: It wasn't briefed. So he kind of suggested to this Court that,

6 well, we should be able to supplement our briefing. What he meant by that

7 was we didn't respond to the Defence's argument on this issue so we would

8 like an additional opportunity to brief.

9 I want to draw the Court's attention to -- specifically to our

10 very first ground of appeal stated in the appellate brief my counsel,

11 Mr. Par, drafted. And under the ground stated first ground of appeals

12 errors of law right at paragraph 8 and 9 it reads as follows: That

13 "Mr. Martinovic cannot be held responsible for the character of the armed

14 conflict in which he found himself in the period relevant to the

15 indictment. In particular, the character of the armed conflict is beyond

16 his knowledge and awareness and intention. It was indisputable that Mr.

17 Martinovic was positioned in front of his house in Mostar, on a street 200

18 metres long.

19 "First he was there in defence of the Serb forces in 1992 and

20 second when he was there when the Muslim forces attacked in 1993.

21 "Mr. Martinovic had no connection with persons, authorities, units,

22 outside of Mostar and had no way of knowing this wider context."

23 I'm sorry.

24 JUDGE POCAR: Mr. Counsel you have to slow down for the

25 interpreters.

Page 261

1 MR. KERNS: I apologise, Your Honours.

2 My point being that when my learned colleague suggested, well, at

3 least inferred that this is somehow a new issue that just got raised on

4 the first day of oral argument, it's not the case. It was briefed in our

5 very first issue, very first ground of law, and then you'll note that we

6 filed a supplemental brief which specifically cited the Kordic appeal.

7 Not only that, the Prosecution responded by filing a separate response to

8 our supplemental brief, again they cited the Kordic appeal. So it's

9 somewhat disingenuous to say that, now paragraph 311 of the Kordic appeal

10 has taken us off guard and we need an opportunity to brief this issue on

11 the second day of oral argument. I also note my learned colleague Mr.

12 Hennessy sought weeks ago to file supplemental arguments on the issue of

13 torture and, of course, this Court in its discretion said, hey, the time

14 for drafting supplemental arguments is passed. The oral argument stage is

15 at hand and now my learned colleague says we need another opportunity to

16 try to convince the Kordic Appeal Chamber it's wrong as to this issue of

17 mens rea.

18 When -- our point being that when we were citing Kordic in

19 February of this year, when the Prosecutor was citing Kordic in March of

20 this year, it's somewhat disingenuous to come before this Chamber and say,

21 well, we would like to opportunity to further brief the issues in core

22 different which, by the way, was decided in December of last year. Why

23 are they saying this? They are saying it because that hurts our position.

24 We didn't respond at all, frankly, to the issues raised by the Defence at

25 the time. We didn't come before the Chamber either through brief or

Page 262

1 otherwise until Mr. Farrell stood up yesterday to try and point out these

2 facts that supposedly substantiate my client's mens rea. Which I think a

3 full reading of the transcript will establish there was none. This is a

4 man that the Trial Chamber described as a Mostar boy, who was raised in

5 Mostar, stayed in Mostar, fought on a very small front line in Mostar,

6 that if you are a decent golfer you could hit a golf ball and cover his

7 entire area of responsibility. They wanted to infer that by -- there was

8 men with HV uniforms around. The Court -- the Trial Chamber also found

9 that of course there were going to be men with HV uniforms because many

10 Bosnian Croats went to Croatia to fight and then returned when the war

11 came to Mostar. So the existence of uniforms is proof of nothing, as to

12 my client's mens rea.

13 So I would like to ask this Honourable Court to look at those

14 arguments of the counsel with a little bit of suspicion when they say we

15 are surprised by paragraph 311 that says there is a mens rea requirement.

16 As the Honourable Judge Schomburg mentioned, they weren't even able to

17 point to a single case in any country of the world that says that an

18 element of a crime can just be imputed or inferred.

19 Counsel suggested because of the mens rea requirement wasn't

20 really raised in Kordic and in Tadic, that these are somehow overruled --

21 I'm sorry, in Tadic and Cerkez that they are somehow overruled by Kordic.

22 The fact that the issue wasn't raised, the logic then doesn't follow that

23 that issue was somehow overruled by Kordic when the issue wasn't even

24 discussed. The lawyers didn't even raise the issue as we have,

25 specifically in paragraphs 8 and 9 of our brief.

Page 263












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Page 264

1 It isn't the Defence's fault frankly, it isn't Mr. Martinovic's

2 fault, that no other lawyers decided to raise this issue in those other

3 cases.

4 We very specifically raised that issue and I would like to -- and

5 I'll address you more on that.

6 This morning, counsel for the Prosecution argued, well, the nexus

7 is also an objective test. Not only is the nexus an objective test but

8 the very existence of an international armed conflict is also an objective

9 test. Everything seems to be an objective test where we don't look at my

10 client's state of mind being a man who is raised in Mostar, stayed in

11 Mostar, fought in Mostar against the Serbs, originally fought alongside

12 the Muslims, then later fought against the Muslims, all in a single front

13 line area.

14 That's the context for which they now come before this Court and

15 argue there is proof beyond all reasonable doubt that he must have known

16 that this was international in nature. Remember that the trial court

17 described him as a local boy with a basic education and no military

18 training whatsoever, a taxi driver who became well respected and became

19 commander of a very small unit along the front line.

20 The Kordic opinion specifically stated that a person -- a soldier

21 must be aware at least of the factual circumstances, at least that a

22 foreign state was involved. In this armed conflict, and as my learned

23 colleague Mr. Par just mentioned, what did the witness state as to my

24 client's knowledge? It was simply we were thinking about keeping our

25 heads on our shoulders. We are on the front line. We are worried about

Page 265

1 surviving from the guys shouting-distance away. The Trial Chamber found

2 he had zero political connections whatsoever. We are talking about a very

3 small role that Mr. Martinovic played in this incident.

4 Your Honours, I would -- I know that my learned friend Mr. Farrell

5 did give Mr. Naletilic sometime to respond because they were kind of

6 tangentially raised, but I did want to bring that issue before the Court

7 and I'll be back before you after Mr. Farrell talks again. And I thank

8 you.

9 JUDGE POCAR: Am I assuming that this concludes your reply,

10 Mr. Kerns?

11 MR. KERNS: For this phase, yes, Your Honour.

12 JUDGE POCAR: Thank you.

13 Well, according to our schedule, we would break now and then start

14 with the Prosecutor's appeal after the break.

15 Mr. Farrell?

16 MR. FARRELL: Just on one excuse me Your Honour, I apologise for

17 interrupting. Just -- I don't want to prejudge Mr. Naletilic. Maybe he

18 has no submissions to make but in light of the fact that did I raise

19 factual matters yesterday on the international armed conflict, on the

20 knowledge of Mr. Naletilic, that's the only issue that I had left open,

21 just in relation to the starting time or, I'm sorry, the starting of the

22 Prosecution appeal next.

23 JUDGE POCAR: I understand, Mr. Farrell. I simply had no request

24 from the Defence of Mr. Naletilic.

25 MR. FARRELL: You're absolutely right, Your Honour, and I leave it

Page 266

1 to him.

2 JUDGE POCAR: Mr. Hennessy?

3 MR. HENNESSY: If it's all right with the Court, I'll visit with

4 my co-counsel and we will decide whether to make any further submissions

5 about international armed conflict during the time previously allotted to

6 us which I believe begins at noon today.

7 JUDGE POCAR: You mean you would like to make submissions in

8 responding to the Prosecution appeal? Is that what you mean?

9 MR. HENNESSY: Well, I would be happy --

10 JUDGE POCAR: We would conclude now the appeal of Martinovic, the

11 appeal of Naletilic, it concluded yesterday. We should start with the

12 Prosecution appeal. It's your -- it's your intention to make some further

13 submission on behalf of Naletilic as to the armed conflict in responding

14 to the Prosecution? Is that --

15 MR. HENNESSY: Let me say I don't expect to have any further

16 response with respect to international armed conflict, but if this is an

17 open invitation there were some remarks by Mr. Kremer regarding the

18 sufficiency of the indictment that were not made in a time frame where I

19 had the ability to respond and I do have a brief response to some of the

20 specific, for example, the specific references to 65 ter production that I

21 would like to respond to.

22 JUDGE POCAR: Well, I understand that your submissions in the

23 afternoon should be limited to the Prosecution -- responding to the

24 Prosecution appeal. The time for the Naletilic appeal has expired now.

25 That's how we see it.

Page 267

1 MR. HENNESSY: I understand that.

2 JUDGE POCAR: If you want to make some short remarks on the

3 factual finding -- factual submission made yesterday by Mr. Farrell, as

4 concerns the internationality of the conflict, I can give you ten minutes

5 for that, but that's it.

6 MR. HENNESSY: As to the --

7 JUDGE POCAR: I would prefer to do it now, in that case.

8 MR. HENNESSY: As to international armed conflict I have no

9 submission for you at this time.


11 MR. KERNS: I was trying to be just as polite as I could to my

12 counsel to give him a couple of minutes but I then do have two minutes of

13 response with regard to the sufficiency of the indictment argues, maybe

14 even a minute and 30 seconds, if --

15 JUDGE POCAR: You still would have until -- seven minutes for

16 that. Please. Make use of your time.

17 MR. KERNS: My learned colleagues also made an argument -- Peter

18 argued to this honourable court, look at all the warnings we gave in

19 relation to this indictment. We told them they could file these

20 documents. We told the Defence they could ask who for specifics. We

21 called witnesses who said they were going to be talking about September

22 29. So how could they not know this defect has been cured? But also, I

23 would ask this Court to recall that many times in the course of almost

24 every trial, there is evidence as to motive, opportunity and intent, other

25 bad acts of the accused which are not charged as crimes but they are

Page 268

1 offered as proof of motive, knowledge, intent, preparation, plan. In our

2 federal courts in America it's referred to as Rule 404(b) evidence, other

3 bad acts that tends to prove the facts in the indictment but they are not

4 charged as crimes. Here, what my learned friend submits is, hey, we can

5 throw in any bad act we want and then call it a crime at the end of the

6 case when the Defence sits there and is looking through the indictment and

7 saying well we are not even charged with it. There must be 404 B. It

8 must be prior bad act evidence. Why are we worried about this? It's

9 almost as if the Prosecution wants to say to this honourable Chamber,

10 Anything bad they talk about your client, watch out, because it might also

11 be a crime that you're charged with as well. How hard is it for one of

12 them to -- they filed an amended indictment once. How hard would it have

13 been to get on the word processor and type September 29th is charged as

14 well? I would submit to you that it's not an onerous burden on the

15 Prosecution to give sufficient notice of what an accused is charged with.

16 Especially in light of the various jurisprudence that allows for courts to

17 allow evidence of other bad acts in support of the acts that are charged.

18 And that's the point that I wanted to share with the Court and I thank

19 you.

20 MR. MEEK: May it please Your Honour and I'm going to be really

21 short but there were issues raised yesterday as to the vagueness of the

22 indictment that we have not been able to address and I just then

23 respectfully asking Your Honours if I may do that at noon for a few

24 minutes.

25 JUDGE POCAR: Mr. Meek, why have you not been able to address it

Page 269

1 yesterday? You could have done it.

2 MR. MEEK: Well, we didn't have time yesterday and there were also

3 factual issues brought up by Mr. Farrell regarding Simang, Falk, which I

4 would like to respond to also but, you know, if you're going to take a

5 break, that's fine, Your Honours, but in the interests of justice, I don't

6 think that ten minutes is going to ruin anything or stop this train.

7 JUDGE POCAR: Mr. Meek, I already told you that I was ready to

8 give ten minutes to address the question that --

9 MR. MEEK: Thank you.

10 JUDGE POCAR: But Mr. Hennessy said that they have nothing to do.

11 So you should make up your mind then on that.

12 MR. MEEK: That was -- that was-- excuse me, Your Honour. I

13 make -- Mr. Hennessy indicated that he didn't have anything to say on

14 international armed conflict, and I'm talking about the vagueness of the

15 indictment as regards Mr. Naletilic. I'm asking for ten minutes at noon,

16 Judge. That's all I'm asking for. In the interests of justice.

17 Mr. Farrell? What is your view on this?

18 MR. FARRELL: Though I appreciate the concerns of Mr. Meek and I

19 don't mean to be unfair in any way, but as the parties have been limited

20 to the time period, it's my submission that if they chose to address other

21 issues during their response that's of course their choice. Of course, we

22 are not prejudiced in any way but, of course, I presume that all of us

23 would like to make more submissions on a few other matters but that's not

24 the purpose today. Thank you.

25 [Appeals Chamber confers]

Page 270

1 JUDGE POCAR: Well, having consulted my colleagues on the Bench, I

2 will give you until 10.40, just to address new arguments made by the

3 Prosecution. Ten minutes. Ten minutes.

4 MR. MEEK: Thank you, Your Honours. I appreciate this. Briefly

5 I'm going to tell you that -- and I agree with what Mr. Kerns said that in

6 the course of trials, when you're a trial lawyer you'll know that the

7 evidence that comes in that may not be relevant to a count in the

8 indictment. Let me tell you that if you look at the Defence for

9 Naletilic's, our final brief, we never even addressed the issue of

10 expulsions in June 13th and 14th or September 29th. Why? Because we

11 didn't know we were charged with those crimes. We addressed everything,

12 it's a 180-page final brief, but yet nothing on those issues because we

13 were not given proper notice. In any trial, we all know this as lawyers

14 and judges, in any trial, what is the first thing that happens? The

15 Prosecutor gives an opening statement. That opening statement is to

16 outline the evidence he intends to prove and introduce at trial in order

17 to show hopefully proof beyond a reasonable doubt that the accused

18 committed this crime, this crime, that crime, or this crime. Review the

19 opening statement of Mr. Scott on September 10th, 2001, and Your Honours,

20 he mentioned May 9 expulsions, and he mentioned July 30th. No mention is

21 made of 13, 14 June, no mention is made of 29 September whatsoever.

22 And for the Prosecution to say, well, you know, they were put on

23 notice by witnesses that came and testified, they should have known that

24 during the trial, that begs the question of whether a proper notice was

25 given in the indictment. There has been cases from this Tribunal that

Page 271

1 very clearly say that if you have a case where there is too many victims,

2 for example, to name them all, you don't have to. But if it's a simple

3 case of typing in another sentence, such as, and also expulsions on 13, 14

4 June, 1993 in Mostar, and 29 September, 1993, in Mostar, that the

5 Prosecutor should do that. It's just fundamental fairness, and my gosh,

6 we did not even address this issue in our final brief and it wasn't

7 because we missed anything, Your Honours. It's because we weren't put on

8 notice until the judgement came down that Mr. Naletilic was even charged,

9 even under 7(3) grounds, with those expulsions. And that is just

10 fundamentally unfair. Read the opening statement and you will see what I

11 mean.

12 I would love, and, Judge, I've been closer than -- ten minutes, I

13 think I've only used five, but I won't speak any more about Falk Simang

14 and Ralf Mrachacz. I just ask you to read their testimonies and you'll

15 see why they are so unbelievable that they should have been completely

16 disregarded. And thank you very much.

17 JUDGE POCAR: I thank you, Mr. Meek.

18 Well, we can break now for 30 minutes. We will reconvene at five

19 past 11.00.

20 --- Recess taken at 10.36 a.m.

21 --- On resuming at 11.10 a.m.

22 JUDGE POCAR: According to our schedule, we will now proceed to

23 hear the Prosecution's appeal. The Prosecution will have one hour for its

24 submissions and then we'll hear part of the response of Naletilic for 30

25 minutes before the lunch break. Mr. Meek?

Page 272

1 MR. MEEK: Thank you, Your Honour. Thank you, Your Honour.

2 May -- just one point. My client has again asked me to inquire as to

3 whether the Chamber has made a decision as to whether he might be able to

4 speak longer than 15 minutes this afternoon, should Mr. Martinovic not

5 take his whole 15 minutes. That's the only question I had for my client.

6 JUDGE POCAR: Well, yes, the Chamber has made a determination. I

7 think we'll give Mr. Naletilic five minutes more than the schedule of 20

8 minutes but this is not linked to Mr. Martinovic's using or not his time.

9 Mr. Martinovic will still have 15 minutes to address the Bench.

10 MR. MEEK: Thank you, Your Honour. We believe that's very fair.

11 Thank you.

12 JUDGE POCAR: So Mr. Kremer, you can proceed to your submissions.

13 MR. KREMER: Thank you, Mr. President. I can inform the Chamber

14 that I will deal with the deportation issue. My colleague, Mr. Farrell,

15 will deal with the persecution, and Mr. Tracol will deal with the

16 cumulative conviction issue in the Prosecution's notice of appeal.

17 Just before we start, I'm not going to be referring at all to the

18 Prosecution's appeal brief other than to point out that paragraph 4.7 or

19 4.8, I'm sorry, has a correction that is required. In the first sentence

20 to paragraph 4.8, there is an omission which I believe is important and

21 that should be pointed out so that there is no misunderstanding as to the

22 position. The ordinary English language meaning of the word deportation

23 is "the action of carrying away, forcible removal" - there were a few

24 words omitted; I don't know why, because I didn't prepare the brief -

25 "esp. into exile; transportation."

Page 273

1 I thought I would bring that to the Chamber's attention so that

2 the reference to the English dictionary definition is complete. The

3 position that we are advancing by way of oral argument is consistent with

4 the position that we advanced in our written brief but it takes on a

5 different approach and, I would submit, a more persuasive approach to the

6 question as to how this Chamber should define the term "deportation" for

7 the purposes of Article 5(D) of the Statute.

8 We start from the underlying principle that unlawful displacement

9 of a civilian population, whether described as unlawful transfer or

10 deportation is a war crime and/or a crime against humanity under customary

11 international law. And we say that the crime has been described as such

12 since Nuremberg. Making displacements of a civilian population a crime

13 protected fundamental human rights and this Chamber has acknowledged in

14 the Krnojelac decision the protected right I am speaking of at paragraph

15 218. It said "the prohibition against forcible displacement of people

16 aims at safeguarding the right of individuals to live in their communities

17 and homes without interference. The forced character of displacement and

18 forced uprooting of inhabitants of a territory entail the criminal

19 responsibility of the perpetrator, not," and I emphasise the word not,

20 "the destination to which these inhabitants are sent."

21 This Chamber also in Krnojelac discussed both crimes using the

22 label forcible displacement and decided that the act of displacing

23 civilians was the underlying act in the crime against humanity of

24 persecution under Article 5(H). Regardless of whether the act resulted in

25 a transfer to a place within the territory or to another country. For

Page 274

1 discussion purposes this morning, I will use the label unlawful

2 displacements but point out that the terms deportation and forcible

3 transfers are more commonly used in indictments before this Tribunal.

4 The Prosecution agrees with the Appeal Chamber Krnojelac decision

5 that the conviction for the crime of persecution was justified in this

6 case as the underlying act of unlawful displacement had been established.

7 That takes us to the question that the Appeals Chamber appears to be

8 interested in, and that is how should deportation be defined for the

9 purposes of Article 5(D) of the Statute.

10 Our position is with respect that deportation includes unlawful or

11 forcible transfer. The Appeals Chamber settled the law applicable to

12 crime against humanity of Prosecution and it remains for it to classify

13 under which crime against humanity unlawful displacement falls, whether

14 labelled deportation or unlawful or forcible transfer, when no

15 discriminatory intent exists.

16 In its appeal, the Prosecution submits that the Appeals Chamber's

17 reasoning in Krnojelac applies especially to deportation as a crime

18 against humanity. If the destination of the victims is irrelevant, to the

19 definition of the crime in customary international law as this Chamber has

20 found, then the definition of deportation in Article 5(D) can include all

21 unlawful displacements, including forcible transfers or unlawful

22 transfers, however you choose to define it.

23 Customary international law supports this position. We have filed

24 with the Chamber a supplementary book of authorities with the compilation

25 of sources in relation to displacement and displaced persons from the

Page 275

1 International Committee of the Red Cross study on customary international

2 humanitarian law published in 2005.

3 Never before has such an extensive body of sources been available

4 for interpreting customary international law and interpreting customary

5 international law on this subject. This study, ten years in the making,

6 shows that the language used to define the crime of displacement, albeit

7 in the context of the laws of war and the customs of war, is not

8 consistent and that a border is only infrequently included in the

9 definition.

10 If you look at the book of authorities, the chapter that has been

11 filed with the Chamber, you will see that only 17 of the 243 sources in

12 this chapter mention a transfer to another state. Nearly 200 mention

13 occupied territory and 47 make no reference to occupied territory. A

14 review of the sources demonstrates that the many terms -- that many terms

15 are used to describe displacement as a crime. Unlawful transfer, illegal

16 transfer, forcible transfer, forced displacement, unlawful displacement,

17 forcible eviction, expulsion, mass expulsion, driving away of,

18 deportation, and forced deportation. In many cases, two or more of these

19 terms are used together to describe the crime. While the language lacks

20 consistency, the underlying principle remains sacrosanct. That is,

21 displacement of a civilian population is universally criminal.

22 The Prosecution submits that a definition of deportation that

23 includes unlawful or forcible transfer affirms the principle that unlawful

24 displacement is a crime in customary international law and conforms to the

25 practice of defining the crime at customary international law. This

Page 276

1 definition will provide a clear definition and direction to the Trial

2 Chambers and to the parties.

3 I infer from the questions posed in the scheduling order that I

4 should be commenting about the two crime option. The Appeal Chamber has

5 posed the question about the definition of deportation assuming inclusion

6 of a border element. To answer this question, the Appeals Chamber must

7 honour the underlying principle that I started my remarks with, that

8 unlawful displacement of a civilian population, whether described as

9 unlawful transfer or deportation, is both a war crime and a crime against

10 humanity under customary international law.

11 How can the Appeals Chamber describe the crime to include a border

12 element or a destination of the displacement and honour the fundamental

13 principle? Recognising a border element forces the recognition of two

14 crimes. One carried out within the territory of the state and the other

15 across its border. This can only be accomplished by defining unlawful

16 displacement to another country as deportation, a crime against humanity

17 under Article 5(D), and unlawful displacement within the territory as an

18 other inhumane act as a crime against humanity under Article 5(I). While

19 two separate crimes are recognised, and differentiated by destination of

20 the transfer, the criminalisation of the conduct is preserved.

21 The Appeals Chamber also asked a question involving de facto

22 borders. Our research has not disclosed any customary international law

23 support for the notion of a de facto border. Although territorial borders

24 are used to differentiate between unlawful transfer and deportation in the

25 war crimes context. Deportation and unlawful transfer protects against

Page 277

1 unlawful displacements against a national border and within the territory

2 of the occupied state.

3 The occupation does not change the manner in which this protection

4 is applied. Although providing clear definition and direction to the

5 Trial Chambers and the parties, this interpretation will conflict with

6 definitional practices in defining the crime at customary international

7 law to which I have referred the Chamber earlier.

8 However, this approach raises one question which warrants brief

9 review. Can forcible displacements be classified under other inhumane

10 acts under Article 5(I)? This requires two determinations to be made.

11 Are other inhumane acts crimes under -- crimes, under Article 5(I)? And

12 do unlawful displacements within a territory meet the equal gravity test

13 for other inhumane acts set out in the jurisprudence? The answer to the

14 first question is yes. This Chamber in Krnojelac found that forcible

15 displacements were the underlying crimes of persecution. At paragraph

16 223, the Chamber concluded displacements both within a state and across a

17 national border were crimes under customary international law.

18 Consequently, the principle nullum crimen sine lege has been respected.

19 Nullum crimen sine lege is respected whether the crime of unlawful

20 displacement at customary international law falls under persecution or

21 other inhumane acts. The absence of discriminatory intent does not make

22 the conduct any less a crime. This conclusion is supported by the Trial

23 Chamber decisions in Krstic, paragraphs 520 to 523, Kupreskic, paragraphs

24 562 to 566, and Blagojevic, paragraph 625 to 630. Unlawful displacements

25 were found in the Krnojelac appeal decision to be of equal gravity to

Page 278

1 other crimes listed in Article 5 of the Statute. The Appeals Chamber

2 stated at paragraph 221 that, "This analysis is also supported by recent

3 state practice as reflected by the Rome Statute which provides that

4 displacements both within a state and across national borders can

5 constitute a crime against humanity and a war crime. The crime of

6 unlawful displacement within a state must be classified within Article 5

7 of the Statute. If Article 5(D) deportation includes only the crime of

8 unlawful displacement, across the border, then to avoid decriminalising

9 the crime of unlawful displacement within a state, the crime must fall

10 squarely within Article 5(I), 'other inhumane acts.'"

11 Conclusion: The Appeals Chamber has two options. One, define

12 deportation under 5(D) consistent with the customary international law

13 including the ICC definition as including all unlawful displacements

14 however described without regard to destination. Or, define deportation

15 as an unlawful displacement across a national border and acknowledge that

16 unlawful displacement within a -- the territory is another inhumane act.

17 Either option provides certainty and clarity. Those are my submissions.

18 JUDGE POCAR: Judge Schomburg?

19 JUDGE SCHOMBURG: Thank you.

20 First of all, I think we are all in agreement that we don't have a

21 question of nullum crimen sine lege before us. It's only a question of a

22 clear classification of the acts, and my question to you would be:

23 Wouldn't it be helpful to make a clear distinction between a deportation

24 across a border, we will come back to the question of de facto or de jure

25 later, across a border or inside the territory? I think the rationale and

Page 279

1 the same gravity allows to have the latter one under 5(I), but when you

2 approach Article 5 systematically, don't you have first to address the

3 question are the prerequisites of 5(D) fulfilled before you come to the

4 catchall crime in 5(I)? What is the rationale behind? I think both, and

5 unfortunately we have slightly different version in English and in French,

6 but what they have in common is the prefix a deportation or expulsion,

7 meaning that you are deported, expelled from the territory where the state

8 guarantees by its sovereignty your safety both in terms that you are not,

9 say, illegally extradited, that there is a social net, and so on and so

10 forth, that you are no longer under the shelter of your own state.

11 Therefore I fully agree with you that the destination in fact is

12 immaterial, but isn't it worthwhile to develop further international law

13 departing -- I don't really know whether it's departing because we've --

14 we found that the indictment in Nuremberg, for example, clearly alleged

15 deportation inside Germany, and so therefore the border seems to be not

16 relevant for this definition at that time, but isn't it true that when

17 interpreting a norm that you also have to take into account the real

18 circumstances in the world? And don't they have changed? And isn't it

19 true that it would be an advantage to have a clear definition that those

20 acts of mopping up inside a country falls under forcible displacement or

21 forcible transfer, whereas bringing a person over a border, this should be

22 qualified clearly as deportation or expulsion, and as the destination is

23 not -- is irrelevant, I think, for example, when you look on the map of

24 Europe, how would you qualify a forcible transfer or deportation to

25 Transdniestria? There is no border that's internationally recognised.

Page 280












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13 English transcripts.













Page 281

1 It's recognised by the Russian Federation and by Abkhazia.

2 So would this be enough? Is it really necessary to find out today

3 in a changed world that there is an international recognised border? Some

4 scholars say it's very difficult to clarify what is a de facto border,

5 whereas the -- how can we define it? But isn't it quite clear in this

6 case? Several times, the judgement and already the indictment speaks

7 about separation lines, Mostar divided, dividing Mostar. Indictment

8 paragraph 53, across the confrontation line. Military front line,

9 paragraph 23. So finally, wouldn't you agree that today the law has

10 developed to that end that not the de jure border but a de facto border

11 suffices because the rationale behind is in fact the same and only one

12 point you have not addressed, that's the question of permanent

13 displacement. I think in the definition also the mens rea element of

14 permanent displacement should be included. May I please have your opinion

15 on this? Thank you.

16 MR. KREMER: First of all I would submit with respect that the

17 submission that you just made on -- in favour of a de facto border is a

18 policy argument not a legal argument. We are dealing here with a legal

19 issue that must be interpreted by a court of law that must apply customary

20 international law. The authorities that we have provided to the Chamber

21 clearly demonstrate that a de facto border has no support, notwithstanding

22 the changing political times, that the situation here obviously had a

23 military confrontation line, it had what you would describe as a de facto

24 border, but at international law, under the laws and customs of war in

25 particular, it would not recognise the de facto border. And what our

Page 282

1 submission is based on primarily is that there has to be a recognition of

2 the two crimes: The unlawful transfer within the state, which is

3 recognised at customary international law in the Geneva Conventions and

4 onward, and a deportation from a state.

5 Our primary argument is based on the fact that over the last 60

6 years, the choice of words to describe these two types of conduct has

7 become merged into a single concept, forced transfer, forced

8 displacements, and the border has become irrelevant. And to the extent

9 that this Chamber found that in the Krnojelac decision it properly

10 interpreted customary international law. Our position moves from that and

11 relies on the fact that the concepts are merged and that deportation can

12 and should include the definition of forcible transfer within it, under

13 Article 5(D) but the primary position that we start from is that there

14 are -- there is one crime, that's a forced displacement, regardless of

15 where the person ends up, and the principle has to be honoured. And if a

16 de facto border is put into place, accepting that there is a 5(I) crime to

17 deal with the internal transfers within the territory of the government

18 that is doing the forcible displacing out of its territory, there is

19 complete coverage, but that's not the question that needs to be addressed

20 by this Chamber.

21 The question that needs to be addressed is in looking -- in

22 determining a border element, is it consistent with customary

23 international law? And the authorities point to the fact that a

24 territorial border or a border of occupation becomes relevant but the

25 border of occupation does not change the definition of the term, whether

Page 283

1 it's within the territory or outside of the territory within the territory

2 of the former state. It's only when the transfer is to another country

3 under the laws of war does it become a deportation in the context of the

4 Geneva Conventions. So our position is, as long as there is complete

5 coverage, either under the two crime option or the single definition

6 option, then international law has been honoured. If, as in the Stakic

7 decision, there is a void in the law because 5(I) is decriminalised and

8 there is no coverage within the territory of the occupier, then there is a

9 problem, and so in answer to your question I would submit that a de facto

10 border doesn't solve any problems; it probably creates more problems than

11 it resolves because of the questions as to where was the confrontation

12 line on a certain day? Is a confrontation line a territorial line? If a

13 person is deported from Mostar to Zagreb and they are asked where did you

14 get off the train, I was forced off the train in Zagreb, I think the Court

15 can take judicial notice of the fact that they are in another country.

16 The proof is simple. I hope I've answered your question.

17 The other -- the permanent intent question, if there is no border

18 requirement, then there is no mens rea requirement. Our position is that

19 there -- that this Trial Chamber, this Tuta and Stela Trial Chamber,

20 misinterpreted the provisions relating to evacuation. An evacuation makes

21 a displacement lawful. It doesn't impose into it an interpretive

22 definition that says that the transfer must be permanent. The intent

23 that's required is that the person must know and intend that the person is

24 being transferred from his home to another place. Where the person is

25 going, how the person gets there, and whether the person can and will come

Page 284

1 back or is intended to come back by the people organising it is something

2 that is not relevant. It's the participation, the ordering or

3 participation in the physical transfer and relocation of these people that

4 is the critical mental element that is all the crime requires.

5 JUDGE POCAR: Judge Guney, you want to put a question, please.

6 JUDGE GUNEY: You have just said that a de facto border cannot

7 solve the problem, you said, and it maybe even source of conflict. What

8 about generally recognised de facto borders, which is a concept followed

9 in many cases under international law?

10 MR. KREMER: The International Court of Justice spends years

11 trying to decide the borders of a state and borders are defined different

12 ways, by treaty, by convention, by commissions and determinations by the

13 International Court of Justice. A national border, if recognised, and

14 I --

15 JUDGE GUNEY: Not only recognised but generally recognised.

16 MR. KREMER: Generally recognised, has some issues to it, whether

17 that's comparable to a de jure border is something that I would -- I would

18 say is open to debate and whether a generally recognised border is

19 sufficient for customary international law terms to supplant the concept

20 of -- to the -- to another country becomes somewhat problematical. I

21 think that a generally recognised or generally accepted border, and I

22 would not say de facto border, I would say a generally accepted or

23 generally recognised border, may well be equivalent to a de jure border.

24 Depending on the definition. My problem in answering your question, with

25 respect, is that I don't understand the concept of a generally accepted,

Page 285

1 whether it's -- generally accepted de facto border. I would say generally

2 accepted --

3 JUDGE GUNEY: De facto border generally accepted.

4 THE INTERPRETER: Microphone, please.

5 MR. KREMER: I think that either we start from the -- the problem

6 that de facto border cannot be defined. And is not defined at customary

7 international law. A generally accepted border is. Whether it's de jure

8 or generally accepted, I think that's the comparison, not the starting

9 point being a de facto border, with all due respect.

10 JUDGE GUNEY: Thank you.

11 MR. KREMER: Thank you.

12 JUDGE POCAR: Please, Mr. Farrell, you may continue your

13 submissions.

14 MR. FARRELL: Thank you very much, Mr. President. I will be

15 dealing with the Prosecution's first ground of appeal, the ground of

16 appeal dealing with persecutions.

17 If I may just clarify Mr. President, I think we started sometime

18 around between 5 and 10 after. I'll certainly try to be within the time

19 frame of one hour, though I may ask for a few minutes over so that

20 Mr. Tracol and I can both address you today since we had incorrectly

21 anticipated that Mr. Kremer would be briefer in his submissions, at least

22 in answering questions. I'll certainly try but may at the end ask for a

23 couple of extra minutes. But I'll let you know at that time, if I don't

24 finish, Mr. President. Thank you.

25 The Prosecution's first ground of appeal, as set out in the appeal

Page 286

1 brief, is that the Trial Chamber erred in holding that certain crimes

2 committed by Mr. Martinovic did not constitute persecution, though finding

3 that they were -- the crimes were crimes against humanity. There is three

4 specific incidents raised in the Prosecution's brief, ones in relation to

5 the conviction under crimes against humanity pertaining to the beatings of

6 detainees, the second, once again, is for a conviction of crimes against

7 humanity for unlawful labour, that's for inhumane and cruel treatment as a

8 result of the labour of detainees within his area of responsibility, and

9 the third is also unlawful labour but it's the specific incidents of the

10 wooden rifles.

11 The issue before Your Honours if I may characterise it for you is

12 the correctness of the Trial Chamber's approach and the reasonableness of

13 their factual conclusions. It's the Prosecution's submission that the

14 Trial Chamber approached its task incorrectly and made factual conclusions

15 which no reasonable Trial Chamber could make. I will first start by just

16 considering the general factual or circumstantial findings by the Trial

17 Chamber in this regard and in the Prosecution's submission they are

18 compelling.

19 There was a widespread and systematic attack against the Muslim

20 part of the civilian population with the specific aim of transforming the

21 formerly ethnically mixed area in and around Mostar in into a Bosnian

22 Croat territory with an ethnically pure Bosnian Croat population.

23 Secondly, the Trial Chamber found that the acts or for which Mr.

24 Martinovic was convicted comprised part of there widespread and systematic

25 attack and his acts directly contributed to the overall aim of the

Page 287

1 campaign. The overall aim of the campaign was discriminatory. Trial

2 Chamber found that Mr. Martinovic with the knowledge of the attack decided

3 to pursue the goal of the attack; once again, the goal was discriminatory.

4 The Trial Chamber found that Mr. Martinovic carried out the arrest and

5 detention of the civilian population of Mostar on May the 9th and he did

6 it with discriminatory intent against Muslims. The Trial Chamber found

7 that Mr. Martinovic carried out forcible transfers from Mostar of

8 civilians and he did it with discriminatory intent against Muslims. The

9 Trial Chamber found that Mr. Martinovic participated in the plunder of

10 homes in Mostar, and he did it with discriminatory intent against Muslims.

11 The evidence of the trial is that Mr. Martinovic called detainees

12 who were taken from the Heliodrom for unlawful labour, discriminatory

13 names or derogatory or called them in derogatory terms. Specifically owe

14 called them balijas, which is a derogatory term for Muslims. He called

15 them fundamentalists or extremists. In my submission this clearly

16 exhibits discriminatory intent. Every time detainees were chosen for

17 unlawful labour, they were Muslim. The paragraphs for which the detainees

18 working in the area of Vinko Skrobo Brigade were paragraphs 263 to 273.

19 The paragraphs for the wooden rifles incident, the findings were at 274 to

20 292, and the beatings were at paragraphs 382 to 389. I have attempted to

21 look at all the victims listed in the footnotes for each one of the

22 findings in relation to the crimes against humanity found by the Trial

23 Chamber, and unless I'm mistaken, each one of the victims referred to in

24 the paragraphs related to the findings of those three incidents were

25 Muslim.

Page 288

1 Of the victims for which Martinovic is convicted in these three

2 incidents for unlawful labour and beatings, not one is a Bosnian Croat

3 detainee. And despite this powerful and compelling evidence, some of it

4 which I will come back to, the Trial Chamber concluded that for every

5 single incident of unlawful labour and beatings there was no

6 discriminatory basis for the choice of Muslim detainees.

7 The Trial Chamber concluded that it had not been proven in each

8 specific incident that the crimes were carried out on a discriminatory

9 basis. What I'll come back to is the Trial Chamber's approach here, which

10 is that it approached each incident separately. They attempted to

11 identify on a case-by-case basis whether the crimes were carried out with

12 discrimination. I'll come back to the paragraphs but if you look at

13 paragraph 693, which is the wooden rifle incident, the Trial Chamber

14 simply concluded at 693 in the second-last sentence, "However no evidence

15 was introduced regarding the grounds upon which the four prisoners

16 involved were selected." With respect, it will be the Prosecution's

17 submissions and I'll go through paragraph 693 and, more importantly, 692

18 to indicate that the focus on determining whether or not there was

19 evidence of the basis upon which these four were selected was the wrong

20 approach. This approach of looking simply and solely as to the basis of

21 their selection erred by focusing on the specific incident, and the

22 specific basis on which they were chosen at that specific time. With

23 respect, that's much too narrow. If you look at paragraph 692 of the

24 judgement, the second full sentence states, "The Prosecution has, however,

25 not led evidence sufficient evidence, to prove that the prisoners were

Page 289

1 taken to perform labour on the basis of their specific religious,

2 political, or racial background." With respect it's almost as if the

3 Trial Chamber's analysis is frozen in time. Limiting itself to asking the

4 question why were these Muslim detainees chosen? The question they should

5 have asked themselves is s there any other reason other than the fact that

6 they were Muslim?

7 There is no reference in these two paragraphs to the context of

8 the attack and there is no reference to the circumstances surrounding the

9 use of Bosnian Muslims in unlawful labour and human shields. My

10 submission's because they focussed on the specific incident. The context

11 is relevant the circumstances are relevant and this Appeals Chamber in the

12 Kovacka appeal judgement at paragraph 366 stated "discriminatory intent

13 may be inferred from the context of the attack, provided that it is

14 substantiated by the surrounding circumstances at the time."

15 What were the factual elements of the context in this case? I've

16 mentioned many of them at the beginning of my submissions but it was the

17 general discriminatory nature of the attack that the attack was only

18 against Muslims, that those detained were Muslims, that those taken out

19 for unlawful labour were Muslims, and that Martinovic, with knowledge of

20 the discriminatory nature of the widespread and systematic attack, decided

21 to pursue the goal. Did any of these find their way into the judgement?

22 In my submission in relation to these paragraphs, no.

23 What are the surrounding circumstances that should have been taken

24 into account. As you're aware in the Krnojelac Appeals Chamber judgement

25 the Court indicated that the surrounding circumstances could substantiate

Page 290

1 the finding and they looked at the operation of the prison in Krnojelac,

2 the systematic nature of the crimes, and, interestingly, in Krnojelac they

3 looked at the general attitude of the perpetrator. Not whether in this

4 individual case he indicated that they were taken out at that specific

5 date for the specific reason that they were Muslim, but his general

6 attitude as a circumstance. In this case, the surrounding circumstances

7 include that only Muslims were used in the incidents referred to by the

8 Trial Chamber in relation to Mr. Martinovic, the derogatory treatment of

9 Muslims by Mr. Martinovic, and that he acted with discriminatory intent in

10 evicting them and forcibly transferring them and plundering them.

11 It's the Prosecution submission that if you look at the context of

12 the circumstances and the treatment there is no reasonable doubt that it

13 was discriminatory. But let me look at paragraph 692 again with you, if I

14 may, and take you through some of the evidence upon which the Court found

15 that there was -- the Prosecution had not led sufficient evidence to prove

16 that they were taken to perform labour. Paragraph 692 is based on

17 findings regarding the labour of persons in the area of Mr. Martinovic's

18 brigade and that's -- those findings, the factual findings, start at

19 two -- at paragraph 268. If I could just take you to paragraph 268,

20 Your Honours. That's at page 94.

21 The first sentence of paragraph 268 of the judgement indicates

22 that numerous -- "there was numerous testimonies from prisoners who were

23 forced to perform military support tasks in extremely dangerous conditions

24 such as digging trenches near the confrontation line." Footnote 722.

25 Let's look down to paragraph 722. The second witness it mentions says

Page 291

1 according to witness J the work consisted of filling sandbags and digging

2 trenches. Let's just go to the testimony of Witness J and if I can ask

3 that the testimony of Witness J be pulled up on screen. Is the testimony

4 before you, Your Honours? Is the testimony before you, Your Honours? I'm

5 sorry. It's on screen? Thank you.

6 The Court had referred to Witness J in footnote 722 in support of

7 its conclusion that there was unlawful labour in the digging of trenches

8 near the confrontation line. Witness J's testimony: In relation to that

9 incident, Witness J speaks about when he was picked up and when he went to

10 work for Martinovic. He was picked up by Martinovic's driver at the

11 Heliodrom and was taken to Stela's command or headquarters. He was asked

12 the first part of the passage, which is before you, as the end of a

13 question. "Did you ever hear Stela use any particular terms or language

14 in referring to Muslims?"

15 The answer: "A term? He called us extremists and at times

16 balijas but mostly he referred to us as extremists.

17 "Now in connection with this Stela, just so the record is clear,

18 did you hear the name in reference to this same person Martinovic?

19 "I did, yes. His full name is Vinko Martinovic and his nickname

20 is Stela."

21 The Trial Chamber though, referring to Witness J, for the purpose

22 of finding that he was used for unlawful labour and fortifications in 262

23 concludes later in 693 that there was no evidence that witness J was

24 treated or was chosen because of his religious or racial or Muslim

25 background. With respect, this demonstrates in my submission that it's

Page 292

1 clear the way he was treated.

2 Now, whether or not in every instance the Prosecution can

3 demonstrate that each time he was taken out that there were some words

4 said to him from which you could draw the direct inference is a different

5 matter. That's where the Trial Chamber erred.

6 If I can keep at paragraph 268, once again, footnote 722, the next

7 witness referred to in footnote 722 is Witness PP, once again for the

8 purpose of demonstrating the findings that there was unlawful labour.

9 Let's look at Witness PP's testimony. If you go to his testimony in the

10 transcripts at paragraph 6086, Witness PP was asked by the Prosecution

11 about his involvement with Mr. Martinovic, Stela, in relation to the work

12 he had done. If I can just read to you the passage that is before you.

13 "First of all, how do you know that this man was Stela?"

14 Answer: "Because I had seen him before."

15 Question: "And when had you seen him before?"

16 Answer: "I had seen him when coming to work, when he came to

17 verbally abuse us, calling us names, balija, cattle, things like that,

18 when he came to advise us as we were digging or doing some other kind of

19 work. Mostly in the morning when we were brought to work he would show up

20 so I knew his face. I knew that this was Stela."

21 Once again the Trial Chamber though relying on Witness PP for the

22 purpose of finding that there was unlawful labour, apparently looked at

23 the specific incident and not at what the witness said in terms of the

24 circumstances surrounding their labour.

25 If I can take you to footnote 724. Under 724, related to the

Page 293

1 Trial Chamber's findings regarding fortification labour, it's referred to

2 and relied on Witness OO. Once again if I can just take you to testimony

3 of Witness OO, he talks about when he would arrive, after being taken from

4 the Heliodrom he talks about the time period, and he says that "I remember

5 well when we arrived there. We were 20 to 30 men per group. He would

6 line us up outside his command which was a red building. On such

7 occasions, most of the men would be mistreated by Stela. He would call us

8 extremists, fundamentalists and various other names."

9 I intend to make the same points with respect to --

10 JUDGE POCAR: Judge Shahabuddeen would like to put you a question.

11 JUDGE SHAHABUDDEEN: Mr. Farrell, if the Accused calls some

12 detainees who are selected to labour, "cattle" or "extremists," does it

13 follow that they were selected for labour because the Accused thought of

14 them as cattle or as extremists?

15 MR. FARRELL: The point I was trying to make was that the names

16 that were called were reflective of their being Muslims, not that they

17 were the ABiH army which is -- which I will come to, which is the

18 rationale given by the Trial Chamber. And that this showed his -- this

19 language, cattle or whatever other words you want to use, showed his

20 treatment against them in the way he dealt with them, yes, and that

21 extreme -- I'm sorry, you have a follow-up question.

22 JUDGE SHAHABUDDEEN: Let me ask you a related question. Were

23 there detainees from other nationalities who might have been selected to

24 do labour but who were not selected to do labour?

25 MR. FARRELL: In the detention centre in the Heliodrom there were

Page 294

1 also Bosnian Croat detainees and they were not selected. Thank you.

2 In light of the time I won't pull up on screen the passages but I

3 will simply explain to you the remaining passages that I wanted to refer

4 to and it's actually in relation to footnote 734. Once again this is to

5 support a finding by the Trial Chamber for its finding that detainees were

6 forced to work and that they were involuntary, and the transcripts at

7 paragraph 1679 indicates that when he arrived the following words were

8 said to him as he was sitting there after being brought to the Bulevar.

9 This is transcripts 1679. "When he saw us," and the he is Stela, "when he

10 saw us sitting there he immediately resorted to foul language and more or

11 less said stand up balijas, do you know who you have come to work for?

12 And he said his name was Stela."

13 In footnote 736, there is reference to Witness K, and this witness

14 is referred to for the atmosphere that surrounded the persons doing labour

15 along the confrontation lines. I would submit that the atmosphere

16 surrounding the use of detainees for labour on the confrontation lines is

17 exactly the type of contextual, or, actually in this case, circumstance

18 evidence that the court would look at. Witness K testified in private

19 session so I will not point out in public proceedings what the statements

20 were. But if you look at transcripts 1581 to 1582 you'll see that in the

21 passages that I've previously read to you, the same comments are made in

22 the context of the atmosphere for persons conducting labour.

23 A few more points, as I've run out of time, to allow Mr. Tracol to

24 say a few things. Three of the witnesses, Witness H, Witness KK and

25 Witness YY were civilians. In the wooden rifle incident there were four

Page 295

1 persons who were taken to use for wooden rifles. Three of them testified.

2 Of those three, two of them were HVO members. They were actually Muslim

3 members serving in the HVO who were arrested. So the statement that the

4 Trial Chamber makes in the footnote to paragraph 692 that they were chosen

5 because they were members of the ABiH is not true. One of the witnesses

6 who testified, Witness I, about the wooden rifle incidents also said that

7 he was a Muslim member of the HVO. He had been in the Territorial

8 Defence, was placed under the command of the HVO, had actually fought with

9 the HVO and then was arrested because he was must almost and then sent to

10 the Heliodrom. All of them, all four of the witnesses in relation to the

11 wooden rifle incidents speak of derogatory comments that were made.

12 There is no basis for differentiating what happened to these four

13 victims previously and to what happened to them when they were committing

14 unlawful labour. There is nothing that would cause the cost to have a

15 reasonable doubt as to the discriminatory nature of the use of these

16 detainees. And as the Krnojelac appeals Chamber stated a case by case

17 approach, and in my submission, as in this case, demonstrates that the

18 Trial Chamber was misled, and it was misled by its own approach to the

19 evidence. The passage which is found in paragraph 692, footnote 1685,

20 where the Court says that as a footnote that to support its findings, that

21 there wasn't discriminatory intent, at footnote 1685 says "the Chamber is

22 satisfied that the prisoners were used," this is all the prisoners in

23 relation to the unlawful labour, "were used because Vinko Martinovic would

24 have used the enemy to perform the dangerous tasks rather than their own

25 soldiers," and Witness SS testified that he believed he was selected

Page 296

1 because he had served in the ABiH army.

2 That may very well be the case and it may very well be the case

3 that in that circumstances if he was selected as a member and targeted on

4 that basis that the Trial Chamber might have had a reasonable doubt. The

5 error is extrapolating from one witness's testimony about one incident

6 that that witness experienced to the findings in relation to every single

7 detainee for whom the Court found that they had committed unlawful labour.

8 The evidence that I put before you today demonstrates, in my submission,

9 respectfully, that the Trial Chamber was clearly wrong. Those are my

10 submissions on the issue of persecution. I see that I'm close to the end

11 of time. I would just ask for a few minutes for Mr. Tracol to address you

12 on cumulative convictions, Mr. President.

13 JUDGE POCAR: Well, you still have three minutes to go.

14 MR. FARRELL: I'll ask Mr. Tracol to be brief but I may ask for a

15 few more.

16 JUDGE POCAR: Please, Mr. Tracol.

17 MR. TRACOL: [Interpretation] Your Honours, I will now address the

18 fourth ground of appeal of the Prosecution relating to cumulative

19 convictions. This ground of appeal relates to the error committed, an

20 error committed on a point of law by the Trial Chamber by not entering a

21 conviction for Naletilic based on the same facts for torture as a crime

22 against humanity pursuant to Article 5 of the Statute, 5(F) of the

23 Statute, for mistreatment of the witnesses FF and Z, count 9 of the

24 indictment, in addition to a conviction for persecution pursuant to

25 Article 5(H) of the Statute, count 1 of the indictment.

Page 297












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13 English transcripts.













Page 298

1 The Trial Chamber refused to enter a cumulative conviction for

2 torture on the following legal ground. In paragraph 724 of the judgement,

3 which I shall now quote, "when an accused is found guilty of persecution

4 and another crime against humanity, the conviction that is upheld is that

5 of persecution." The position of the Prosecution run as follows: The

6 Trial Chamber has erred in law whether it applied the cumulative

7 conviction test as it has been construed by the Appeals Chamber in the

8 relevant jurisprudence. The findings of the Trial Chamber in paragraph

9 720 to 728 of the judgement do not comply with the findings of the Appeals

10 Chamber in paragraph 1040 to 1043 in the Kordic and Cerkez judgement. As

11 the Appeals Chamber concluded in the Kordic and Cerkez -- concluded the

12 discriminatory actor should be proven as well as the act that the act or

13 omission was committed with an intention to discriminate. On the other

14 hand, whereas torture is enough to establish that a fundamental right has

15 been denied or infringed upon, torture is not required to convict an

16 accused for persecution. Persecution therefore contain elements which are

17 materially distinct from torture. In addition, torture requires proof of

18 the fact that there has been infliction by an act or an omission of pain

19 or acute suffering, both physical and mental, the material element; and on

20 the other hand, proof of a specific intent, namely with a view to

21 obtaining information or confession to punish, intimidate, or force a

22 victim or third party or to discriminate for whatever reason. This

23 concerns mens rea as regards the definition of torture. I refer to the

24 Kunarac judgement paragraph 142 to 144.

25 Proof of these two elements is not required for persecution.

Page 299

1 Torture, therefore, requires proof of two materially distinct elements

2 from persecution. The Prosecution submits that if it applies the same

3 rationale, the grounds in the Kordic and Cerkez judgement would logically

4 give rise to the finding of the Appeals Chamber that cumulative conviction

5 for persecution and torture is legitimate in that it relies on the same

6 facts pursuant to Article 5 of the Statute.

7 The appropriate -- if cumulative conviction were to be applied in

8 the correct manner, the Appeals Chamber should enter a conviction for

9 persecution on the one hand, according to 5(H) of the Statute, in 5(F),

10 torture as crimes which would be legally distinct. This complies with the

11 Kordic and Cerkez judgement. In the interests of justice it would not

12 cause Naletilic to be justifiably prejudiced. That's why I have finished

13 and concluded, Your Honours. The Prosecution requires from the Appeals

14 Chamber that you enter a conviction for torture as a crime against

15 humanity, count 9 of the indictment, in addition to the conviction entered

16 by the Trial Chamber -- by the Trial Chamber for persecution in that it

17 relies on the same facts for persecution pursuant to Article 5(H) of the

18 Statute, count 1 of the indictment. I'm prepared to answer any of your

19 questions, of course.

20 JUDGE POCAR: [Interpretation] There are no questions from the

21 Bench, Mr. Tracol, so this ends the submission of the Prosecutor.

22 [English] We will have a response by counsel for Naletilic, we have now 30

23 minutes and then after the break another 30 minutes for its submission.

24 So, please.

25 MR. HENNESSY: Thank you, Mr. President.

Page 300

1 As to the Prosecution's ground on persecution, that does not apply

2 to Mr. Naletilic. Of course I'll have no remarks about that. The second

3 ground of appeal of the Prosecution as to unlawful labour has been

4 withdrawn. Of course I have no response; no response is needed to that.

5 As to the deportation issue, Mr. Naletilic and Mr. Martinovic stand in the

6 same position on that point of law, so for purposes of expediency, if you

7 like, the Naletilic Defence will rely on the submissions to be made by

8 Mr. Kerns on that issue. So all I have to speak about now is the issue of

9 the cumulative conviction which is now sought by the Prosecution.

10 As I understand their argument, what they desire now is a

11 conviction for persecution predicated on torture for which there has

12 already been a conviction. I respectfully submit that this issue has been

13 virtually identically dealt with in the Krstic appeal case and four of

14 this Chamber were on that particular Appeal Chamber as well, and in that

15 case, the Prosecution sought in a similar fashion, multiple convictions;

16 that is, they sought a conviction, they -- at the trial level recognition

17 achieved a conviction for persecution based on murder and yet on appeal

18 asked not only that -- they not only wanted to obviously uphold that

19 conviction for persecution, they also wanted a murder conviction upon

20 which that persecution conviction was predicated.

21 The Chamber disallowed that point and found that such a cumulative

22 conviction as sought in the Krstic appeal case would be improper under the

23 established law of the Tribunal, and the Appeals Chamber relied on a case

24 that I am familiar with the Blockburger case from the United States

25 Supreme Court. And pardon me if I sound pedantic here just briefly. The

Page 301

1 Blockburger test as -- as -- is essentially set out and in the

2 Prosecution's brief also referred to as the Celebici test, which says that

3 multiple convictions entered under different statutory provisions but

4 based on the same conduct are permissible only if each statutory provision

5 involved has a material -- materially distinct element not contained in

6 the other.

7 I try to think simply when it comes to these things and what that

8 means is this: Is that a -- you have two offences, let's say, one that

9 has the elements, A, B, and C. You have another offence which has the

10 elements of A, B, C, and D. The Blockburger test tells us that

11 convictions for both of those offences based upon the same conduct cannot

12 stand. The offences must -- in order to support cumulative convictions

13 each of them must have an element that the other does not. For example,

14 if one offence has the elements A, B, C, and another offence has the

15 elements A, B, D, fine, the convictions, multiple convictions may stand.

16 What we have presented to us today by the Prosecution is the former not

17 the latter circumstance, that that is that they are seeking now a

18 conviction for what would be characterised as a lesser included offence.

19 A lesser included offence under the doctrine of Blockburger. They seek a

20 conviction for torture which is necessarily already included in the Trial

21 Chamber's conviction of Mr. Naletilic for persecution. As such cumulative

22 convictions in this instance are not warranted and, I suggest, not

23 permissible under the law of this Tribunal. Thank you. May I have one

24 moment?

25 JUDGE POCAR: May I ask you a question in this context, Mr.

Page 302

1 Hennessy? Are you referring in making your point to the Blockburger test?

2 Are you referring to the Blockburger test, let me start with that. You

3 referred it as concerning the statutory provisions. Now, are you dealing

4 now with the statutory provisions or with the concrete situation found by

5 the Trial Chamber? Can you clarify me about that?

6 MR. HENNESSY: I'll try if I understand your question. That

7 necessarily the Blockburger test, it begins and centres on the facts, of

8 course, because we don't have a situation where Blockburger concerns are

9 triggered at all unless we are seeking to punish twice for the same

10 conduct. So the facts -- what we are talking about -- if we are talking

11 about the same set of facts, multiple convictions cannot be obtained

12 unless the two offences in question each have a different element. Now,

13 if you're asking -- if, well, let's say beyond the Statute under practical

14 concerns, if even practically speaking the elements are the same,

15 Blockburger is still triggered. I'll speak concretely now as to what the

16 Prosecution seeks. What the Prosecution is seeking is a cumulative

17 conviction, a second conviction, for conduct which they have already

18 obtained a conviction for, and that conviction is necessarily predicated,

19 that is the persecution conviction, is necessarily predicated on the

20 additional conviction which they now seek. As with my example with the

21 elements being A, B, C or A, B, C, D, it is the former situation. They

22 are seeking a conviction for a lesser included offence of persecution

23 under these particular circumstances.

24 JUDGE POCAR: So if I understand you well, you are challenging the

25 definition of the crimes or are you challenging the -- remain with my

Page 303

1 question. Are you challenging the definition of the crimes of torture and

2 persecution in the sense they would not have different elements except

3 your definition, your example of A, B, C or A, B, D, so you are

4 maintaining that torture would have elements AB, say, and persecution

5 would have A, B, C, but you don't find a different shading element in

6 torture? Is that what you're saying?

7 MR. HENNESSY: I am, Judge, Your Honour, excuse me.

8 JUDGE POCAR: But I didn't see you -- I didn't hear you argue that

9 exactly. Would you be more -- give your arguments on that point?

10 MR. HENNESSY: Well, and I get back to -- my fact-based argument

11 here is that what the Prosecution is seeking is a second conviction for

12 conduct they have already obtained a conviction for. That being

13 persecution. And as I understand the Prosecution's argument, that even

14 though a conviction for persecution has been obtained based on torture,

15 they now want a separate conviction based on that same torture. That is

16 how Blockburger is triggered, that is how the appeal judgement in Krstic

17 is triggered and in my submission, both of those authorities dictate that

18 a cumulative conviction is not permissible in this circumstance.

19 JUDGE POCAR: Judge Shahabuddeen.

20 JUDGE SHAHABUDDEEN: Mr. Hennessy, may I ask you one question,

21 which is like this: Is it conceivable that there could be torture without

22 persecution? That's possible?

23 MR. HENNESSY: Absolutely. And if I may, to continue along that,

24 what we have here and what I understand the Prosecution to be seeking is

25 now that they have obtained a conviction predicated on torture committed

Page 304

1 under discriminatory grounds, on a discriminatory basis, that being

2 persecution, they now also want the lesser included offence of torture.

3 Again, I say that that's impermissible pursuant to the Krstic appeal

4 judgement.

5 Are there any more questions?

6 JUDGE SHAHABUDDEEN: You did invite any other questions, so let me

7 ask you this. Would you say that persecutions as a crime is directed to

8 different element of torture? To build on what you just accepted, there

9 can be torture without persecutions. Are the two crimes directed to

10 different factual elements?

11 MR. HENNESSY: The answer is both yes and no, and let me expand on

12 that. That -- I think it's fair to say that every act of torture is

13 discriminatory in some respect. But the Statute of the Tribunal elevates

14 torture from torture to being a crime of persecution if the discriminatory

15 basis is for certain particular reasons, racial, political, and otherwise.

16 So while, yes, I can't practically speaking every torture must necessarily

17 involve some discriminatory process, but only certain types of that --

18 only certain times of discrimination elevate torture to persecution. May

19 I have a moment to consult with my co-counsel?

20 JUDGE POCAR: Sure, you may consult.

21 [Prosecution counsel confer]

22 MR. HENNESSY: That concludes our submission.

23 JUDGE POCAR: Well, then I understand you don't need the half an

24 hour at the beginning of the afternoon for that?

25 MR. HENNESSY: Not unless you want me to keep talking,

Page 305

1 Your Honour.

2 JUDGE POCAR: Okay. That's fine. So we can take our break now

3 and we'll reconvene at 2.30. 2.30 for the response by Martinovic.

4 The meeting is adjourned.

5 --- Break taken at 12.26 p.m.

6 --- On resuming at 2.33 p.m.

7 JUDGE POCAR: Good afternoon to everybody, and we will now

8 continue with the response by Martinovic. So I'll give the floor to

9 counsel for Martinovic for their response.

10 MR. KERNS: May it please this honourable court and may it please

11 my friends of the Prosecution counsel. Your Honours, as you have heard my

12 name is Kurt Kerns and I have the privilege of responding to the

13 Prosecution's accusations and their appeal this afternoon. We will argue

14 in opposition to the Prosecution's various issues that they've raised.

15 Although the Prosecution originally raised four issues in their appeal

16 I'll only be discussing the first issue and the third issue because,

17 again, two has been withdrawn and four has nothing to do with

18 Mr. Martinovic.

19 The first ground establishes that the Prosecution basically seeks

20 to create a judicially created presumption for which there is no legal

21 authority. Although Mr. Martinovic was convicted of persecution, the

22 persecution claims that the Trial Chamber erred by not inferring

23 discriminatory intent on to three specific instances of wrongful conduct

24 that they allege. I've listened to my learned friend of the Prosecution

25 submit to this Court how the Krnojelac appeals judgement supports his

Page 306

1 position because in that case the Appeals Chamber did find that there was

2 an error of fact in the finding of discriminatory intent.

3 My submission is that a close and a full reading of the Krnojelac

4 appeal judgement in actuality supports the Defence's position in this

5 case. Why? Because right in paragraph 184 of the Krnojelac judgement,

6 that court specifically held that discriminatory intent cannot be inferred

7 from as applying to a specific wrongful act just by the general

8 discriminatory nature of an attack. In fact, the appellate Chamber said

9 in that case that discriminatory intent can be inferred from such a

10 context under conditions. The specific wording is "as long as

11 circumstances exist surrounding this wrongful act that substantiate

12 authenticate that inference, that general inference." There have to be

13 facts that substantiate the general inference. In other words, you just

14 can't infer discriminatory intent from a general discriminatory nature of

15 an attack. There must be specific facts surrounding the specific incident

16 that substantiate, back up, if you will, that inference. Now, in the

17 Krnojelac case there were facts that substantiated that inference and

18 that's what the Court found. In this case, that evidence is completely

19 lacking and I'll speak in my submissions why that evidence is completely

20 lacking.

21 A full review of the underlying facts in Vinko Martinovic's case

22 substantiate in fact a complete lack of discriminatory intent in how these

23 prisoners were brought to the front line and how these prisoners were

24 brought to his headquarters. The -- all three of these instances for

25 which the Prosecution complains, while they may be described as rude or

Page 307

1 belligerent or inappropriate or unnecessarily violent, what they cannot be

2 described as is discriminatory against the Muslims based upon religious,

3 political or racial grounds.

4 I'd like to focus on the three instance which the Prosecution

5 focuses on, specifically in paragraph 2.2 of the Prosecution's brief.

6 They are described by the Prosecution as, first, beatings of the

7 detainees at headquarters; secondly, wrongful labour; and thirdly, wooden

8 rifle incident or wooden rifle incidents, depending on who you listen to,

9 but at least here we are dealing with just one wooden rifle incident.

10 Paragraph 382 through 389 of the trial judgement discuss the underlying

11 facts of this first case for which the Prosecution complains.

12 At paragraph 677 of the trial court judgement, that trial court

13 correctly found that no beatings at the headquarters were carried out on

14 discriminatory grounds. In fact, they concluded exactly the opposite,

15 that these beatings were random, quote, "Without religious, political or

16 racial background." And that was the word that they used, no background

17 to support those facts.

18 The Prosecution in its appeal completely ignores two very

19 important key considerations for this Court to decide. The first, how

20 were these detainees chosen, if at all, by Vinko Martinovic? Secondly, is

21 there evidence in the record of non-discriminatory motives as to these

22 three incidents? Let me address just the evidence that the Trial Chamber

23 felt was important enough to note in their own written judgement.

24 Paragraph 265 of the trial judgement discusses how the Chamber

25 found that detainees were taken from the Heliodrom to Vinko Martinovic.

Page 308

1 It was alleged that a man named Dinko Knezovic would go to the Heliodrom,

2 pick up detainees and the extent of the order that the Trial Chamber said

3 came from Vinko was go get X number of men. Not go get ten Muslims, just

4 go get ten men. It needs to be recalled that the Heliodrom was originally

5 a military prison. The Heliodrom, it must be understood, is not

6 comparable to the KP Dom detention facility in the Krnojelac case where

7 Serbs in the Krnojelac case were separated from non-Serbs and only

8 non-Serbs were being discriminated against as a matter of policy. We

9 don't have that situation here. Initially, there is no evidence before

10 the Trial Chamber or before this Court to suggest that Vinko Martinovic

11 had any say in how the Heliodrom, number 1, housed prisoners, or secondly

12 how the Heliodrom sent prisoners his way, unlike the accused in Krnojelac

13 where he was actually working at the detention centre. There is evidence

14 that HVO prisoners and Muslim prisoners were held in the same section of

15 the Heliodrom as well, unlike in the Krnojelac case. Transcript 6541.

16 There was no policy at the Heliodrom to only mistreat Muslim

17 prisoners unlike the KP Dom and the Krnojelac case and secondly there was

18 no evidence to suggest that Vinko, number 1, knew anything about it and,

19 number 2, had any say in the matter. While it is true that the majority

20 of the detainees in the Heliodrom were in fact Muslims, it is also true

21 that the majority of the forces in the ABiH were Muslim. So when Vinko

22 allegedly says bring me ten men or 20 men or 30 men, how can one say that

23 they are being targeted based upon racial, religious, or political views?

24 As I mentioned the Prosecution also ignores completely in its

25 submissions actual evidence of non-discriminatory intent, and asks this

Page 309

1 court to impose on appeal discriminatory motives, in spite of actual

2 evidence of non-discriminatory motives. Let me show you some examples.

3 In the beating incident for which the Prosecution complains, one of the

4 detainees was found hit and the explanation is found in paragraph 387 of

5 the trial judgement. It says he was beat because he had been found

6 hiding. That was the motive. Another was alleged that a man was punched

7 and a witness testified that this man was punched and hit because he had

8 made a comment about my client's father and he refused to let go of a bag

9 when he was getting on a bus. This is referred to as this Professor

10 incident found at paragraph 386 of the trial judgement, specifically

11 footnote 1010. There is specific proof in these incidents that they were

12 not done with discriminatory intent. Now, while these facts, if proved,

13 may have constituted cruel treatment, the crime of persecution has a

14 mandatory element, an additional element that must be proved, not just

15 proved but proved beyond and to the exclusion of all reasonable doubt and

16 that is this discriminatory intent. One cannot meet that burden here

17 today on appeal through a general overall inference of discrimination.

18 I want to mention the language of the Krnojelac appeal again

19 because again it supports my client's position. At paragraph 184, the

20 appellate Chamber said that in determining the existence of discriminatory

21 intent the Trial Chamber can consider, and I quote, "The general attitude

22 of the perpetrator." What did the Trial Chamber know about Vinko

23 Martinovic's general attitude? It was cited in the judgement. It was

24 even cited specifically in their summary. He was brought up in an

25 ethnically diverse area of Mostar called Rodoc with friends that he worked

Page 310

1 in close association with that were Muslims. He worked in close

2 association with Muslims, the Court found. He lived in close association

3 with Muslims. When the conflict in Mostar began against the Serb and

4 Montenegrin army, he fought alongside the Muslims as comrades in arms. A

5 quote from the Trial Chamber, "He was never engaged politically." He was

6 a local Mostar boy with a basic education, found specifically at paragraph

7 37 of the trial court's summary judgement.

8 In Krnojelac the Appeals Chamber in the very last sentence of

9 paragraph 184 holds that in discerning discriminatory intent a fact finder

10 can consider, and I quote, "the general attitude of the perpetrator." If

11 you just plug in a word search into this huge 20.000-page transcript,

12 general attitude, what you're going to find when it relates to Vinko

13 Martinovic is that several witnesses are popped up saying, "His general

14 attitude was that he treated BH Muslims and BH Croats the same." The

15 words from Krnojelac and the words from the trial court and the words from

16 the witness all match as to his general attitude. His general attitude

17 was the same towards BH Muslims and BH Croats. Trial judgement 757

18 confirmed -- at paragraph 757 confirmed witnesses testifying to that

19 effect.

20 Therefore, while the Trial Chamber did go on to say, Well, but

21 Vinko wasn't as nice as he should have been to most Muslims, and he should

22 have been more helpful to others, there is substantial evidence in this

23 record and in the facts of this case for the fact finder to rule and say

24 to the Prosecution, Prosecution, we are not convinced beyond a reasonable

25 doubt as to these three acts for which you complain because you did not

Page 311

1 establish that in those three acts there was discriminatory intent.

2 Other facts that substantiate a lack of intent are found at

3 paragraph 384 of the trial judgement. The Trial Chamber "accepts that

4 Vinko helped and protected some Muslim prisoners." Footnote 1.000 lists a

5 series of witnesses who spoke about how Vinko Martinovic protected them

6 and helped them, his Muslim neighbours. He hid them from forces in his

7 basement. He paid them and when one was injured he actually took him to

8 the hospital very quickly. It was the testimony of these Muslim witnesses

9 on Vinko's behalf.

10 Footnote 1.718 discusses how many Muslims wanted to go to the --

11 wanted to go to Vinko Skrobo's unit because they felt protected and safe

12 there versus anywhere else. These were Muslim witnesses testifying to

13 that effect. The point being that the Trial Chamber had ample evidence to

14 support its decision that proof of discriminatory motive was lacking. The

15 Krnojelac decision is supportive. Why? Because that Chamber held that

16 the court could consider the overall evidence to determine if there is

17 discriminatory intent.

18 The other two incidents that the Prosecution asks this Court to

19 essentially convict by inference involve wrongful labour, referred to in

20 paragraph 692, and this wooden rifle incident referred to in paragraph 693

21 of the trial judgement. The Prosecution seems to focus on the wooden

22 rifle incident a little bit more so let me address that. Again, how were

23 these detainees selected according to the Trial Chamber's findings? A man

24 named Dinko Knezovic goes to the Heliodrom and asks for 30 prisoners. Not

25 30 Muslim prisoners, just 30 prisoners. Just 30 people. Mr. Knezovic

Page 312

1 then, according to the facts the Trial Chamber relied on, took these 30 to

2 the headquarters of the Vinko Skrobo ATG. What was the Prosecutor's

3 evidence of Vinko Martinovic's involvement in their selection? The trial

4 court noted it at paragraph 276, at the top of page 98 of the trial

5 judgement and you have it. Vinko Martinovic then ordered Ernest Tadic to

6 select four people of those 30. That's it. So what you have is a man

7 named -- I'm going to miss pronounce his name, Dinko, going over to the

8 Heliodrom bringing back some people and then Vinko says to a guy named

9 Ernest, "Ernest, pick four." Now, tell me how that is done on the basis

10 of discriminatory intent? Even if all of the facts that you hear in this

11 trial judgement are considered true, which we don't concede. All that was

12 alleged was that Vinko said out of 30 prisoners, "Ernest, get four of

13 them." There is absolutely zero evidence that these men were targeted

14 with specific discriminatory intent. The Trial Chamber found very

15 specifically that while this wooden rifle incident constituted unlawful

16 labour, in fact convicted of that, they did not find an additional crime

17 of persecution. Why? Because no evidence was adduced. In fact, there

18 was a tide of evidence to the contrary, which they could not just put out

19 of their mind.

20 Now, my learned friend the Prosecutor argues, well, let's just

21 infer it. Let's just assume it. Because there was an overall

22 discrimination and because he used words like balija and extremist on a

23 few occasions. After all, the argument goes, Muslims were discriminated

24 generally and victimised generally, and in fact they argue Vinko was even

25 convicted of persecution as it related to these unlawful transfers. So

Page 313

1 the argument of the Prosecution goes that when Vinko says "Dinko bring me

2 30 men and Ernest pick four of them," what he really meant to say was,

3 "But make sure they are Muslims because I have the intent to

4 discriminate," which does not make sense and I submit that to this

5 honourable court those submissions must fail.

6 Why were these detainees used? The Trial Chamber again made

7 specific findings of fact and you'll recall that one of the very first

8 things we heard when we came in here yesterday morning was that the Trial

9 Chamber doesn't evaluate the entire facts de novo, they are afforded

10 deference. What were the Trial Chamber's factual findings? Footnote

11 1685, Your Honours, is very key to this issue because it flat out says

12 that the Chamber is satisfied. Note the word satisfied. That means they

13 are convinced that the prisoners were used because Vinko Martinovic would

14 have rather used the enemy soldiers than his own soldiers to commit

15 dangerous tasks. They were satisfied on the facts that that was the

16 motive, that that was the reason. Yet the Prosecution submits that in

17 spite of the satisfaction, in spite of being convinced of this, that there

18 is a huge miscarriage of justice here. Again, at paragraph 694 of the

19 trial judgement the Court found no evidence has been adduced that these

20 prisoners were selected on the basis of their religious or political


22 The entirety of the facts, all of the facts that came out in

23 trial, satisfied them that that was not done for that reason.

24 Your Honours, every war in the history of man kind has, as at its core,

25 some element of discrimination. But not every bad act within a war

Page 314












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Page 315

1 constitutes a crime of persecution. In fact, this rather obvious truth

2 was specifically found by the Court -- by the appellate Chamber in the

3 Krnojelac case where the appellate Chamber held that discriminatory intent

4 cannot be inferred simply by looking at the overall discriminatory nature.

5 In fact footnote 267 in Krnojelac flat out says that not every attack

6 against the civilian population is necessarily discriminatory.

7 Your Honours, there was no evidence in this wooden rifle incident

8 or in the wrongful labour incidents that these detainees were selected for

9 any other reason than they were prisoners of war. The Trial Chamber made

10 that factual conclusion based upon a review of all of the evidence, and at

11 paragraph 677 and 692 they made specific factual determinations. In fact,

12 the Trial Chamber pointed out in footnote 1.685 that Witness SS said he

13 was chosen because he was in the opposing army. And yet the Prosecution

14 complains, well, that was with discriminatory intent. It needs to be

15 stressed that Mr. Stringer's efforts, he's the Prosecutor that actually

16 wrote the appeal my learned friend has to argue today, but in his appeal

17 there is also another glaring problem and that is that in the appellate

18 brief they argue for de novo review before there Chamber on this issue.

19 And as we as Defence lawyers and prosecutors are also often reminded the

20 Trial Chamber's factual findings are afforded and accorded deference and

21 are not to be disturbed unless they are clearly arbitrary. Here, we do

22 not have anything close to clearly arbitrary findings when you consider

23 the totality of the circumstances and the totality of the evidence in

24 relation to these three instances that are complained of.

25 The Trial Chamber's specific findings as to my client's specific

Page 316

1 intent were based on consideration, review, testimony, and exhibits. And

2 my argument is that one can no sooner make an apple into an orange by

3 calling it an orange than one can make legal issues out of factual issues

4 by calling them legal issues. Which is exactly what the Prosecution is

5 doing in their appellate brief.

6 The assertion that the Trial Chamber incorrectly applied the law

7 is nothing more than a thinly veiled attempt to manufacture legal issues

8 out of a factual determination. And Your Honours, as to this issue of

9 persecution and whether or not no reasonable fact finder could have a

10 doubt, I submit that the Trial Chamber was correct when it found at bare

11 minimum we've got a doubt as to this discriminatory intent. It is simply

12 on the other hand manifestly unjust to come before an appellate Chamber

13 and argue that these three instances should have discriminatory intent

14 imposed upon them in the face of the tide of evidence to the contrary.

15 Or, worse yet, to say no reasonable person could make and have a

16 reasonable doubt.

17 One of the most glaring defects with the Prosecution's argument is

18 found at paragraph 211, subparagraph 4, and my learned colleague even

19 referred to that same argument today in his oral submissions. Here the

20 Prosecution submits this: That unless an accused comes forward with

21 specific evidence that the crime was committed on some other specific

22 ground, the Court must find discriminatory intent. Now, recognise the

23 logic of that submission. In its effect they are saying assume this

24 exists, once general predicate facts are established. Assume

25 discrimination exists for everything. Then place the burden -- yes?

Page 317

1 JUDGE SHAHABUDDEEN: I'm lost a little. It might be my own fault.

2 I can't find paragraph 211 subparagraph 4.

3 MR. KERNS: Page 12 of the Prosecution's appeal brief,

4 Your Honour.

5 JUDGE SHAHABUDDEEN: Oh, the Prosecution's appeal brief. I don't

6 have that.

7 MR. KERNS: Yes. Okay. I can get that to the Court, if you like.

8 I've got a copy as well.

9 JUDGE SCHOMBURG: Thank you. My question serves two purposes,

10 first to keep the record straight and give you the possibility to answer

11 the question, if you so want. You referred us at page 68 -- 68, line 4

12 and 5 to paragraph 384, and there it reads, the Trial Chamber "accepts

13 that Vinko helped and protected some Muslim prisoners." But my reading of

14 this paragraph is, "the Chamber accepts that Vinko Martinovic may have

15 helped and protected some of BH Muslim prisoners with whom he or his

16 family had a personal relationship or others who may have bought his

17 protection. However, reliable and corroborated evidence submitted by a

18 number of Prosecution witnesses shows that this protection was only

19 granted to a handful of Muslims." This would be the quote in context.

20 MR. KERNS: Correct, Your Honour, and I would also refer the

21 Court, though, in that same paragraph, I believe it's that same

22 paragraph -- no, the following paragraph, to footnote 1.000 where the

23 Trial Chamber then goes on to list all of the -- well, at least many of

24 the witnesses that testified as to my client's assistance. In other

25 words, our submission is that while they may have made that ruling as

Page 318

1 stated in paragraph 384, they also understood that many of these people

2 testified that he was helping them and those factual determinations as

3 stated in these footnotes are certainly relevant in determining whether

4 you have a reasonable doubt, if I've answered the Court's question.

5 JUDGE GUNEY: [Interpretation] Counsel, you have provided us with a

6 detailed description.

7 MR. KERNS: Sorry, Your Honour.

8 JUDGE GUNEY: [Interpretation] Let me start again. You gave us a

9 detailed description to high light in a number of cases the fact that your

10 client had no discriminatory intent. However, you did not talk about the

11 labour of the detainees, whether forced labour or not. Whether they

12 worked and did this job willingly, you didn't establish a connection

13 between that and a discriminatory intent. I would like you to elaborate

14 this, please, and, if possible, if you could give us some examples.

15 MR. KERNS: Thank you, Your Honours. As to whether or not -- the

16 answer is mixed. I believe the testimony at trial was some volunteered

17 and wanted to come to Vinko's unit to work and others did not. In fact

18 there was a conviction entered by the trial court as to unlawful labour.

19 So there isn't a clear response either way as to whether or not they were

20 all volunteers or they were all forced because the evidence was

21 conflicting. Many were volunteers, others, the Prosecution alleged, were

22 forced to conduct this type of behaviour. In any event, the Prosecution

23 complains of simply three small incidents, one -- and that they are

24 referred to in paragraph 2.2. One was the beatings at the Bulevar, at the

25 front line; the second, the unlawful labour at the front line; and then

Page 319

1 third, this wooden rifle incident. And in their appeal they limited the

2 scope of what they were appealing to those three issues.

3 JUDGE GUNEY: [Interpretation] What kind of tasks were -- what kind

4 of job did they have to do? Or what did they have to do? Those who were

5 willing to work, what kind of jobs were they doing? Did they -- were they

6 of a military nature or not?

7 MR. KERNS: Some, and again I wasn't the lawyer through trial

8 so I'm only left with what -- my colleague is -- he was trial counsel

9 but ...

10 MR. PAR: [Interpretation] With your permission, Your Honours,

11 since this concerns factual issues, I would propose to give you an answer

12 in several sentences. So if the question was what did these prisoners do,

13 the prisoners came, and we saw how they came, to the headquarters. Their

14 task was to perform light jobs and certain manual artisan-type jobs at the

15 front line, in order to make it perfectly clear, can we please put on the

16 ELMO P14.5? This is a photograph depicting the front line and it will

17 become instantly clear to you what jobs it was possible to perform at this

18 location.

19 Therefore, if all of you can see this on your screens, this is a

20 demarcation line between the two sides. This street is called Bulevar.

21 Bulevar separates Mostar into two parts, the western Mostar and the

22 eastern part. Croatian units are here in this section closest to us and

23 on the other side, where you see a lot of devastation, this is where the

24 positions of Army of Bosnia-Herzegovina were. The red portion marks the

25 area held by the unit of Vinko Martinovic, and next to it is the so-called

Page 320

1 health care centre. At that point in time, at the health care centre, it

2 was the soldiers who were positioned there. 20 metres further there were

3 soldiers of the opposing side. Nobody came to work there because there

4 was nothing to dig there. One cannot dig in the asphalt, not a fly could

5 fly through this area. That's how close these sides were to each other.

6 I did not earlier present our objections to all the testimony we

7 heard about filling sandbags, digging, and so on. There was nothing to

8 dig here. No trenches were dug there because people were shooting from the

9 buildings. So what is it that the prisoners did? The prisoners were not

10 here on this location. No, they were at the headquarters which is one

11 block further away and protected, away from this front line. So what is

12 it they came -- that they went to do there? They went there to make some

13 repairs, some of them came here and said I made coffee or I repaired cars

14 and so on. So they did the ongoing tasks, whatever was needed. This is

15 what they did. They did not go to the front line.

16 I will now yield the floor to my colleague once again. These are

17 the factual clarifications. Thank you for allowing me to explain.

18 MR. KERNS: May it please the Court. Your Honours, I was stating

19 that one --

20 JUDGE POCAR: Sorry, Mr. Kerns, Judge Shahabuddeen.

21 MR. KERNS: I apologise.

22 JUDGE SHAHABUDDEEN: Thank you very much for correcting my error

23 and drawing my attention to the Prosecution's appeals brief which I've now

24 consulted on the relevant point. In paragraph 211, it appears to me that

25 the Prosecution was not relying merely on these beatings, et cetera, but

Page 321

1 was relying on something else. Paragraph opens this way, "The Prosecution

2 submits that, 1, where there is a widespread or systematic attack that has

3 a discriminatory aim, such that the victims are targeted on relevant

4 discriminatory grounds (in this case an attack against BH Muslims with the

5 aim of transforming the area in the territory populated by an ethnically

6 pure BH Croat population), then, 2, where a person accused of persecution

7 is a participant in that widespread or systematic attack and commits

8 relevant crime during the course of that widespread or systematic attack,"

9 then comes 3 and 4, and in the conclusion is that the only reasonable

10 conclusion is, so, one of persecution. And there was the necessary

11 discriminatory intent.

12 So is seems to me from that paragraph the Prosecution, while

13 casting its net very widely, including all factors and all circumstances,

14 wasn't particularly relying on the fact of the beatings and of the wooden

15 rifles, and so on.

16 MR. KERNS: Your Honour, if I may I was arguing with regard to

17 their proposed change in the law and if the Court were to continue on

18 after the comma, after the word "attack" that you just mentioned, the

19 words exist, "unless there is some specific evidence that indicates the

20 crime was committed on some other specific ground." And I argue that that

21 is a shifting of the burden of proof. When they say, Hey, let's assume

22 it, unless they can produce some facts to dispute it.

23 JUDGE SHAHABUDDEEN: I just want to understand you.

24 MR. KERNS: I thank you, Your Honour.


Page 322

1 MR. KERNS: My point was that that would be -- may it please the

2 Court, my point was that to adopt such a suggestion to infer general

3 intent and then place a burden on an accused to prove otherwise would

4 create a shifting of the presumption of innocence as formulated in Article

5 21(3). Now, I do note in the Prosecution's reply they argue that there

6 would be no impact on the presumption of innocence in their reply brief.

7 They say that the law does allow for permissive inferences and the law

8 does allow for presumptions and of course we agree with that. But what

9 the Prosecution is seeking in this appeal before your honourable judges is

10 not a permissive inference and they are not asking for a rebuttable

11 presumption. What they are asking nor is a mandatory inference that says

12 once general discriminatory intent is established everything bad that ever

13 happens somehow becomes discriminatory in nature. Unless the Defence

14 comes forward and proves otherwise. Placing the burden of proof on the

15 Defence.

16 My point being that the Krnojelac Appeals Chamber's decision is

17 not the prosecutorial saviour that they submit to you that it is, the

18 specific holding states that discriminatory intent may be inferred. That

19 is permissive. It's not mandatory language. As long as there are facts

20 that substantiate that general intent. That is at most a permissive rule

21 of law.

22 JUDGE SHAHABUDDEEN: Mr. Kerns, is there anything in the judgement

23 which says that the Trial Chamber, in coming to this conclusion of

24 non-discrimination, took into account the point made by the Prosecution

25 that the very attack against the civilian population was based on

Page 323

1 discriminatory grounds and that the accused participated in that attack?

2 Is there something in the judgement which says that the Trial Chamber

3 adverted to that?

4 MR. KERNS: Yes, absolutely, Your Honour. When you -- in fact, it

5 must be said that the Trial Chamber recognised discriminatory intent when

6 they found it. I refer you to paragraph 680 where they found -- I'll

7 wait. And 681 and 679, all of those paragraphs. Where in all three of

8 those paragraphs, the Trial Chamber is making findings of discriminatory

9 intent. They are saying under the facts here, we find that there was

10 discriminatory intent.

11 Now, they are not shy about finding it when it exists, in fact in

12 one count they convicted my client of persecution based upon

13 discriminatory intent when he -- it was alleged that he assisted in some

14 unlawful transfer. So this isn't a situation where the Prosecution -- I'm

15 sorry, the Trial Chamber is trying to shy away from finding discriminatory

16 intent when the facts suggest to do so. My argument is simply that it

17 should not be imputed to every single bad act that the Prosecution

18 alleges. And I hope I've made myself clear on that point. Pursuant to

19 the scheduling order, I know that I need to address another issue as well

20 with the time that I have, but when my learned colleague stands and

21 suggests to you that no reasonable fact finder could rule as a Trial

22 Chamber did as to these three incidents I would ask the Court to consider

23 the evidence that the Trial Chamber mentioned, which is, among other

24 things, that my client was raised with Muslims, that he had Muslim

25 friends. Even if they were limited, he had them. As my learned

Page 324

1 colleague, Mr. Par, indicated, an if you're going to convict me for not

2 helping some I should get credit for the ones that I did help.

3 In addition to that they were comrades in war. Muslims testified

4 that he protected them, hid them, his general attitude was the same, that

5 many wanted to go from the Heliodrom to be with him, that he ate them, fed

6 them, in fact that he ate at the same table even during the war. All of

7 those facts are sufficient at bare minimum to cause a reasonable doubt as

8 to these particular incidents, at a bare minimum. My learned friend in

9 his next 30 minutes will have to stand before you when I am done and argue

10 with a straight face that all of these facts that the Trial Chamber heard

11 should somehow be pushed from the mind of the Trial Chamber, ignored

12 completely, and quashed with this huge presumption of discriminatory

13 intent from the general nature. And I would respectfully submit that that

14 is wrong and it should not be done and would result in a switching of the

15 burden of proof.

16 Now, the first issue raised by the Prosecution is the only issue

17 which they ask, albeit kind of halfheartedly but at least they do ask

18 for -- I think they described it as a non-significant increase in my

19 client's sentence. Because that one little paragraph is in their appeal

20 brief, although I do note my learned friend didn't argue such a thing

21 today, I feel compelled to respond to that issue as well because it's a

22 big one to us.

23 Our position on this is that Vinko Martinovic has already received

24 way too much time and a non-significant increase that is suggested only in

25 a one sentence in the Prosecution's brief should be seen for what it is.

Page 325

1 When the Court makes certain considerations I would ask that the Court

2 consider the findings, that this man was "a Mostar boy with no political

3 connections, with a basic education, responsible for a

4 couple-hundred-metre line that's reflected in the exhibits that we brought

5 before this honourable Chamber. He was not politically connected so we

6 would ask that the Chamber not lose sight of the man Vinko that we are

7 dealing with who was born and raised in Mostar. He did not go out looking

8 for this war. The war came to the streets of his youth and came to him.

9 And he stayed there.

10 There is a very important exhibit in the trial, PP608, where he's

11 even offered promotion. He's even told, Vinko, you can have more power,

12 more prestige, and he refuses it so that he can stay along the front lines

13 with his men. So we are not talking about some huge, powerful commander.

14 We are talking about, as the Trial Chamber found, a Mostar boy defending a

15 couple hundred metres in front of the Exhibit PP. That's what we are

16 dealing with here and that's the man that received 18 years. The same

17 amount of time it takes in America to become a man, 18 years.

18 He's certainly, we believe, would split to this Court, we are not

19 trying to tell you he was a saint, we are not trying to say he was some

20 perfect saint. He certainly was not. But I did not know the 29 year old

21 man that began the fighting in Mostar. I do know the 42 year old man that

22 sits before you and has his fate in your hands today and I stand here

23 proud to call him my friend. A modest yet undefined increase of sentence

24 that the Prosecution halfheartedly suggest in their appeal must fail.

25 Your Honours, I promised I would talk about this deportation

Page 326

1 issue. So if it please the Court, let me turn to that. Although this

2 third issue raised by the Prosecution seeks no modification as to my

3 client's sentence, the Court in its scheduling order requests that we

4 discuss this issue so if it please I'll turn to that issue. And once

5 again the Prosecution argues the Krnojelac opinion as it's somehow

6 assisting the Prosecution, well, I will argue it does not.

7 At paragraph 4.6 of the Prosecution's response brief, the

8 Prosecution alleges in paragraphs 25 and 26 of the indictment, that it

9 alleges my client committed the crime of deportation. Now, the paragraphs

10 mentioned and quoted by the Prosecution in their response brief at

11 paragraph 4.6, they make no mention of deportation at all. In fact, when

12 you take a look at our indictment, you won't even find the word

13 deportation. It's not there. At almost every time in the indictment,

14 when the indictment refers to forced displacements of people, the

15 indictment talks about forcible transfers, not only is the word

16 deportation not found in the paragraphs the Prosecution says it's found

17 in, the word is not found anywhere in the indictment. The only part of

18 the indictment with any modification of the word deportation is found

19 buried in the 34th paragraph when they are talking about underlying acts

20 and then all that is said in a single sentence is: "Certain men were

21 forcibly transferring and deporting people."

22 All other 16 times that the indictment refers to deported -- or,

23 I'm sorry, to displacing people you find the word forcible transfer. In

24 fact, count 18 charges him with forcible transfer, displacements of

25 people. It should also be noted that the Prosecution's argument on

Page 327

1 deportation, while interesting, is also irrelevant in the context of this

2 particular case. Because the same underlying conduct for which they

3 complain was covered in the count of persecution based upon unlawful

4 transfer, or forcible transfer as it was called in the indictment. So the

5 Defence's position is that this Trial Chamber could not have found

6 deportation as an additional basis for persecution even if it wanted to.

7 Why? Because it's not even charged in the indictment. The good news

8 is -- even though the bad news is we are charged with some things we

9 didn't know we were charged with, the good news is we were acquitted of

10 things we were not even charged with as well. We are not charged with

11 deportation, but yet there is a comment in the Trial Chamber about how

12 they didn't prove it.

13 Firstly, deportation is not even charged. Yet, the Trial Chamber

14 acquitted us of it which we thank them for, I suppose, but firstly, our

15 position is deportation is not even relevant to this case. Secondly,

16 Vinko's conviction of persecution by means of forcible transfer covered

17 the entirety of these displacements that they alleged. It's even

18 mentioned specifically in count 18 for the forcible transfer. What the

19 Krnojelac appellate Chamber made clear is regardless where people are

20 forcibly displaced the crime of persecution can be established. We agree.

21 We think it's a fine aspect of law. But in our case, displacements that

22 were alleged were from west side to east side of town. And, importantly,

23 the Krnojelac appeal Chamber cited - with approval, I mind you - this very

24 trial judgement, findings of fact at footnote 354 and says, well, they

25 were able to find that forcible transfer constituted the crime of

Page 328

1 persecution. So this very case was cited with approval.

2 As I said, the deportation issue raised by the Prosecution is in

3 fact irrelevant in the context of this case. Also, in Krnojelac, the

4 appellate Chamber said it is not necessary to define a term which does not

5 appear in the provision upon which the indictment is based. But, on the

6 other hand, I actually bothered to read the whole case and as

7 Judge Schomburg essentially pointed out in Krnojelac, if an appeal Chamber

8 can help define the law it ought to do so. And we agree with that as

9 well. Which makes perfect sense to me. So frankly, our position is we

10 would like to have some part in the development of that jurisprudence as

11 well, so let me address the Defence's position as to deportation

12 recognising our position is it's kind of irrelevant in the context of our

13 case.

14 If this Chamber finds that throwing in a sing the word, deporting,

15 right after the word forcibly transferring in a single sentence in a

16 58-paragraph, 22-page indictment is sufficient to raise the issue of

17 deportation, as separately charged and defined as a war crime, then our

18 Defence would be as follows: Forcible transfer should be defined as

19 different than deportation. Deportation, we believe, is also a more

20 serious crime than forcible transfer under some circumstances, and

21 deportation should require displacement beyond a de jure border while

22 forcible transfer should be defined as something that takes place within

23 the borders of the state. We agree that any form of displacement can be

24 the basis of a persecution crime, but I submit that if one forces a family

25 from the west side of town to the east side of town, then the citizens

Page 329

1 displaced are still able to speak the language, they may share the same

2 currency, they may have family support or economic support. Conversely,

3 when one displaces a citizen from one country to another where they may

4 not be able to speak the same language, they maybe have no connections,

5 they may have no family, they may not have any of the right currency, that

6 should be treated differently. Because there is an increased amount of

7 damage, harm, and inconvenience. Deportation, we submit, is that crime.

8 I think it also important to note that I heard my learned

9 colleague come up with an impressive article about how so many people have

10 refused to define deportation the way I suggest. I think it's also

11 important to know that just October 6, the same Prosecutor's office is

12 telling the Stakic appeal Chamber exactly the opposite, that they've

13 covered the various jurisprudent sources from the Trial Chambers and we

14 acknowledge that the jurisprudence that is developed is not favourable to

15 our position.

16 I think Judge Guney even asked the question I'm sorry on the third

17 day of the hearing October 6, line 13, "Mr. Tracol you said that after

18 conducting research with the case law of the Tribunal you came to the

19 conclusion that this was not in favour or that this was contrary to the

20 main position of the Prosecution." And again Mr. Tracol goes on to say

21 it's true that when you look at the decision the way the jurisprudence has

22 developed it's not in the main favour of the Prosecution.

23 An interesting question from Judge Guney again: "Regarding the

24 outcome let me ask then on what basis do you maintain this position?" And

25 their answer at the time was the Krnojelac appeal judgement, which failed

Page 330

1 even to define the issue.

2 Your Honours, my reply to the Prosecutor is done. But when I

3 listened to my learned colleague argue twice in the course of his

4 submission that no reasonable finder of fact could find as the Trial

5 Chamber did as to these three instances, an image popped into my mind of a

6 toy my daughter has, and I mean no disrespect to Norm because I like him

7 very much as a man. Only for illustrative purposes am I saying this. But

8 it reminds me of this figurine my daughter has where the monkeys have

9 their hands over their eyes and their ears and their mouth. Hear no evil,

10 speak no evil, see no evil. Here they are wanting to see evil, speak

11 evil, hear evil without any evidence, or, in the face of a whole lot of

12 evidence that could at least say to the trier of fact, I've got a doubt.

13 And I would submit that that is wrong. I would request that the trial

14 court affirm the Trial Chamber's findings as to these three incidents,

15 affirm that the Court -- the Prosecutor failed to establish beyond and to

16 the exclusion of all doubt because there is a plethora of doubt under the

17 facts that the Trial Chamber discussed.

18 Thank you.

19 JUDGE POCAR: I thank you, Mr. Kerns. I will now turn to the

20 Prosecution for their reply. You have 30 minutes.

21 MR. FARRELL: Thank you, Mr. President. Your Honours. My learned

22 colleagues. I'll only take a few minutes but just to clarify a few points

23 if I may in relation to my learned colleague and friend's submissions.

24 With respect, and I guess this is where the parties diverge, I think that

25 my friend's submission by trying to look and see how the prisoners were

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Page 332

1 selected and, in focusing on the fact that he alleges that Mr. Martinovic

2 department have any say into which prisoners were selected, misses the

3 point. The fact that the focus of that part of his submissions is on

4 whether or not the Prosecution can prove at that particular time at that

5 particular place that they were taken on a discriminatory basis somewhat

6 narrows the lens in a manner which the Prosecution submits is inconsistent

7 with all of the evidence.

8 As I indicated earlier, there were only Muslims taken. Muslims

9 were not treated the same in the detention centre of the trial judgement

10 at paragraph 431 actually indicates that Bosnian Croat detainees were

11 permitted to go over to the side where the Muslim detainees were and to

12 beat them. There were only Muslims taken from the Heliodrom. And when

13 they arrive, I indicated five instances that I picked of those doing

14 detention work where they were called derogatory names by Mr. Martinovic

15 himself. It's inconceivable that this was random, that he actually likes

16 call everyone by these derogatory names and they could in fact be Croats

17 and he's just using that terminology for people who worked for him.

18 At footnote 1685 which I referred to in my submission, Mr. Kerns

19 pointed out that the Trial Chamber was satisfied that Mr. Martinovic would

20 use enemy soldiers instead of his own soldiers. I accept that's what the

21 trier found and that's the basis upon which they had the reasonable doubt.

22 As you know, in relation to the wooden rifle incidents he referred to that

23 two of the three were actually Muslim HV. So soldiers so they weren't

24 enemy soldiers. One of them, Witness PP, had been in hospital for an

25 operation and was taken out of the hospital, and Witness I, who was the

Page 333

1 witness to it, was also a Muslim HVO soldier so it's hard to imagine how

2 the Court came to the conclusion that they were enemy soldiers. What they

3 were, were Muslims who they were against, not ABiH soldiers. And in

4 relation 20 the civilians I mentioned earlier on, a number of the

5 civilians listed in the unlawful labour section of the judgement from 268

6 to 270, I think I was able to find three of them were civilians, including

7 witness KK who was a 16 year old boy.

8 In relation to the fact that there was evidence that

9 Mr. Martinovic may have helped some Muslims I just ask you to refer not

10 only to the passage Your Honour Judge Shahabuddeen -- I mean, Judge

11 Schomburg referred to but also at paragraph 678 of the judgement. The

12 didn't accept that as a basis for undermining the discriminatory intent.

13 If I could just speak about Mr. Par's factual submissions because,

14 with respect, that's all they were, he claims by showing you the picture

15 that nobody came to work at the front line, nobody could have worked

16 there, and nobody could have dug trenches at the front line and basically

17 indicated that there was no work done there. All I'd ask you to do is

18 look at the footnotes I referred to in my submission. Footnote 722, 723,

19 725, and 727. All of them indicate that Witness J's work consisted of

20 filling sandbags and digging trenches to fill the bags and he had to cross

21 the line. Witness PP had to take bunkers apart destroy trenches sometimes

22 in the line of fire, and Witness Allan Knudsen testified that prisoners

23 were working on the front line all the time. With respect the factual

24 representations are not consistent with the judgement.

25 And simply, lastly Mr. Kerns points to the Prosecution's

Page 334

1 submissions as requiring a reversal of the onus. The Prosecution is more

2 than willing to accept the Krnojelac appeals Chamber judgement where it

3 indicates that based on the context and the surrounding circumstances that

4 may, and in this case, it's our submission, it does, leave no reasonable

5 doubt. That's all I wanted to address from the Prosecution side for the

6 first ground of appeal. I understand that Mr. Kremer has no submissions

7 in relation to the second issue, deportation. Mr. Tracol indicated he

8 would have a few minutes just on the cumulative convictions in relation to

9 Mr. Naletilic's comments before lunch. Thank you.

10 JUDGE POCAR: Please, Mr. Tracol.

11 MR. TRACOL: [Interpretation] Yes, briefly, may I reply. As far as

12 the response of the Prosecution is concerned concerning fourth ground of

13 appeal where the Defence responded to a while ago. I would just like to

14 respond on two points. The first relates to a -- crime elements, i.e.

15 persecution and torture. The second point has to do with the standard

16 applied for cumulative convictions in the case of persecution and other

17 crimes against humanity. As far as the first point is concerned, namely

18 crime elements, first of all, we are talking about persecution. The

19 Appeals Chamber defined the crime of persecution in the Krnojelac

20 judgement in paragraph 185 and applied the applicable test for cumulative

21 conviction, applied it to persecution and other crimes against humanity in

22 Kordic and Cerkez, in paragraph 1044 and following. As far as the torture

23 elements are concerned, there is a jurisprudence provided by the Appeals

24 Chamber in this particular instance. Please refer to the Kunarac

25 judgement paragraph 142 and 144.

Page 335

1 The Defence submitted towards the end of the morning that each act

2 of torture must have a discriminatory intent and in practice each act of

3 torture involves a discriminatory process. This is not the position held

4 by the Defence because, according to the definition which was provided by

5 the Appeals Chamber in the Kunarac judgement, in the paragraphs 142 and

6 142 [as interpreted], the mens rea element in torture is requires a

7 specific intent. In other words, with a view to obtaining a confession,

8 so to punish and force the victims or to provide discriminatory intent,

9 for whatever reason it may be, discrimination therefore is an alternative

10 element and part of torture, but is not a part and parcel of the torture

11 element so as far as cumulative conviction is concerned the proof of

12 discrimination is not required as regards mens rea -- the involvement of

13 mens rea in torture, if the Defence disagrees with the jurisprudence of

14 the Appeals Chamber, i.e. the Krnojelac and Kunarac judgement a definition

15 of these crimes has been provided by the Appeals Chamber. The Defence

16 therefore is free to prove to the Chamber that for compelling reasons

17 i.e., in the interests of justice for the Chamber to move away from this

18 decision. Paragraph 108 of Kowalowski [phoen] and the Defence this

19 morning didn't even make an attempt to prove any of these compelling

20 reasons.

21 As far as the second point is concerned, this has to do with the

22 cumulative conviction for persecution and other crimes against humanity,

23 and the standard that is applied in those cases. The Defence referred in

24 a number of cases towards the end of the morning to the Krstic judgement.

25 The Defence seemed to forget that the Appeals Chamber in the Kordic and

Page 336

1 Cerkez judgement considered that compelling reasons commanded them to move

2 away from the Krstic judgement because this -- in this case, the standard

3 was not applied correctly. There was a murder and persecution, and that

4 applicable law, when referring to cumulative conviction for persecution

5 and other crimes against humanity and therefore the Kordic and Cerkez

6 judgement was referred to this morning.

7 I have now provided my response and I'm prepared to answer any of

8 your questions, if you so wish.

9 JUDGE POCAR: I believe there are no questions. So may I take it

10 that the Prosecution has concluded its reply?

11 MR. FARRELL: Yes, thank you, Your Honour.

12 JUDGE POCAR: So then, if the parties have concluded submissions,

13 we can move on to the personal addresses of the accused, if they wish to

14 avail themselves of this possibility. And I will ask Mr. Naletilic if he

15 wants to address now the Bench. According to what I said this morning,

16 Mr. Naletilic, you will have 20 minutes for your address. So please bear

17 that in mind. You have the floor.

18 THE APPELLANT NALETILIC: [No interpretation]

19 THE INTERPRETER: Microphone, please, for the accused.

20 THE APPELLANT NALETILIC: [Interpretation] Thank you very much for

21 the five minutes that you gave me. I would like briefly to start with the

22 founding of the Convicts' Battalion. It was established in 1991. The

23 Court established specifically that I was its commander, its first

24 commander, and I was its commander until the 15th of August 1992.

25 Then Mario Hrkac, Cikota, and there is a decree on that, was

Page 337

1 appointed upon my initiative as not a formal but a formal and practical

2 head. I would just like to say something about this legend ascribed to

3 me. I think that Sir Martin Garrod said that Tuta is legendary. I

4 laughed then because I always believed that only a dead man could turn

5 into a legend and that's what Mario Hrkac, Cikota, was for me now today.

6 He was a legend. I think that I created this fame. I think that I

7 ascribed most of the qualities to him. I imbued him with all the

8 qualities that he has. He was a child when he came to me. He was 18

9 years old. He grew into a leader whom I sincerely admired. I always

10 thought of him the best had he remained alive. Had he become a footballer

11 he would have been the best. Had he been an athlete he would have been a

12 world champion. He was a natural mixture of intellect and force. I

13 watched the actions that he carried out. My last action was at Debelo

14 Brdo and also he could see that I was finished, I could not go on any

15 longer. I weighed 56 kilograms. Let me just point out the difference for

16 you how good the prisons are. When I went into prison, I had 56

17 kilograms. Today I weigh 80 kilograms. I'm not saying this in order to

18 evade responsibility. I am still faithful to my beliefs. I will always

19 remain responsible.

20 Mario was killed on the 20th of April 1993. The Prosecution -- I

21 heard a lot about Mario being this and that, but Tuta was there all the

22 time. There is no doubt that I would always stand by him as much as I

23 could. But nobody noticed here actually what it means to be a commander.

24 A commander is only as good as the soldiers who sense him. The moment

25 when he no longer can follow his soldiers to wherever they go to, he's

Page 338

1 finished. He cannot be a commander any longer. He can remain so by name

2 but a commander is always the person who is somewhere first. At Debelo

3 Brdo, I did that action, I also did the Velez and the Pod Velez actions as

4 well. Debelo Brdo was my last action. That was when he understood that I

5 felt at the weakest point. I could feel him feel sorry for me. He said,

6 Old man it's not going any more. And I said, No it's not. Of course I

7 always stood by him. I helped him as much as I could.

8 And now when we are talking about the Doljani and Sovici actions,

9 that action is not one that was headed by Tuta. This was a complex action

10 and had it been carried out in 1992 I would not have been able to carry it

11 out. We were specialised and we remained that. We specialised for the

12 most difficult assignments but once for a maximum of 60 people. My unit

13 or capacity was not greater than that. I was very good but Cikota was the

14 best. At the time Cikota was given the Pasije Stene, that was an

15 elevation over Sovici and Doljani. I don't know the elevation. It could

16 be up to 1.000 metres. When that fell, everything else would fall because

17 in each strategy there is a point in time when -- where that -- it's used

18 as a stronghold, and when this stronghold is captured then everything

19 falls after that. Even a child could then continue on after the

20 stronghold falls. Mario was given that assignment. He carried it out

21 perfectly. He went around the hill above Sovici and Doljani. I don't

22 know that road. I wasn't there. But he took the road. He reached

23 elevation 905 and that was when he -- when it fell. And he deserved it.

24 I was with some children, some 30 kilometres away.

25 You have to know one thing. I think Udo had five years and Mate

Page 339

1 was five -- five years old. They didn't speak Croatian. No matter how

2 long I spent in jail, I consider myself to be a good father. Perhaps I

3 was not a good husband but I was certainly a good father. I would never

4 have left my children for three and four days in order to go out on an

5 action. That was impossible, had it even been in 1992.

6 When the late Boka was killed I knew that I had to go and I went

7 there. There is no doubt that as soon as I went to Doljani there was a

8 small creek there, I went across and I saw them kneeling, five, six, ten

9 prisoners. I don't know how many of them were there. Immediately I said,

10 stand up, get up. I said, Who was the commander? Actually there were no

11 commanders any more. There were soldiers. Not our soldiers because Alija

12 was in Sipica Livade [phoen]. So when they were coming down, Marica Kuce

13 is ten kilometres away, and Cikota was at elevation 905 which is also ten

14 kilometres away. So there were no soldiers there. Our soldiers did not

15 shoot. I didn't see anybody being beaten. There were stories here about

16 some grape-picking and so on. I said get up. You must not beat them. No

17 one was beaten as long as I was there.

18 Some people said there was also one young boy a soldier came to

19 me, I don't know why he came to me and said, well, we have an underage

20 person. Would you ask the commander to let him go? I said, son, take

21 that child home. And if anybody has anything against that, let them come

22 to me. But then the first testimony that was seen here and he obviously

23 remembers me but he didn't mention any beating or being hit or anything

24 like that. But in 1996, the statements changed. I'm not going to talk

25 about that. I read all the statements since 1993. Nobody mentioned me.

Page 340

1 They mentioned Tutici and I will speak about that. I did write about

2 that.

3 When I took Boka, I went to Risovac, up there where my children

4 were, and I took them and then the next day something else happened.

5 Cikota was killed. I don't need to say more. I mean, I can sincerely say

6 that I felt that he was just like my own child. I loved him. So it was a

7 blow to me, too. Witnesses, who do I know were saying Tuta was in Sovici

8 and Doljani. I don't know which dates. But in any case, they got their

9 reasons. I think that Judge Pocar saw documents, he rejected them but he

10 saw them where it is stated that 26 people were suspected as being

11 indicted by The Hague but Tuta's name was not among those names. But the

12 problem actually then was created for the commander, even was ideal. But

13 he had a problem. He was suffering from diabetes, so it wasn't sure that

14 he could carry out that task. But he got it. He got this task, and as

15 far as the operative aspect is concerned, he did his best.

16 Would I have helped? Yes. Was I able to go into actions? No,

17 no, you have to know that I am suffering from emphysema. My lungs were

18 not functioning properly, my breathing wasn't so good. My heart, of

19 course, would be placed under stress in that situation. So I was also

20 suffering from a heart ailment. But there was no way out. I was charged

21 with persecutions and I would like you to carefully look me in the eye.

22 Here I would never order or carry out anybody else's orders, neither did I

23 ever issue any order to that effect, personally.

24 I'm not only speaking ethically. I remember when I was an

25 immigrant there was a famous professor who used to say there was no death

Page 341

1 penalty in ancient Greece. That was not the worst punishment. The worst

2 punishment was to be expelled from one's homeland, to be banished. As far

3 as I'm concerned, this is something that was absolutely out of the

4 question. As far as Sovici and Doljani is concerned, I think that this

5 was some time later, in May, in early May.

6 And now I would like the name to be entered correctly into the

7 transcript. Perhaps you will be needing it, perhaps the Prosecution will

8 in any case, because this is very important. Miro Gradovac, called Gida

9 [phoen], came. He came to me, not to Andabak, and our soldier from

10 Posusje and he said, Old man are you going to allow this? They are taking

11 women, children, the elderly and they are taking them to the school. I

12 don't know whether it was the secondary school, but in any case he

13 described it. I said, Son, we will not allow that to happen. Where are

14 the children? The women? And he said, Old man, they are up there. And I

15 told Ivan, Give me some soldiers. I'm going to go there.

16 We went there. I'm going to describe the building. It had a

17 glass front. I don't know whether it was a sports hall because of the

18 glass but it had to be some kind of sports venue. Everything was strewn

19 around. There was nobody there. I just told Ivan we have been betrayed

20 by our own people. Somebody must have let them know. You can check that.

21 They went to the HQ in Posusje and we were told they were transferred to

22 Vakuf.

23 I swear that I would have had to be a paramilitary then to carry

24 out an operation and I would have been. I mean we had come with rifles,

25 we were not going to kindergarten. Had I done it I would have carried out

Page 342

1 the action perfectly. Anyway, that was finished. Then the Mostar action

2 came later. Ivan was given the assignment in the direction of the old

3 bridge. If you look at the television footage, I'm going to tell you

4 about a case where I am 100 per cent guilty. You can interpret it

5 psychologically however you want, but this is how it happened. Juka

6 Prazina called me, had to have been in the afternoon. I had a Kenwood

7 Motorola at the time, and it's important to look at the tape and you will

8 see that I was in civilian clothing.

9 Stari, he said, I have a surprise for you. I said, Tell me. He

10 said, Come in front of the ministry. I have captured I don't know how

11 many people. And then they came. The witness who came to testify here, I

12 don't want to tell him his name because we are having the same kind of

13 problem in Croatia at the moment, I cannot remember. Z was in the

14 Heliodrom but I will also talk about him. It's very important.

15 Judge Pocar said that he was interested in Witness Z. Anyway, this is

16 what happened. Brana Kvesic, I suddenly heard him say, My God, what the

17 hell are you doing here? And I looked, and it was that witness there.

18 And then I saw that he was being aggressive. He came up to me. I was

19 very good. He was broader and stronger than me and you can see that on

20 the footage. I caught him from the back and we were tussling a bit, and

21 then here he said that I struck him six times with the Motorola and that

22 he was asked, Where are the scars, and, well, anyway, this is not what

23 happened.

24 But Alica Povric, a man who was at my wedding with me. Actually

25 it was the marriage of Bozo Sain, a Muslim. I was the best man. We spent

Page 343

1 the whole evening together. There were Juka's people there. Our people

2 from the Convicts' Battalion. There were many soldiers. I remember him

3 well. He behaved as if he was sitting in the drawing room. He was

4 different from the others. He said to me, Do you know this guy? I turned

5 around and I said, You're one of us. I meant one of us from the Convicts'

6 Battalion. He said, No, I'm not, Stari. And then when he said "Stari," I

7 said, So then you must have fired at us? And he said, Yes, I did, Stari.

8 So like this, you're not our soldier. Only our soldiers called me

9 by that term, Stari. And friends. So -- and I grabbed my Motorola. He

10 pulled back as a reflection. The Motorola did not hit him but it fell and

11 it broke apart. But it was a very ugly scene.

12 Juka Prazina, well it was a compliment to me, said, What happened

13 to you, Stari? I said, What do you mean what happened? He betrayed us.

14 And then he said to me, Tuta, I did not betray you. I'm Arif Pasalic's

15 driver. I know you. How could you be his driver? He said, Yes, we were

16 at the wedding. Then it all came back to me. This is what happened, Juka

17 Prazina -- how much time do I have left, Your Honours?

18 JUDGE POCAR: Another four minutes.

19 THE APPELLANT NALETILIC: [Interpretation] Four?

20 I said, Well, I asked you not to hand him over. He was taken to

21 Zagreb, to the embassy. That was his desire and he is still working there

22 to this very day. He did not come here to testify. So he's that incident

23 with the Motorola. I will be very brief. Neither I nor Cikota, late

24 Cikota, nor Andabak commanded any ATG group. No other battalion other

25 than the Convicts' Battalion. Neither -- there was a sister group, that

Page 344

1 was the Baja Kraljevic ATG. That was the group that went with us.

2 Predrag was the commander and Cikota, and later it was Ivan and Ilija.

3 Only they. Yesterday, Mr. -- somebody from the Prosecution said something

4 about the HV. I never commanded the HV, and thank God that I did not

5 because personally I did not have a very good opinion of them. I always

6 believed that they were just there in order to acquire ranks, not really

7 to wage war.

8 And I would like to finish this. Your Honours, I have been

9 charged with persecution. I am not guilty of that. I did save some

10 people and the Trial Chamber saw that well. I'm not asking mercy for

11 anything. I've already received mercy from God. I'm healthy. My

12 children are healthy and all of that is fine. Regarding the prison, maybe

13 you can give me another two minutes more. Mr. Martinovic said that I

14 could take 8 minutes from him. Perhaps if you allow me two more minutes

15 for me to say something which is very important about the prisons.

16 Heliodrom, I was never there in 1993. Ljubuski, Siroki Brijeg, I

17 never went to any of those prisons personally. The first and last time

18 that I went to a prison was in 1994 in May. That is Witness Z whom I

19 wanted to substitute for Ivankovic, exchange him for Ivankovic. The

20 exchange didn't take place because he didn't want to because he knew that

21 he was going to be released soon anyway. Aleksovski was the camp

22 commander and he was there in 1993. This can be checked. Witness Z, when

23 I told him, Okay, if you don't want to, we are finished, you can go. He

24 stayed. And at that point in time, my driver, who was standing right

25 behind him, grabbed him by the collar and lifted him up. I jumped up

Page 345

1 immediately. I swore I don't want to do that here. I told him, Get out.

2 I apologised to him. I apologised to Aleksovski and when I went out he

3 said to me, Stari you shouldn't have humiliated me like that. And I swore

4 and I said, This is the last time that you're coming with me.

5 That's the truth and as far as what he said about me knowing that

6 he stole some money from the fourth, I didn't know. And had I known I

7 would have said, You're a revolutionary, you took the opponent's money. I

8 didn't want to charge him with that, absolutely not. So Siroki Brijeg, I

9 don't have time but maybe it would be important to you. Had I known as

10 the same way that I knew about Dobra Kurdice [phoen], had I known that

11 anybody was committing beatings in Siroki Brijeg I would have punished

12 them. But I see that I am at the end of my time.

13 In 1994, I went to the Lisak cemetery to pay my respect to the

14 witness -- to the victims, the only Croat. I also wish to express my

15 deepest sympathy to the families of all those killed, Serbs, Muslims, as

16 well as foreigners. There were many of them who gave their lives in

17 Herzegovina. I would also like to express my sympathy for those who

18 suffered the torture of expulsion.

19 I have finished. I think, Your Honours. I think I don't have any

20 more time. I don't want to go over the time. I would like to also thank

21 my lawyers, Mr. Matthew Hennessy and Mr. Christopher Meek who really

22 devoted themselves completely to have the best arguments in these appeals

23 and I would also like to thank you the lawyers of Vinko Martinovic, Stela.

24 I would also like to express my respect for the Prosecution. I must admit

25 that I have learnt a lot here because I used to believe that everything

Page 346

1 strives for the truth. But I am no longer sure of that. And to you,

2 Your Honours, I would like to thank you too for allowing me to speak. If

3 you would give me another minute just to say something about the prison in

4 Croatia, where --

5 JUDGE POCAR: Mr. Naletilic I already gave you five additional

6 minutes. So please.

7 THE APPELLANT NALETILIC: [Interpretation]. I apologise. I

8 apologise. Thank you very much.

9 JUDGE POCAR: May I now turn to Mr. Martinovic, if he wants to

10 address the Court, he has 15 minutes.

11 THE APPELLANT MARTINOVIC: [Interpretation] Thank you for allowing

12 me to address you, Your Honours. I realise that war is an evil in which

13 it is mostly the ordinary and the little people who suffer. I sympathise

14 with them and I respect and regret anything that happened to any victim

15 and the only thing that we as little people can do is to help each other

16 amidst this evil. It is said that this is the Court of truth and justice,

17 and this is why I have to say that there are many reasons due to which I

18 do not accept this conviction. I did not take part in the murder of the

19 prisoners Nenad Harmandzic. I did not abuse the prisoners, nor did I

20 place them in the human shield. I was convicted for taking part in the

21 murder based on a false testimony of a mentally ill witness.

22 The secret services of Croatia and Bosnia joined forces in order

23 to bring me here and conceal the actual people who issued orders and those

24 who executed them. It was the easiest thing to bring me here because I

25 was not familiar with the military and political plans. It was easiest to

Page 347

1 sacrifice an ordinary soldier on whose behalf nobody would intercede.

2 This is why I would like this court to review evidence pertaining to this

3 charge of the indictment.

4 Your Honours, I never allowed anybody from the work group to be

5 abused in my unit or in my vicinity. I allowed my attorneys to explain my

6 role in the war in Mostar because I do not understand this trial, these

7 proceedings, at all. I was an ordinary soldier in the war which took

8 place in front of my house. I did not want this war.

9 It was here before this Court that I heard for the first time that

10 I took part in an international conflict. My neighbours, Muslims, Jews,

11 Serbs, and Croats who testified in these proceedings, showed to you,

12 Your Honours, that I do not hate anybody because of their religion or of

13 their ethnicity. Nor did I ever harbour any hatred within me. It is true

14 that I'm not an educated man but even without a rule book I know that it

15 is impermissible to abuse or mistreat a prisoner. I never allowed that

16 kind of actions to take place. However, it is the Prosecution who claims

17 that a person was killed while under my protection and I would like to

18 assure you from the bottom of my heart that that did not take place in my

19 unit. And this is something that is illustrated by the documentation of

20 the Prosecution. Their documentation shows who is responsible for what

21 happened to that man. I should not have been convicted for that.

22 Everybody knew, it was visible to everybody that he escaped from the

23 military police and then the military police reported that. Now I am

24 faced with a 18-year prison sentence and I was sentenced for something

25 that never even occurred to me, let alone concealed something like that.

Page 348

1 I heard in Mostar when they asked this mentally ill witness, Why

2 did you lie in The Hague?, he responded, I am crazy but I am not that

3 crazy so as to refuse the house that was given to me for two hours of

4 lying. There is what this witness who testified about the murder said.

5 More difficult than the sentence is the false testimony and I felt

6 it on my own skin. I was convicted to 18 years of prison because I did

7 not enter into plea bargain with the Prosecution. And how could I explain

8 that there was nothing to me to bargain about because I did not abuse

9 anybody, I did not mistreat anybody, let alone kill anybody. If I could

10 somehow explain to you, Your Honours, my role at the demarcation line,

11 what I did and under what circumstances, you would acquit me. However, I

12 don't know how to explain that. It would have been easier for me if you

13 were to put questions to me.

14 It took seven years for a new indictment to be issued for acts

15 committed in Mostar, and the indictment was issued only after I was

16 convicted.

17 They did everything in order to attribute everything bad that

18 happened in the war in Mostar to Stela. I was told this personally by the

19 people indicted in the new indictment as well as by the people who are

20 with me at the Detention Unit. We have a saying in Mostar, in Zagreb,

21 that even birds in the trees know what secret services did to Martinovic

22 and Naletilic. However, it is really bad that those who should know - and

23 that is you, Your Honours - do not know about what was done in the

24 proceedings against us. It is a shame, Your Honours, that the Appeals

25 Chamber refused to hear new witnesses.

Page 349

1 Justice will not be served by that. Had those people come to

2 testify before this Court, then everything would have become clear to you.

3 You would know why is it that 14 witnesses were prepared to testify

4 against me and what was given to them in exchange for the testimony

5 against me. And I think that the gentleman from the Prosecution know very

6 well about this. Not only did this affect the judgement, but had it not

7 been for this, this judgement would not have been rendered. We were

8 unable to bring these witnesses here to testify before because at that

9 time, the secret services, both the Croatian one and the Muslim one were

10 active. Now those services are disbanded and all the dirty laundry has

11 emerged.

12 It hurts me that I was lumped together with the most serious

13 criminals and those who insincerely repented. Those who insincerely

14 repented, once they returned to the Detention Unit upon receiving a very

15 short sentence, they boast about their crimes. And this is not good for

16 the victims and their families.

17 I had to say this. It is very hard for me to keep quiet about

18 this. Sometimes I lose hope that I will be able to go back to life and

19 participate in the upbringing of my son but if God desires it, then I am

20 prepared to persevere and to carry on. Today I'm aware of the mistakes

21 that I've made in my life. However, I do not wish to be held responsible

22 for acts that I did not commit. I know that I am not important for this

23 Court or for any state, any country. However, for my son and for my wife,

24 despite of everything, I am the most important. And I need to play a

25 positive role in their life.

Page 350

1 If you, Your Honours, believe that I did not do enough to help the

2 people in Mostar, then, yes, I'm guilty. But I assure you that during

3 wartime, under the war circumstances, I did everything within my power,

4 that of an ordinary man, an ordinary soldier. I did the best I could in

5 order to help people whom I was able to help, regardless of their religion

6 or ethnicity. I believe in God and I expect a just judgement. Thank you

7 for allowing me to express my thoughts.

8 JUDGE POCAR: Thank you, Mr. Martinovic. You can sit down. This

9 concludes the appeal. I would like to -- before adjourning, I would like

10 to, on behalf of the Bench, to thank the parties for their submissions,

11 and for answering the questions posed by the Bench. I would like also to

12 express our thanks to all the staff who had a role in this meeting, and of

13 course to the interpreters that made our hearing more efficient.

14 The hearing stands now adjourned.

15 --- Whereupon the hearing adjourned at 4.16 p.m.