1 Tuesday, 4 April 2006
2 [Prosecution closing statement]
3 [Open session]
4 --- Upon commencing at 9.04 a.m.
5 [The accused entered court]
6 JUDGE AGIUS: Good morning to you, Madam Registrar. Could you
7 call the case, please?
8 THE REGISTRAR: Good morning, Your Honours. This is case number
9 IT-03-68-T, the Prosecutor versus Naser Oric.
10 JUDGE AGIUS: I thank you. Mr. Oric, can you hear the
11 proceedings, follow the proceedings in your own language?
12 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies
13 and gentlemen. I can hear you well and I understand the proceedings in my
14 own language.
15 JUDGE AGIUS: I thank you and good morning to you.
16 Appearances for the Prosecution?
17 THE ACCUSED: [Interpretation] Thank you.
18 MS. SELLERS: Good morning, Your Honours, I'm Patricia Sellers
19 Office of the Prosecution. With me today is co-counsel,
20 Ms. Gramsci di Fazio, Ms. Joanne Richardson, and our case manager is
21 Ms. Donnica Henry-Frijlink.
22 Good morning to the Defence.
23 JUDGE AGIUS: I thank you, Ms. Sellers, and good morning to you
24 and your team.
25 Appearances for Naser Oric?
1 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good
2 morning to my learned friends from the OTP. Vasvija Vidovic and John
3 Jones for the Defence of Mr. Naser Oric. We have with us this morning our
4 legal assistants, Ms. Adisa Mehic, Ms. Jasmina Cosic, and our CaseMap
5 manager, Mr. Geoff Roberts.
6 JUDGE AGIUS: I thank you, Madam, and good morning to you and your
8 Any preliminaries?
9 MS. SELLERS: No preliminaries on the side of the Prosecution,
10 Your Honour.
11 JUDGE AGIUS: On the Defence side?
12 MS. VIDOVIC: [Interpretation] No, thank you.
13 JUDGE AGIUS: I thank you both. I think I can give the floor to
14 Mr. Di Fazio to conclude on his part of the closing arguments for the
15 Prosecution. Take your time, Mr. Di Fazio. We are not in a hurry.
16 MR. DI FAZIO: Thank you, Your Honours. I will stop shortly,
17 after concluding this part of my submissions, but I will make a small
18 guest appearance later in the day following Ms. Richardson's submissions,
19 and that will be on the issue of witnesses and how to treat their
20 evidence, the issue of hostile witnesses that was raised by the Defence.
21 But if I can return now to matters that I was addressing you on yesterday,
22 just a couple of things from yesterday.
23 The reference to Mustafa Salihovic being -- said to be the note
24 taker of P84, if Your Honours please, is at the transcript in T-8967 to
25 68. One other matter that I wanted to raise to you about P84 is
1 concerning its subjectivity or objectivity, is the fact that it was
2 certified at the back of the document. That in itself is evidence that it
3 was intended to be some sort of official document. You'll find the
4 certification at the very back of the document. And that also lends
5 weight to the submission that it was not a document riddled with
6 subjectivity or useless because of subjective input.
7 The other matter that I very briefly wanted to raise with you,
8 it's perhaps a little obvious, but it needs to be made, it's, of course,
9 not just documents that support documents that are uncommented upon. It's
10 other evidence in the case. Nothing illustrates it better than the
11 example of the document raised by my colleague, Ms. Sellers, yesterday.
12 That was P25. That's, I believe uncommented on, and I believe has no
13 chain of custody. Yet the accused himself, as Ms. Sellers pointed out to
14 you yesterday, commented on the document itself. That is a document that
15 the Defence complains has shortcomings because it was never shown to a
16 witness. Well, you can see that's an example of how evidence in the case
17 can simply take care of that consideration completely in certain
18 circumstances. So it's not just documents supporting each other, it's
19 other evidence as well.
20 Can I turn now to the issue of forensic evidence? Yesterday I
21 made some submissions to you on the -- what I submit was the more cautious
22 and moderate approach of the -- Dr. Fagel and Dr. Kerzan when compared to
23 the evidence of Professor Bilic.
24 Just by way of illustration, let's just look very briefly at P75.
25 You don't need to look at the actual content of it. That's the document
1 dated the 26th of May and is an expansion of the Srebrenica TO Staff from
2 seven to ten members so it comes -- it's created on the face of it very
3 shortly after that all important Bajramovici meeting. That was objected
4 to by the Defence. It was emphatically declared by Professor Bilic not to
5 be by Naser Oric. You can see -- you can see it in -- I believe it's
6 annex B to the Prosecution's final brief, which sets out all of the
7 results of, inter alia, amongst other things, of documents that were
8 examined by all three experts and you can see the results there. Highly
9 probable according to Fagel, not by Naser Oric, according to Professor
10 Bilic; written by Naser Oric, according to Dr. Kerzan.
11 This is also a document from the Sokolac collection as well. So
12 that deals a double blow, firstly to any suggestion of conspiracy or the
13 work of a seasoned Serb forger and secondly -- sorry, I withdraw that. It
14 certainly deals a blow to that conspiracy theory. And secondly, of
15 course, it's a very damaging document because of the actual content
17 The Prosecution expert, Dr. Fagel was in the Prosecution's
18 submission probably the best placed of all the experts, handwriting
19 experts, to give you in -- opinions. His qualifications were clearly
20 impressive. His own qualifications, his experience, and his ongoing
21 contact with other experts in the field. He had no rational or explicable
22 reason to colour his conclusions or to be influenced by consideration --
23 other, outside considerations in reaching his conclusions.
24 And most importantly of all, he had a really good range of known
25 signatures, the best of all three experts, to use as his tool in comparing
1 the questioned signatures. He had, I can't recall off the top of my head
2 now, but over 30, if I recall, known signatures of Naser Oric to use in
3 coming to his conclusions, which is far better than both Kerzan and Bilic.
4 Far better. And it permitted him to have a far better view of natural
5 variation in the signatures and, of course, natural variation is, in the
6 Prosecution's submission, the sort of thing, the sort of features that
7 Professor Bilic hung his hat on. The dot, you recall the dot, and the
8 distance of loops and so on from other structures in the signature and so
9 on. So he was able to observe, as I said, far greater variation. He's in
10 a far better position to be able to tell you whether something is the
11 result of the forger's lack of skill or whether it's natural variation.
12 It's something that is important in the Prosecution's submission.
13 Coming back to P75, it also is relevant to the issue of the
14 Hamdija Fejzic signatures.
15 Would Your Honours just bear with me for a moment?
16 [Prosecution counsel confer]
17 MR. DI FAZIO: If you accept the evidence of Dr. Fagel and
18 Dr. Kerzan on P75, namely that it's Naser Oric's signature or extremely
19 likely to be Naser Oric's signature, then it -- the conclusion of
20 Professor Bilic that the other signature that appears on P75, namely that
21 conclusion that it's a forged signature or not the signature of Hamdija
22 Fejzic, carries far less weight in the Prosecution's submission. It's
23 most unlikely in the Prosecution's submission that you'd have the
24 juxtaposition of one known -- one genuine signature, this is if you accept
25 the two experts. I say you should. But it's very unlikely that you have
1 them both together -- forgery and -- or it's just not explicable or
2 comprehensible reason why that should be so. And in the Prosecution's
3 submission, if you -- as I said, if you accept the evidence of Kerzan and
4 Fagel, that's going to throw a lot of doubt, should cause you a lot of
5 misgivings about the other body of evidence of Dr. -- Professor Bilic,
6 about the Fejzic signatures. Finally on the --
7 JUDGE AGIUS: Mr. Di Fazio, would you accept that any case of any
8 expert, calligraphic expert or handwriting or signature expert, that
9 expert notwithstanding his or her expertise, could be completely right in
10 some conclusions and absolutely wrong in others?
11 MR. DI FAZIO: As a matter of a possibility, I would have to, as a
12 matter of reason, accept that. Not just a handwriting expert, any expert
13 in any given field.
14 JUDGE AGIUS: At the moment we are talking about handwriting
16 MR. DI FAZIO: Okay. In the case of handwriting experts, I can't
17 suggest to you that that is a matter much impossibility.
18 JUDGE AGIUS: I think we need to understand what your position
19 is. As regards Fagel and Kerzan, I think we completely understand what
20 you are submitting. In regard to Professor Bilic, are you submitting that
21 all his findings should be ignored?
22 MR. DI FAZIO: Yes, yes. I'm submitting that --
23 JUDGE AGIUS: Even considering the difference in the burden of
24 proof between the Prosecution and the Defence when it comes to
25 authenticity of documents?
1 MR. DI FAZIO: I understand what Your Honours are saying.
2 JUDGE AGIUS: In other words, if the situation obtains where
3 Professor Bilic has examined this exhibit, which neither Mr. Kerzan and/or
4 Mr. Fagel or Mr. Koeijer have examined and he's come to a specific
5 conclusion, are you submitting that because, according to you, Fagel and
6 Kerzan are more reliable than Professor Bilic is, therefore, logical or --
7 logical conclusion should be that all Professor Bilic's findings ought to
8 be thrown overboard when the burden that the Defence has in that regard if
9 they take it upon themselves to prove that a particular document is forged
10 or is not authentic, theirs -- the burden of proof is not like yours.
11 MR. DI FAZIO: No. I understand that, Your Honours. I appreciate
12 that and that's a very valid point. All I can say is this is a common
13 problem that all courts face when they have experts of competing views and
14 unfortunately courts are charged with having to make decisions about that
15 sort of evidence. Now, if you can't dismiss what Bilic said as being
16 either unreliable or not correct, if you can't say that, then I suppose
17 you would have to accept for the possibility that what he says may be --
18 may be correct. And then you would have to look at all of the other
19 evidence in the case in deciding on the genuineness of the documents but
20 the Prosecution -- you can never get away from that particular problem,
21 any Prosecution can never get away from that particular problem, and the
22 Prosecution's submission is, however, that you've got to look at all of
23 the handwriting evidence together, in its entirety, and you can, when you
24 do that, reject the evidence of -- you're entitled to reject his evidence.
25 You're perfectly entitled to do that and you're entitled to reject it
1 either as not reliable enough for you to rely upon it, or, as simply
3 JUDGE AGIUS: I put this to you because apart from this aspect
4 that I have just mentioned, there is also some -- there are also some
5 documents that have been examined by both Mr. Fagel and Mr. Kerzan, two
6 that you have more or less put on the same level, and they disagree
7 amongst themselves as well. Documents that Mr. Fagel said, plus plus,
8 Mr. Kerzan says one plus or even zero or neutral. And vice versa.
9 MR. DI FAZIO: It's significant though that where Dr. Kerzan
10 differs from Fagel he differs only that he couldn't come to any particular
11 conclusion. And there, it's a fundamental difference from
12 Professor Bilic, who in those particular cases was emphatic this is not
13 the signature of Naser Oric. And one would have thought that in those
14 circumstances, that Dr. Kerzan would have been able to, if indeed those
15 signatures do display features that clearly point to them not being the
16 signatures of Naser Oric, that he too would have reached that conclusion.
17 JUDGE AGIUS: All right. Let me not interrupt you any further.
18 MR. DI FAZIO: Thank you, Your Honour.
19 Your Honours, just returning to Fejzic, if I might just pause
20 there, will you permit to have a think about what Your Honours have raised
21 and if necessary I might revisit this issue for about four or five minutes
22 on Friday and if -- so that I can gather my thoughts about it. It's a
23 good point and the Prosecution is not trying to evade it. I'll have --
24 perhaps return to you on this very briefly on Friday.
25 JUDGE AGIUS: I wasn't suggesting that you were trying to avoid,
1 Mr. Di Fazio. In fact, you will have every opportunity -- not just you
2 but the Defence, of course, to elaborate on any argument that you need to.
3 MR. DI FAZIO: Yes, thank you.
4 The other issue concerning Fejzic's signatures is this: You can
5 see from annex -- what -- annex B, that the results of his -- the results
6 of Professor Bilic's conclusions most probably not by -- sorry, would
7 Your Honours just bear with me for a moment?
8 Yes. In relation to P74, P73, and P75, not by Hamdija Fejzic.
9 Those signatures were never provided, the known signatures were never
10 provided. The Prosecution has addressed you in its closing brief, final
11 brief, on this, at paragraph 43. We comment that it's extraordinary that
12 an expert report relying on a number of supposed non-contentious documents
13 as the touchstone for analysing disputed documents does not include those
14 very signatures. It's, in the Prosecution's submission, the failure to
15 provide those known signatures is really very damaging to the evidence of
16 Professor Bilic. The Defence reply is also inadequate. Paragraph 106,
17 they make the submission that it was not the decision of Professor Bilic
18 but that of counsel. The point the Prosecution makes is that that's just
19 beside the point. Regardless of whose decision it was, the fact is that
20 the controls, the nine signatures, were not made available to you and that
21 must have a devastating effect on the evidence of Bilic. It essentially
22 it means that the tool for testing his evidence, namely cross-examination,
23 was emasculated, so to speak. You can't do it. You can't test it in
24 cross-examination unless you've got the known signatures.
25 If Your Honours please, that completes my submissions on the
1 documentation. As I said I may return to it briefly on Friday. Just to
2 address you on this other issue that Your Honours raised this morning.
3 But if I do, I shan't be long.
4 I want to turn now, if Your Honours please, to the attacks, one
5 aspect of the attacks.
6 The Prosecution submission is that there is evidence for -- in all
7 of the attacks of soldiers or fighters participating in the burning of
8 villages. I don't propose to go through all of that evidence and
9 recapitulate, sorry, restate it all. It's contained in the Prosecution
11 The Defence, in its closing brief, at paragraphs 1420 to 1424
12 dealt with the topic of the impossibility of dealing with civilians at the
13 attack sites. And they were essentially, as I understand it, two defence
14 submissions. Firstly, it's well known that the destruction was caused by
15 civilians, and I understand that to be a reference of destruction by fire.
16 It was caused by civilians. I'm not ignoring the other Defence theories,
17 of course, but -- of Serb counterattack, aerial bombing, and so on, but,
18 as I understand it, one of the more significant -- or a significant factor
19 in the causation of the burning, who caused it, was the civilians. And
20 the second is that they were impossible to control.
21 The Prosecution submission is that far from being impossible to
22 control, the -- both soldiers and civilians burnt at the villages, at the
23 attack sites. When they did so, command responsibility attaches to the
24 soldiers who burnt. If those soldiers at the attack sites aided and
25 abetted the civilians in the burning of dwellings and structures, then
1 responsibility also attaches and that's been dealt with in the Prosecution
2 brief at length. I don't intend to go through the law or recapitulate
3 that. It's all been set out. It's fair to say that the Defence ought to
4 paint a picture of milling and desperate and uncoordinated and
5 uncontrolled civilians who were gathering around in large numbers, and the
6 reason for that is clear. It's firstly to attribute some or all of the
7 destruction solely to civilians, and to -- furthermore to establish that
8 any soldiers who were there were not aiding and abetting the acts of
9 destruction carried out by civilians.
10 Aiding and abetting, as Your Honours can see from the Prosecution
11 final brief, paragraph 203 consists of assisting, encouraging, lending
12 moral support to the perpetration of a crime so that it has substantial
13 effect with the knowledge that the conduct will assist.
14 There is on the Prosecution case a clear policy or pattern of
15 burning that emerges from the -- from the evidence in the case. It was an
16 ongoing activity spread over a period of time. The Prosecution final
17 brief has addressed you at length about -- on that issue. You can recall
18 the evidence of Pyers Tucker on the Serb concerns over the issue of the
19 burning of villages and how that concern sharpened beyond what were their
20 normal concerns in late 1992 and early 1993. And in the discussion on
21 generalised evidence of burning, there is also reference to other Serb
22 documents that clearly show a Serb preoccupation with the practice of the
23 burning of villages in the area.
24 So this undermines any suggestion that the burning was the
25 spontaneous result of uncontrolled civilians and rather points to the
1 phenomenon as being far from that.
2 There is clear evidence in the case that at the time of the
3 attacks in -- on the various villages, both civilians and soldiers burnt
4 together. On the same occasions, often in close company with each other.
5 I know what all the Defence arguments concerning lack of uniforms and the
6 inability to distinguish. On the other hand the Prosecution submits to
7 you that the evidence of the witnesses, when they described fighters, is
8 generally pretty reliable. They were able to -- they felt happy in their
9 own minds. They were able to see if people were armed, wearing camouflage
10 uniforms or parts of camouflage uniforms, and in the Prosecution's
11 submission, that's there for you to decide and there is nothing further
12 that I want to add to it.
13 But the fact that they were both engaged in burning in the same
14 location at the same time in the Prosecution's submission is evidence of
15 the soldiers aiding and abetting the civilians in the act of burning or
16 torching the villages.
17 To return to that issue of the civilians acting or cooperating
18 with the soldiers, I just want to look at some aspects of the attacks.
19 Firstly the attacks were, on the Prosecution case, surprise attacks. Just
20 give me a moment, please.
21 Yes. They were surprise attacks. The element of surprise in this
22 situation was absolutely crucial, and it was particularly so in the case
23 of Poljandt [phoen], attackers such as the Muslim fighting forces in this
24 case where they were advancing into what on the Defence case are heavily
25 fortified military compounds or villages. That element of surprise would
1 have been utterly, totally crucial for the successful outcome of any such
3 And that's why there is evidence of a number of the attacks at
4 least occurring at dawn or thereabouts.
5 And it was imperative therefore that in order to preserve that
6 civilians needed to cooperate with the soldiers and vice versa. The
7 civilians knew their role at the start of the attack. The fact of
8 convergence of civilians at attack sites also indicates a degree of
9 working together. The Defence case, of course, is that everyone knew the
10 attacks, the attack site, and they couldn't be stopped from gathering.
11 The Prosecution submission is that that is simply not so, in the
12 evidential scenario in this case. It was a matter of life or death.
13 Success or failure of an attack was a matter of life or death. It was
14 imperative that the element of surprise be maintained and is imperative
15 therefore that the civilians have to have had some sort of understanding
16 of their role at the attack sites.
17 And Kada Hotic -- excuse me. Kara Hotic, who testified on behalf
18 of the Defence, demonstrated how easy it was to simply keep the civilians
19 away. That was the idea. She was talking about letter son, who was a --
20 who would go off to fight. She said, "I didn't know what time the
21 fighters would leave. I didn't see that and I couldn't always know
22 something like that. Even when my son was leaving the house, sometimes he
23 would go to his friends and he wouldn't even say anything to me. He
24 wouldn't say goodbye. This happened also." That's at 9809. That's a
25 simple demonstration, if Your Honours please, of how, if fighters wanted
1 to keep the attack site quiet, concealed, from other civilians, it was
2 possible to do so, and it's even more imperative if the element of
3 surprise is one of the crucial factors in your ability to successfully
4 carry out an attack as it must have been in this case with Muslim fighters
5 who were probably not as well armed as the Serbs on the Defence case.
6 The civilians also knew what to do at the attack sites. Kada
7 Hotic also testified about that need to keep quiet at the attack sites and
8 she said, "Everyone was aware that they had to be quiet so that they
9 wouldn't be noticed." That's at 9810. And at 9815 of the transcript she
10 said there was a kind of implicit agreement. And this is a picture that's
11 at complete variance with the Defence case of uncontrolled melee there.
12 So there is clear evidence of the civilians and the fighters having some
13 sort of working understanding.
14 There is also evidence that the attacks were committed to obtain
15 food as well as other strictly more military objectives, and it is the
16 Prosecution's submission that they, the civilians, had to play a vital
17 role in that. It was imperative that they obtain as much food as quickly
18 and as fast -- as quickly and as comprehensively as they could in order
19 for these attacks to be carried out successfully, particularly so where
20 the food gathering is the main object of the attack. P84 contains
21 references to the envisaged obtaining of large quantities of food.
22 Sorry, would Your Honours just give me a moment?
23 There are references in P84 to I think at page 4 of P84 there is a
24 reference to the need to set up a warehouse and a reference to smuggling,
25 the need to stop smuggling of food. And in the context of what we all
1 know about what was going on at the time in 1992, that reference to
2 smuggling in P84, in the Prosecution's submission, can only be a
3 reference, reasonable reference, to stopping solo civilians taking away
4 food, food for themselves, and it does n the Prosecution's submission,
5 tend to indicate something level of organisation for the civilians. In
6 those circumstances, in all of those circumstances, in the Prosecution
7 submission, given the pattern of burning, the level of cooperation and
8 working together, the Prosecution's submission is that where the civilians
9 conducted burning, the fighters or soldiers must have been aiding and
10 abetting them.
11 Thank you, Your Honours. That now completes my submissions on the
12 attacks. As I said, I'll return briefly to address you on the issue of
13 hostile witnesses. So my colleagues will now address you.
14 JUDGE AGIUS: I thank you so much, Mr. Di Fazio.
15 Who is next? Ms. Richardson or Ms. Sellers?
16 MS. SELLERS: Your Honour, you return to me. Just give me one
17 second so I can move the lectern.
18 Your Honours, Mr. Di Fazio has already started our review of the
19 crime base. He looked at the attack sites. He raised a couple of points,
20 emphasised those that we have already briefed you in our closing brief.
21 But to further explain, I will now do that with what we refer to as the
22 first prison scenario and then Ms. Richardson will do that with the second
23 prison scenario.
24 You have heard the evidence, in particular, of Nedeljko Radic and
25 Mr. Zikic, two men who were imprisoned in the Srebrenica SUP building.
1 Nedeljko Radic comes around September 15th whereas Mr. Zikic comes after
2 the attack on Fakovici, the 5th of October. I would like to highlight a
3 bit of the evidence that leads you to questions of subordination, modes of
4 liability, and identification.
5 In respect to the attack at Podravanje that incorporated the
6 capture of Nedeljko Radic at the mine in Branka on the 25th of September,
7 and then also Mr. Dragutin Kukic, who dies in the first prison scenario,
8 along with the imprisonment of Bubanj, Saric, and the men in that very
9 first instance, I think the Trial Chamber should be reminded that the
10 Defence has often said they were beaten before they got to the prison.
11 And this is true. They did arrive at the prison in a state where their
12 bodies had suffered physical blows. And the only evidence related to
13 those physical blows is that they were inflicted on numerous occasions by
14 subordinates of Zulfo Tursunovic. Naser Oric's subordinates have already
15 beaten those prisoners prior to them arriving at the SUP. Zulfo
16 Tursunovic is aware that it's his men who had to take Nedeljko Radic in
17 particular to his house and then they received word that they could be
18 transported to the prison in Srebrenica.
19 Mr. Radic arrives in his underwear. His clothes have been taken,
20 which is not an unusual practice according to the Defence theory, that at
21 times clothes were taken from members of the enemy, often from dead
22 bodies. When Nedeljko Radic arrives in his underwear, it's uncertain how
23 many days that he was in his underwear before Cude a military police
24 officer who was a guard at the prison, admitted to by the Defence, gives
25 his a blanket.
1 I highlight this point because it has often been raised that the
2 beatings left wounds and injuries only on the body and not on the face.
3 Therefore, Naser Oric, if he were at the prison, and it's certainly the
4 Prosecution's position that he was at the prison, couldn't see any of the
5 injuries. Well, Cude gave a blanket to Nedeljko Radic but it's uncertain
6 and quite possible that the body of Nedeljko Radic, at times his legs and
7 his chest, were visible. Your Honours, the beatings that the men received
8 during the first prison scenario are beatings that the military police not
9 only had knowledge of, were aware of. They also assisted.
10 Now, we go back to that issue that we've raised many times, where
11 the military police, the guards at the prison. We've already spoken again
12 about Cude, Sabahudin Omerovic, listed as a military police officer. If
13 we go to the transcript of Nedeljko Radic at 3528 or 3613, more evidence
14 of police officers, whether they are giving guards, giving order to the
15 prisoners or they are functioning as guards. Now, one has to say, and the
16 Defence is certainly accepted, that Cude was the good guard. What made
17 him the good guard? He didn't allow people to come into the cell to beat
18 the prisoners. He knew that was incorrect. But Cude did open up the cell
19 and allow the prisoners to go out, at times one by one, to be beaten by
20 Kemo and Mrki. Was Cude afraid of Kemo, afraid of Mrki, or was this where
21 the one time his good conscious necessary was not in effect?
22 The Prosecution does not in any way try to speculate about motive
23 but by opening the door to the cell, and allowing the men to be beaten,
24 sequentially, he has facilitated those beatings. He has assisted those
25 beatings, perhaps unwillingly, perhaps regrettably, but he has aided and
1 abetted in the beatings of the prisoners in the very least by Kemo and by
3 We have other information too, when the turnkey is present. It's
4 present when Kemo urinates into the mouth of Nedeljko Radic and Mrki is
5 present also. This reference to be 3691 until 3692.
6 In the very least, Cude knew the difference, he knew that he could
7 prevent and he knew what it meant not to prevent the beatings.
8 Another matter that the Trial Chamber should consider, and this
9 goes to several issues but in particular inquiry notice of Mr. Oric during
10 the first prison period, is that his deputy, Akif Ustic, came to the
11 prison. This is at the transcript 3623. Akif Ustic comes to the prison,
12 once again we have a military presence at the prison, and he assures the
13 prisoners, "We will treat new regard to the Geneva Conventions." Now it's
14 not the Prosecution's position that Akif Ustic, Zulfo Tursunovic, or Naser
15 Oric knew every provision of the 4th Geneva Convention in regard to
16 civilians or the 3rd in regard to prisoners of war. But they certainly
17 knew that there were legal safeguards that they were to respect in regard
18 to detaining prisoners of war and civilians. And they assured the
19 prisoners, Akif Ustic assures the prisoners, "We will treat you with
20 regard to the Geneva Conventions."
21 Between Zulfo Tursunovic and Akif Ustic, Naser Oric is certainly
22 aware that there are prisoners and that there are duties in regard to the
23 prison, these prisoners. The Trial Chamber should not overlook the
24 significance of this evidence.
25 Furthermore, the Trial Chamber should understand that the visitors
1 to the prison do not include the civilian war president. Hajrudin Avdic
2 did not come to the prison. Mr. Bogilovic does not come to the prison,
3 nor his deputy Nurija Jusufovic. This is not the matter of a civilian
4 authorities. Now, the Defence would want us to believe that because there
5 were 11 prisoners, really Serb citizens, detained from Karno in the month
6 of August, and for that we have a handwritten note to Avdic, first name
7 Avdic, saying, "People are detained. What should I do with them?" They
8 would want that one-time experience of finding a link between persons
9 involved in the War Presidency to be proof that the War Presidency had the
10 responsibility for the prisoners or in the very least the responsibility
11 of Mirzet Halilovic who they know had responsibility for the prisoners.
12 The evidence is not only not convincing. There is a bit of
13 illogic. There is certainly no follow-up. Why didn't any members of the
14 Presidency come to the prison or arrange the exchange, even the first one
15 that failed, talking on the radio. Naser Oric did that with the prisoner
16 Sadic. It wasn't even the liaison person. Hamdija Fejzic didn't exercise
17 his executive role there to be the link between the military and the War
18 Presidency in regard to the prisoners. The prisoners' affair was a
19 military affair. Detained, processed, and exchanged, and guarded. These
20 were the affairs of the Srebrenica armed forces.
21 The timing is crucial. The Defence attempted to have
22 Mr. Bogilovic state that it was really the military police who were the
23 subordinates to the civilians and on cross-examination -- and right now
24 I'm referring to transcript page 6430. But Mr. Bogilovic could not agree
25 with them that the military police came under the War Presidency prior to
1 his having a special supervisory relationship to Mirzet Halilovic. So
2 from the moment that the prisoners were picked up September 25th, October
3 5th, we are talking about the responsibility of the Srebrenica armed
4 forces commanded by Naser Oric. The War Presidency had no responsibility,
5 doesn't appear that they had any administrative tasking in regard to the
6 prisoners. The Defence theory of Karno shows that there were civilians
7 that were detained and sometimes the War Presidency involved themselves in
8 it. It can show nothing more than that.
9 The only other time that we have a civilian presence near the
10 prisons is Zeli [phoen], who happened to stop by a stretcher. But that
11 will be addressed in the second prison scenario.
12 The exchange of prisoners is important. It's vital. It's the
13 ability to get fighting men back and regrettably dead soldiers back. I
14 believe that there were officers, Lieutenant Rex Dudley and the CanBat
15 officers, who talked about the question of morale that was involved in
16 knowing that if you fell during battle on the enemy line, that your body
17 would be brought home to bury, and I think that that was taken very
18 seriously, and as a result, the matter of prisoners is very serious
19 because that is what we use for exchange. After Akif Ustic is killed,
20 immediately, immediately, the prisoners will be exchanged.
21 That is the next subject that I'd like to talk about, issues and
22 evidence around that exchange. Because the Defence has now thrown a
23 theory of the Naser Oric look alike, Mrki, being present on the night
24 prior to the prison exchange. They would have Your Honours consider that
25 it was Mrki who asked the prisoners about Akif Ustic, conceding that Mrki
1 Omerovic was a member of Akif Ustic's unit and therefore had emotional
2 ties and was extremely upset at the death of Akif Ustic. If he was a
3 member of the unit then that places him within the Stari Grad unit that's
4 based in Srebrenica, places him as a subordinate from the very beginning,
5 under Naser Oric. But the theory of Mrki being present in the room that
6 night doesn't hold. It's because Nedeljko Radic, who at this point in
7 time, has been beaten several nights by Kemo and by Mrki, he recognised
8 who Mrki is and who is not Mrki. He was able to come back to us the day
9 after his first day of giving evidence in court and correct himself and
10 say, well, Mrki had the uniform. He had a uniform on, as a matter of
11 fact, that looked like Naser Oric's because it had lilies on it. He never
12 once said, and Mrki himself looks like Naser Oric. Spoke about them as
13 two separate individuals.
14 Nedeljko Radic wasn't certain whether Mrki was in the room the
15 night that Naser Oric asked the prisoners, don't you know about Akif
16 Ustic? The reason he wasn't certain could only assist Your Honours in
17 understanding that he was certain that Naser Oric was not Mrki. Now, one
18 could say Naser Oric came to the first prison and identified himself, "I'm
19 Naser Oric." The Defence would have you believe that's Mrki fooling
20 around again, making us laugh, that's a joke. That can't be true. The
21 evidence shows that when Naser Oric came into the SUP building there was a
22 hush that came about. One would think that when Mrki walked into the SUP
23 building people were ready for a joke. There would be no lowering of the
24 volume of the hush because the commander was there. It was Naser Oric who
25 walked into the prison, into the cells.
1 The Defence theory of Mrki is one of those double knots that
2 they've tied a little too tight at the end. Not only it doesn't make
3 sense, it points in the opposite direction. We have prisoners who know
4 Naser Oric. Sadic knew him from before the war, is taken out of the cell,
5 conducts the radio calls to the Serb authorities related to the exchange.
6 Nedeljko Radic, who Sadic informs "that's Naser Oric." But after the
7 first time that Nedeljko Radic and the other prisoners see Naser Oric then
8 they recognise him and the subsequent times they see him, in particular
9 when they are taken out of the room on the night before the exchange.
10 Zikic sees Naser Oric, they speak, might be a little confused about when
11 and whom Naser Oric relates the Arkan story - excuse me - about when and
12 whom Arkan marries his wife, such a big event but he knows that Arkan
13 married a famous singer. When he came to testify here he confused those
14 facts. I don't think that Naser Oric told Mr. Zikic at that point in time
15 anything about the marriage of Arkan. I think he was talking about the
16 gun that he had. I think he was talking about that ambush that made him
17 famous. And I don't think that Mr. Zikic forgets that conversation or
18 with whom he had it.
19 From that point on, if he didn't know Naser Oric, he certainly
20 knew him and recognised him. Nedeljko Radic sees Naser Oric afterwards,
21 states that he's 100 per cent sure, sees Naser Oric in a film on a horse,
22 and then recognises him again when he's brought to The Hague. Now, the
23 Defence tried to shake that recognition. Mr. Nedeljko listened a bit
24 amused, but if you grow a beard, if you put on weight, if I know you I
25 know you, I recognise you. It doesn't mean someone can't change. We have
1 three very good instances of recognition, identity, in the first prison
3 We have confirmation Naser Oric wears a uniform, that his deputy
4 comes to the prison and that his future deputy, Zulfo Tursunovic, his
5 subordinates actually escort the prisoners.
6 The guards have aided and abetted the physical beatings. The
7 Defence then tries to run to what appears to be almost another theory.
8 Well, Mirzet Halilovic was punished. There was no failure to punish. He
9 was removed. They say "I reported him to the War Presidency," still
10 trying to make Your Honours embellish the War Presidency as having
11 responsibility. Well, let's assume that part of what they are saying is
12 true. Let's assume that Naser Oric exercised his duty to punish Mirzet
13 Halilovic, even under, let's say, a joint command theory. Shows he's
14 capable, shows he can act, shows that it is a horrible thing to maltreat,
15 mistreat prisoners, particularly to kill prisoners. This should be more
16 than sufficient evidence to Your Honours that Naser Oric can act, does
17 have effective control, when he chooses to exercise it, and more
18 importantly, that act of dismissing Mirzet Halilovic should put him on
19 inquiry notice about the prison, because something doesn't make sense.
20 Now, the Prosecution committed a grammatical error in the closing brief.
21 We forgot a period. We might have misled the Trial Chamber and, with
22 regrets to the Defence, of ever suggesting that Naser Oric was in the room
23 in the cell when the body of Kukic was in the cell. There should have
24 been a period that said Kukic's body was there until 10.00 in the morning,
25 period, when Naser Oric came. Naser Oric came at a different time. The
1 body wasn't there. The body was gone, disappeared, missing.
2 He asked about Mr. Kukic and he's informed quite hesitantly that
3 he died of a heart attack. Why didn't he ask where was the body? I can
4 still exchange that. That suffices for me to receive bodies back of my men
5 back in return. Is the body buried in the church cemetery where other
6 prisoners was buried? Was the body taken to the hospital? The body
7 disappeared. Is this the person that Mirzet Halilovic beat to death?
8 Were the prisoners not telling me the truth? It wasn't a hard attack?
9 Oh, this is the person Mirzet killed? Should I ask Cude? One of the
10 guards? Anyone else? He said he'd leave it up to the military court.
11 That was their job. Oh, so was there a functioning entity of some type
12 who was supposed to look into that, that was military-based, and did they?
13 No. Naser Oric was able to punish. He failed to follow up
14 because the real information that he could have uncovered were the nightly
15 beatings by Mrki, Kemo, and the killing of Dragutin Kukic by Kemo. He
16 doesn't do that. The last time he comes to the prison it's because of Akif
18 And, Your Honours, I would like for you to look at small video
19 again from the prison, and whereas before, the Trial Chamber looked at the
20 video in regard to corroborating the evidence of Nedeljko Radic,
21 corroborating recognition by Mr. Saric of Naser Oric. I would ask you to
22 look at it again for a very different reason.
23 And this is P448, if you give me one second.
24 [Videotape played]
25 JUDGE AGIUS: Yes, one moment. For the record, the video starts
1 at -- why did they take it away? At 08 minutes 44.8 seconds. Thank you.
2 MS. SELLERS: Your Honour, I've just been informed that we are
3 having problems with the sound again. If you would give me a couple of
5 JUDGE AGIUS: Certainly, Ms. Sellers.
6 [Videotape played]
7 THE INTERPRETER: [Voiceover] What's the matter what happened to
8 you? I didn't dare say I hit an iron fence when I was getting out
9 tonight. Don't lie. You know I hit you and I have never hit a prisoner.
10 But I did hit you. Why didn't you say that you knew Akif Ustic? In that
11 short time I did not remember to say in all that fear. I only said that
12 this was the man, the son of Enis the barber. He's his deputy and he has
13 a mustache. But it was too late.
14 JUDGE AGIUS: Yes. For the record the video stopped at 09 minutes
15 36.6 seconds.
16 MS. SELLERS: Your Honour, the Prosecution has shown this video
17 this time because this video is evidence of Naser Oric failing to prevent.
18 The night before the prisoners are exchanged, he sees that the prisoners
19 are bloodied. He himself is mad because his deputy has been killed. What
20 he asked Mr. Saric is, "What happened to you?" There might even be a
21 question of, was this question asked the following day. But let's say we
22 are still in the room on the night before the exchange even though it
23 appears to be a past tense conversation, "What happened to you?" He
24 says, "I never hit a prisoner before. You know I hit you." Seems to be a
25 past tense conversation. "You know I hit you and I never hit a prisoner."
1 Naser Oric knows the difference between how one is supposed to treat
2 prisoners and how one is not supposed to treat prisoners.
3 Mr. Saric once again does what many people in powerless positions
4 do in front of authority, when they know that they have done something
5 wrong, they will say, Oh, I hit the door on the way out. But Your Honours
6 have to understand that in the room that night is the presence of, in the
7 very least, Kemo, the well-known, extremely violent Kemo.
8 The next day, who is given the task, the responsibility, to drive
9 the prisoners to the exchange going to Potocari? It's not the War
10 Presidency. It's Kemo. Kemo, who has just seen his superior commander
11 hit a prisoner, who has seen the prisoners bloodied. It's he who is given
12 the task to deal with the prisoners the next day. And so what happens on
13 the day of the exchange? Prisoners are taken out of the cell, two of the
14 prisoners make it to the truck, and that's Nedeljko Radic and Mr. Zikic.
15 The other two prisoners, Nevenko and Branko don't quite make it to the
16 truck prior to being taken off again. The Defence would have us believe
17 it was after they left the SUP but if we just look at the transcript at
18 3617 through 18 we'll see that they were taken back into the SUP where
19 Kemo was, and that's where the Defence admits they probably received one
20 of their worst beatings, probably one of their worst beatings. And the
21 next day we have one of those prisoners who succumbs to their injuries.
22 It's not part of our indictment. We are only talking about the cruel
23 treatment that inflected upon them.
24 And we have the visible injuries to Mr. Saric who the Defence says
25 maybe that happened on the day of the exchange. We are still in the SUP,
1 in the confines of the military part of the police. We have Kemo,
2 notorious, with these prisoners, and Naser Oric who saw them the night
3 before, know that is they have been beaten even warns Mr. Saric, "Don't
4 tell them I beat you. You know I only hit you once." Did not turn to
5 Kemo, did not say anything about, "I don't want anyone to touch these
6 prisoners until they get to where they are going, until they are
7 exchanged." He failed to prevent.
8 So, Your Honour, our worst case scenario, the first prison scene,
9 involves not just failure to investigate, further punish, punish Mirzet
10 Halilovic, but failure to prevent. The Prosecution has proved beyond a
11 reasonable doubt the cruel treatment, the death, superior authority, the
12 criminal acts of subordinates, be they in a direct chain of command, such
13 as Kemo, aiding and abetting by the guards. In essence we would submit to
14 you we have proven beyond a reasonable doubt counts 1 and 2 as they relate
15 to the prison scenario.
16 JUDGE AGIUS: While you're still on counts 1 and 2, you would have
17 certainly given attention to one of the submissions of the Defence in
18 relation to Kemo, and that is that Radic, if I'm not mistaken, repeatedly
19 refers not to Kemo Mehmedovic but to Kemo Ahmetovic. And this has been
20 made an issue by the Defence in their final brief. Do you have any
21 submissions on this regard?
22 MS. SELLERS: Yes, Your Honour. We would emphasise our
23 submissions that we placed in our reply. Mr. Radic did not know Kemo the
24 person. He should have said Kemo Mehmedovic. He said Kemo Ahmetovic but
25 he most often called him by the name that most people called him, Kemo
1 from Pale. As a matter of fact, Kemo from Pale was so notorious that,
2 like Madonna, he was just referred to as Kemo from Pale. Everyone knew
3 who that was.
4 Now, if -- if Mr. Radic had wanted to be less than truthful he
5 would have come here and said Kemo Mehmedovic I said that let me
6 straighten this up. He didn't know the last name. He wasn't from that
7 area. And there are situations when people are more known by their
8 nickname than by their actual name. I think technically, the Defence has
9 raised the issue as to the correct last name of Kemo. I do not think that
10 the Defence has raised or can succeed on its claim that Kemo from Pale was
11 the person or was not the person who beat the prisoners or killed
12 Mr. Kukic.
13 JUDGE AGIUS: But the point made by the Defence in their brief was
14 that during Radic's testimony, the possibility of him being mistaken about
15 the surname of Kemo was put to him and he repeatedly kept his position
16 that the Kemo that was there was not -- was Kemo Ahmetovic. In other
17 words, he never said - this is the submission of the Defence, obviously
18 I'm not commenting upon it, I'm just asking you to comment - he never
19 said, "Could be, it was Mehmedovic. I don't know. I didn't know the man
20 well. I may be mistaken in the name." When this was posited to him he
21 said, "No, it's Kemo Ahmetovic and I stick to that." And he stuck to
23 MS. SELLERS: Yes, Your Honours, and he stuck to his mistake. He
24 didn't try to change it but he knew he was speaking about Kemo from Pale.
25 JUDGE AGIUS: That's your submission. Okay. Who is next now?
1 MS. SELLERS: Next Ms. Richardson will talk about the second
2 prison scenario.
3 JUDGE AGIUS: Ms. Richardson, we will be having a break in 20
4 minutes' time roughly, 18 minutes' time.
5 MS. RICHARDSON: Good morning to Your Honours.
6 JUDGE AGIUS: Good morning to you.
7 MS. RICHARDSON: Your Honours, this morning I will conduct the
8 Prosecution's submission on the prison scenario. We call it the second
9 prison scenario, as it happened in the early part of January 1993
10 towards -- sometime after March. And it's a scenario that also deals with
11 the counts of murder and cruel treatment.
12 I will not rehash to Your Honours the testimony of the witnesses
13 who were here and testified extensively about the treatment they received
14 in the prison. I will just briefly go over some points that I think that
15 the Trial Chamber may find helpful to be reminded of.
16 And the first submission that the Prosecution at this moment would
17 make to the Trial Chamber is that based on all of the evidence of the
18 witnesses, including the survivors, the male prisoners who survived the
19 prison ordeal in Srebrenica in 1993 and the female prisoners, that the
20 Prosecution proved beyond a reasonable doubt that murder and cruel
21 treatment did in fact occur in the police station, as well as the building
22 behind the municipal building that we commonly -- we have referred to
23 quite frequently in the Prosecution's case as the prison. These beatings,
24 Your Honour, were committed by the guards of the prison as well as
25 soldiers identified by witnesses who were familiar with certain
1 individuals as soldiers, as well as by other individuals who were
2 permitted to enter both the police station as well as the prison to what
3 we consider a brutal and savage beatings of the male prisoners and as a
4 result a number of them died in the prison. And I will go over that
6 I would first like to discuss with you the first prison
7 scenario -- sorry, the police station in the second prison scenario, and
8 recount for you the testimony of Ilija Ivanovic who testified about being
9 beaten at the police station. And our Prosecution final brief deals with
10 this in paragraphs 412 as well as other areas and you may revisit it in
11 the transcript, 4004. And, of course, you may recall that Mr. Ivanovic
12 was here for some time and he testified extensively about the beatings he
13 received, the injuries that he received, some of which were permanent, and
14 he told Your Honours that he had been initiated into the police station by
15 being kicked, literally, in his back, into the cell where he banged his
16 head against a radiator rendering him unconscious. And you may recall
17 that he testified that when he arrived, Kostadin Popovic, Ratko Nikolic,
18 Milosav Milovanovic, aka Miko from Sase, Bogdan, and later Mile Trifunovic
19 also arrived. It's our submission, Your Honour, that all of the prisoners
20 were beaten based on his testimony and the testimony of Ratko Nikolic.
21 They were beaten during the time that they spent in the police station,
22 and as my colleague, Ms. Sellers, mentioned, it's the Prosecution's
23 position that the prisoners were under the prisoners were guarded by
24 military police, Your Honour, and I believe that a number of the document
25 that is the Prosecution has put forward bear that out. In addition to the
1 patrol reports, Prosecution Exhibit 16, the military police log, which
2 lists and details the Serb prisoners that were brought in, and logged the
3 information, personal details, et cetera. You may recall a number of the
4 witnesses verified the personal information that was found in both the
5 military log and other documents. Some of those documents were, we
6 believe, the product of the security organ headed by Hamed Salihovic.
7 I would also remind Your Honours of the testimony of 007, who
8 testified that he had arrived in Srebrenica from Cerska in the company of
9 Dragan Ilic, Jakov Dokic, Ande Radic [phoen], and Branko Sekulic came
10 later on. The Prosecution dealt with the documents which verified this
11 information, verified they were brought in by soldiers, and confirm and
12 corroborates our position that it was the military police based on their
13 patrol reports as well as the -- the military police log that they were in
14 charge of the prisoners. Naser Oric himself, during his interview,
15 testified that Hamed -- not testified, excuse me, but stated to our
16 investigators that Hamed Salihovic was charged with interrogating the
17 prisoners and taking notes from them, and the fact that the military
18 police were in charge of the prisoners. So there is no doubt, Your
19 Honour, based on the evidence presented during the Prosecution's case that
20 the guards were the military police at the police station.
21 You may also recall that the witnesses testified, both the
22 females, witnesses, Stana Stamenic, Milena Mitrovic, and the male
23 prisoners, Ande Radic as well, that after being detained at the military
24 police station they were then transferred to the prison.
25 Your Honour, these beatings continued at the prison. It's our
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 submission that the guards at the prison, as well as soldiers, were
2 responsible for the beatings, and I will address that in a moment, but
3 there is no doubt, and I believe that the testimony of the witnesses as
4 well as the medical documentation, proved beyond a reasonable doubt that
5 they were in fact brutally beaten to the point at which Kostadin Popovic
6 died, Milisav Milanovic died, Dragan Ilic died, Branko Sekulic died, and
7 we also submit that Jakov Dokic died.
8 You may recall that Ratko Nikolic testified at length about being
9 beaten and you can refer to his testimony in the Prosecution's final brief
10 at paragraph 420. You may recall that he testified that the prisoners
11 were brought out of the cell one by one and beaten, not as the Defence
12 would like to suggest that these beatings took place in this dark cell
13 where they were unable to identify who beat them. Ilija Ivanovic also
14 confirmed to you that he was taken out to the reception area and I will
15 deal with that shortly whether we get to the issue of identification.
16 I would just like to segue for a moment to the identification of
17 the individuals doing the beatings. Ilija Ivanovic testified that he was
18 beaten by Dzemo Tihic who he believed was a soldier, and the Prosecution
19 would like to point out -- at least highlight one clarification with
20 respect to what was stated in the Prosecution's final brief regarding
21 Mr. Ilija Ivanovic's identification of Dzemo Tihic as the person who beat
22 him. The Prosecution in fact stated in paragraph 416 that Dzemo Tihic
23 broke the cheek bone of Ilija Ivanovic, which is what Mr. Ivanovic
24 testified to. But then there was an error made because we later stated in
25 436 that it was Ahmo Tihic. However, just looking at those two
1 paragraphs, Your Honour, it was clear that there was a mistake in the
2 name. The information is exactly the same. And we stand by what
3 Mr. Ilija Ivanovic said in paragraph 416, that it was Dzemo Tihic who he
4 knew prior to the war that broke his cheek bone.
5 Mr. Ivanovic also testified that the people who were beating the
6 prisoners wore camouflage uniforms and civilian clothing and the
7 combination. And we believe, Your Honour, that this description of the
8 guards, also corroborated by Branimir Mitrovic who spent a substantial
9 amount of time in the prison, who also testified that the guards he
10 observed beating the prisoners wore both civilian and military clothing,
11 camouflage uniforms, Stana Mitrovic, Stana Stamanovic [phoen] testified
12 that it was the soldiers who wore camouflage -- that the guards were
13 wearing camouflage uniform as well.
14 Your Honour, I submit to you that you should not be distracted by
15 the description of the guards and be wedded to what they were wearing to
16 make a determination as to who the guards were and whether they were in
17 fact beating the prisoners. The Prosecution submits that the guards wore
18 camouflage uniform and civilian uniform, and as a result, Your Honour,
19 some of the witnesses may have been confused by the fact that they were
20 beaten by someone wearing civilian uniform and may not have equated that
21 person with being -- either being a soldier or a guard, and that they may
22 have somehow deduced that the civilian clothing meant that it was a
23 civilian beating them, and we would suggest to Your Honours that that is
24 not the issue. The issue is that they were beaten by the guards who wore
25 both civilian and camouflage uniform and that is what Your Honour should
1 consider as determining who did the actual beating.
2 It's our position again that the guards.
3 JUDGE AGIUS: I didn't quite follow the argument, to be honest
4 with you because you are suggesting that we shouldn't allow ourselves to
5 be misguided this uniform aspect. At the same time you are using the
6 uniform aspect and Mitrovic's testimony precisely to indicate that the
7 guards were, at least when they were wearing a uniform, soldiers.
8 MS. RICHARDSON: Yes, Your Honour, I can clarify.
9 JUDGE AGIUS: The onus of proof lies with you. It's not a
10 question of suggesting this or suggesting that. What you have to prove --
11 MS. RICHARDSON: I can restate the argument, Your Honour. My
12 point referring to the testimony of Stana Stamenic was the fact that there
13 were a variety of description of the clothing worn by the guards. And so
14 if one witness stated that you -- that testified before Your Honours that
15 civilian clothing worn by someone who beat him, that that person may have
16 concluded that this was a civilian, should not determine the issue, Your
17 Honour, and that the issue should be doesn't matter what the individuals
18 were wearing, because we have heard a variety of descriptions, worn by the
19 guards that what in fact Your Honour should consider is the testimony of
20 individuals who stated that it was the guards who beat them and not
21 necessarily link the clothing to the -- link the clothing to determine
22 whether or not the beatings were conducted by guards or civilians. I
23 don't know if I'm clear on that and I can say it again.
24 JUDGE AGIUS: I think I can understand what you're saying but
25 Judge Eser wore like to have another question.
1 JUDGE ESER: Just with regard to the issue of uniforms, you spoke
2 of camouflage uniforms, civilian uniform, and civilian clothing. Now,
3 when you speak of civilian uniform, what do you mean?
4 MS. RICHARDSON: If I stated civilian uniform, Your Honour, I
5 misspoke. It's civilian clothing. Indeed, the witnesses stated that the
6 guards wore camouflage uniforms, civilian clothing, and sometimes it was a
7 mixed combination. And my submission is that if a witness stated that it
8 was -- that they were beaten by someone wearing civilian clothing, that
9 Your Honours not consider that as determining or concluding that it was a
10 civilian who beat the prisoners. It is our submission that the guards
11 wore a combination of clothing.
12 Your Honour, I'm being told that it may be close to a break.
13 JUDGE AGIUS: Perfect. Let's have a break now.
14 Do you prefer 25- or a 30-minute break, Ms. Richardson?
15 MS. RICHARDSON: A 30-minute break would be better, Your Honour.
16 JUDGE AGIUS: We will have a 30-minute break and take it up from
17 there. After you, who will take it up.
18 MS. SELLERS: Your Honour, Ms. Richardson will take the next
19 session, and then I will state and then Mr. Di Fazio.
20 JUDGE AGIUS: And you anticipate you will finish today?
21 MR. DI FAZIO: Easily.
22 JUDGE AGIUS: I see it that way. All right. Thank you
23 --- Recess taken at 10.30 a.m.
24 --- On resuming at 11.04 a.m.
25 JUDGE AGIUS: Yes, I recognise Ms. Sellers.
1 MS. SELLERS: Yes, Your Honour, I with would just like the record
2 to reflect that we are joined by co-counsel Jose Doria this session.
3 JUDGE AGIUS: Okay. Thank you.
4 So, Ms. Richardson.
5 MS. RICHARDSON: Thank you, Your Honour. Before the break,
6 Your Honour, I believe the Prosecution were on the submissions that the
7 guards who were the ones beating the prisoners in the prison, as testified
8 to by Ilija Ivanovic, Branko Mitrovic who said he saw them beat
9 Mr. Ivanovic and others in the hallway and that the guards were wearing
10 a -- mixed clothing, sometimes they had uniforms, sometimes they wore
11 civilian clothing. It's our submission, Your Honour, that the guards were
12 the military police, just a continuation of their responsibilities from
13 the first prison scenario, this time under Akif Kurcic [phoen] whom the
14 Prosecution referred to in their brief, and I believe we have pointed to
15 the documentation which supports his appointment by the Srebrenica armed
17 Your Honour, Mr. Ratko Nikolic -- as we move to an aspect of the
18 prison which involves the murders of five prisoners, you may recall
19 Mr. Ratko Nikolic testified that he remembers Kostadin Popovic dying, he
20 remembers that Kostadin Popovic's body was taken away but before it was
21 taken away it was wrapped in a blanket, a note was put in with his name
22 and information, and then that this body was taken away. The Defence
23 would have you believe that this is not correct and that
24 Mr. Kostadin Popovic's body was never actually in fact recovered as they
25 sought to challenge the credibility of Dr. Stankovic's report and the
1 identification of Mr. Kostadin Popovic's body by his son, Nikola Popovic.
2 The Prosecution submits that the testimony of Nikola Popovic, that he
3 identified his father's body, that in fact there was a note with the
4 information that it was the clothing he was wearing when he was captured
5 as well as the gold tooth that we all heard so much about during the
6 cross-examination was what led him to believe that that was his father.
7 If the Court examines Dr. Popovic's autopsy report that deals specifically
8 with the autopsy of Kostadin Popovic, the Court will see what the
9 Prosecution submits based on a series of pictures is a note that is
10 referred to in the autopsy report itself with the information as testified
11 to by Kostadin Popovic. And as the Court examines the pictures that are
12 attached to Dr. Stankovic's report, the Prosecution invites the Court to
13 examine the pictures very carefully as the Court may -- well, the
14 Prosecution believe -- may observe is a note that was taken a picture of.
15 Of course, you can not read it but clearly there is a piece of paper
16 there that is attached to the report as part what was recovered on the
17 body of Nikola -- of Vladko Sinin Popovic [phoen].
18 Your Honour, the death of Dragan Ilic, the Defence would have you
19 believe that there is not such evidence to support his death. However,
20 the Prosecution would refer Your Honours to the testimony of 007 -- of
21 confidential witness 007 who testified that Dragan Ilic died, Your Honour,
22 as he was laying next to him following a beating. The Prosecution submits
23 that this is more than sufficient evidence of the death of Dragan Ilic and
24 that no further corroboration is needed as suggested by the Defence.
25 The death of Milisav Milovanovic, the Prosecution also addressed
1 in paragraph 86 of the Prosecution's reply brief, as well as in the
2 Prosecution's final brief, as well as Ilija Ivanovic testified to his
3 death, transcript 4074, and you should also be referred to the transcript
4 of C-0007 at 4636. There is no doubt that Milisav Milovanovic is the Mico
5 referred to in the Prosecution's indictment as well as in documents from
6 the Srebrenica -- that came out of Srebrenica which refers to the
7 prisoners, although the Defence would have the Trial Chamber believe that
8 there was no identification of Mico, the Prosecution submit that there was
9 substantial identification of Mico as Milisav Milovanovic by Ilija
11 Your Honour, the death of Branko Sekulic was also addressed by the
12 Prosecution in its final brief and we refer you to paragraph 440 to 441
13 dealing with the evidence of his death.
14 Now, I would like to turn to the next Serb victim for which the
15 Prosecution alleged murder occurred in the prison of the Srebrenica -- in
16 the prison in Srebrenica in 1993, and that is Jakov Dokic. The Defence
17 would have Your Honours believe that since Jakov Dokic was last seen alive
18 by 007 in the prison in Srebrenica that in fact the Prosecution has not
19 proven beyond a reasonable doubt that Jakov Dokic died in Srebrenica
20 prison. It's the Prosecution's submission, Your Honour, that based on all
21 of the evidence the death of Jakov Dokic was proved circumstantially, and
22 I would refer you to documents which support the fact that he was brought
23 into the prison, Prosecution Exhibit 16 which details Jakov Dokic being
24 brought in from Cerska with other prisoners such as Dragan Ilic, Brado
25 Pajic [phoen], Ande Radic. And witnesses testified that Mr. Dokic was
1 imprisoned with them and these witnesses were Ilija Ivanovic as well as
2 Ande Radic, and I would refer to you Prosecution final brief 436 and 442.
3 Prosecution Exhibit 45 also lists Mr. Dokic as one of the
4 prisoners that was imprisoned in Srebrenica along with Kostadin Popovic,
5 and if we could just take a look at that exhibit, which is now in
6 Sanction, as you can see Mr. Dokic is listed as the first individual and
7 this document is dated the 9th of February 1993. Towards the end you see
8 the names of Kostadin Popovic and Bogdan Zivanovic and it is alleged that
9 these individuals were already deceased and that the bodies of these
10 individuals as well as the above individuals were listed for being
11 exchanged. And this was a document that the Prosecution believes was
12 created by the committee of mediation and exchange.
13 The Defence would have you believe that Prosecution Exhibit 19,
14 which lists Mr. Dokic as having died, if we could just have that
15 illustrated on the Sanction, that this document does not support -- or
16 does not provide proof that Jakov Dokic died in Srebrenica as this
17 document also lists Rado Pejic as having died and that that was not true.
18 I believe what Your Honour should keep in mind with respect to this
19 document more importantly is that with the exception of Rado Pejic all the
20 other information on this document is true. You heard from multiple
21 witnesses about the fact that they were in prison with these individuals,
22 you heard that they were present when certain individuals died, including
23 Branko Sekulic as well as Dragan Ilic. That information is correct. They
24 are listed as having died. Ratko Nikolic was captured and you heard from
25 Ratko Nikolic yourself as well as Mile Mitrovic. I will not go through
1 all of the names on the document, Your Honour, but suffice to say that the
2 majority of the information is in fact true. The fact that Rado Pejic did
3 not die, I believe, is something that the Court should take note of but
4 should rely more importantly on the overwhelming amount of information
5 that is true.
6 Your Honour, the Defence would make much to do about the fact that
7 Ilija Ivanovic said that he heard that Jakov Dokic was alive and
8 Mr. Ivanovic never said he saw him, he never even give us any information
9 about who he heard this from except for the off comment that he was alive
10 and had been thrown out of Srebrenica by the defendant. I submit to
11 Your Honours that this information was not correct, Mr. Ilija Ivanovic
12 was, I believe, a bit confused about that and based on the testimony of
13 the father of Jakov Dokic who said that he's -- hasn't seen his son since
14 1992. I submit to Your Honours that Jakov Dokic is not alive and well and
15 living in Bosnia or any other country but in fact he succumbed to his
16 injuries that he received in Srebrenica as a result of the brutal beating
17 at the hands of the guards who we submit were the military police.
18 And, Your Honour, we believe that the evidence of the deaths of
19 the other prisoners such as Dragan Ilic and Kostadin Popovic, Milisav
20 Milovanovic and Branko Sekulic proves, if not directly but
21 circumstantially that Jakov Dokic as well succumbed to the injuries he
22 received as a result of the beatings.
23 Your Honour, this Tribunal has recognised that that can be
24 inferred circumstantially from the evidence if the facts may unavoidably
25 lead to this conclusion, and it's the submission of the Prosecution that
1 the facts do -- does in fact lead to this conclusion. In the Kunarac
2 Trial Chamber, it was held that proof of death beyond a reasonable doubt,
3 that a person was -- murdered does not necessarily require proof that the
4 dead body of that person had been recovered. The fact of the victim's
5 death can be inferred circumstantially from all of the evidence presented
6 to the Trial Chamber.
7 The Trial Chamber also added, Your Honour, that a victim's death
8 may be established by circumstantial evidence provided that the only
9 reasonable inference is that the victim is dead as a result of the acts
10 and the omissions of the accused. I believe, Your Honour -- the
11 Prosecution is of the opinion, Your Honour, that this is the exact
12 scenario we have here, that based on all of the facts of the witnesses,
13 the brutal beatings of the prisoners, the ones that died thereafter, the
14 fact that Mr. Dokic was still in the prison when he was last seen as
15 confirmed by confidential witness 007, the Prosecution is of the opinion
16 that it need not have produced the body. Our Tribunal jurisprudence does
17 not require that. And that the Court -- that the Trial Chamber may come
18 to a conclusion based on all the evidence that has been presented that
19 this is the reasonable inference to be drawn.
20 With respect to the Cerska prisoners, Your Honour, the issue of
21 causation has also been raised with respect to the prisoners brought in
22 from Cerska and as Your Honour recalled, the witnesses were very candid in
23 that they had been beaten. You heard from Ande Radic -- Radovic, excuse
24 me, who stated that the male prisoners brought in with her who had been
25 beaten. Ivanovic also said, yes, they told him that they had been beaten.
1 There is no doubt and the Prosecution concedes that they were not treated
2 well in Cerska. However, Your Honour, as they were brought in Srebrenica,
3 their beatings continued and it was a result of these beatings,
4 Your Honour, that they died and not as a result of some opportunistic
5 disease associated with lice or malnutrition as the Defence seems to
6 contend. The Prosecution stands by its submission in the reply brief that
7 in fact, Your Honour, if that were the case, the women may have also died
8 as a result and there is no evidence of that, and it is most likely,
9 Your Honour, that they died. A reasonable inference can be drawn, logical
10 conclusion, and, as well, based on the direct evidence of witnesses who
11 stated that the Cerska prisoners looked even worse following their
12 beatings in Srebrenica.
13 You may recall Andja Radic said she went to see the prisoners and
14 she was surprised. She expressed that she was surprised that they looked
15 even worse. Ilija Ivanovic said that they looked even worse and he
16 particularly, upon being cross-examined on this issue, said, absolutely
17 not, they did not die from the Cerska -- from the wounds received from
18 Cerska and he refuted that suggestion placed by the Defence.
19 I believe the Prosecution is of the opinion that these witnesses
20 were credible, and that in fact that their deaths were caused by the
21 beatings. In any event, Your Honour, having said that, a very fundamental
22 principle in criminal law is that you take your victim as you find him.
23 That principle applies to this Tribunal, Your Honour, and is reflected in
24 our jurisprudence as well. And if the Court would refer to Prosecution
25 versus Delalic, paragraph 909, it is -- they quote this very well-known
1 principle. "It is a well-recognised legal principle that a wrongdoer must
2 take the victim as he finds him. Thus if a perpetrator by his acts
3 shortened the life of his victim it is legally relevant that the victim
4 may have died shortly thereafter from another cause." To establish
5 criminal liability in situations where there are pre-existing physical
6 conditions which would cause the victim's death, therefore, it is only
7 necessary to establish that the accused's conduct contributed to the death
8 of the victim. Therefore, the fact, Your Honour, that the conditions in
9 Srebrenica were appalling and that the victims may have been suffering
10 from other complaints such as lice simply does not nullify the action on
11 the part of the subordinates of Naser Oric. And those subordinates being
12 the guards, soldiers and others, the guards being those of the military
14 Your Honour, I believe we have covered significantly and
15 sufficiently the cruel treatment that was meted out to the prisoners, and
16 we stand by the evidence that was presented with respect to Stanko
17 Mitrovic, called Cane, and that evidence was presented by Ilija Ivanovic,
18 transcript 4068 to 4069, who testified that Stanko called Cane was beaten
19 by the soldiers and that he was disabled and he was beaten specifically on
20 his hands and legs. Those limbs. They would target those limbs,
21 Your Honour.
22 We also heard about the situation where the beard of confidential
23 witness 007 was set on fire. You heard Mr. Ivanovic testify to that and
24 you heard the witness himself who suffered this horrific act testify to it
25 as well. We believe that the evidence is sufficient with respect to the
1 cruel treatment and just briefly with respect to Milo -- Mile Trivunovic
2 [phoen] whose granddaughter testified that she was present in the prison,
3 had heard the screams of the prisoners and her grandfather moaning, and
4 that she had seen her grandfather, he was black and blue, that he died
5 shortly after being released and exchanged from the Srebrenica prison.
6 Your Honour, we believe that this evidence is sufficient to sustain the
7 charge of cruel treatment on behalf of those prisoners.
8 Your Honour, with respect to the signs of beating which we believe
9 leads a little bit over into the identification issue, the prisoners were
10 very clear that they had visible signs of bleeding, of being beaten, blood
11 on the floor, swollen eyes, et cetera, and that can be confirmed through
12 the testimony of confidential witness 007. You also heard from Mitrovic,
13 and he said when he was in the hall way he observed the prisoners and they
14 bore the signs of having been beaten. The Defence challenged the witness
15 Branimir Mitrovic, challenged his recollection of the fact on the basis
16 that he was seven years old at the time. Your Honour, I submit to you
17 that indeed a seven year old remembering having played with a specific
18 playmate at the age of seven or what kind of game he played at seven may
19 not be something he can recollect 12 years later. But a seven year old,
20 Your Honour, who observed prisoners being beaten on a daily basis during
21 the time that he was in Srebrenica is not something a seven year old or
22 anyone else is likely to forget, Your Honour. And in fact, when his
23 recollection was challenged by the Defence, he was adamant that he
24 remembered the circumstances. And he remembered them, Your Honour, the
25 Prosecution submits, because they were unique and people do remember
1 incidents because of that, because it's outside of their every day normal
2 experience. And that is true, Your Honour, with respect to Branimir
4 The lighting conditions, you heard confidential Witness 007 and
5 other witnesses talked about the fact that they were beaten in a cell and,
6 yes, it was dark but they also testified that there was light used by
7 lighting bits -- by the attackers using lighting bits of paper that
8 created light and you heard this from more than one witness, Your Honour,
9 and I submit to you that this is not a fact that would have been
11 Your Honour, Naser Oric, the Prosecution has alleged, visited the
12 prison, as did his deputy, Zulfo Tursunovic. The Prosecution submits that
13 the evidence of Ilija Ivanovic is credible and this is evidence,
14 Your Honour, that was challenged by the Defence repeatedly regarding the
15 witness's identification of Naser Oric as well as the circumstances under
16 which he was beaten, followed by Naser Oric -- the ability -- followed by
17 the exact circumstances, Your Honour, of who was in the room when he was
18 taken to the reception area. You may recall that Mr. Ivanovic said he had
19 been beaten, he was taken to this room, and you recall he -- recalled that
20 he testified that he was familiar with Ahmo Tihic, whom he recognised. He
21 also testified that he was familiar with Zulfo Tursunovic, and he said
22 Mandza was also present in the room. And he said that there was a man
23 that he later recognised as Naser Oric, and I would at this point, since
24 there has been so much discussion on this issue, I would like to refer to
25 the transcript where Mr. Ilija Ivanovic testified to these events, and
1 that is transcript 4050, line 20.
2 Question: "Did there come a point in time where you were removed
3 from the cell and taken to another room in this building to be
5 Answer: "Yes, I remember once, can't say whether it was more than
6 that. They took me to the reception room where they had the soldiers who
7 watched us. I was taken out of the room and taken to the reception room.
8 I recognised Ismet. He was a person I noticed, also Tihic, Ahmo Tihic,
9 and Ismet he referred to is Ismet Odic. I found out who the others were
10 later on and their names. There were five persons there for sure, up to
11 seven. I'm not sure if this was recorded or not but it's not important.
12 I saw one man, a bearded, dark, a bearded man, dark. I can't say that I
13 knew Naser Oric but when we returned to the cell after this brief
14 interrogation the soldiers told me, did you see our Dela, Naser? Some of
15 them said Naser, some of them said, the boss. I didn't know the man
16 though. I can't say it was that man."
17 Later on, Your Honour, you may recall Mr. Ivanovic testified about
18 having seen, having recognised this person from the reception room, from
19 that event. Transcript 4055, it was a result of -- I'll rephrase. Your
20 Honour put this question to the witness, line 11:
21 "So if someone presented to you with a person and told you this
22 is Naser Oric, you wouldn't have been able to confirm that because you did
23 not know the man?"
24 The witness responded, Mr. Ilija Ivanovic responded: "I'm not
25 even saying that I did see him on TV several times later but I can't say
1 something that is just not true. I didn't know him at the time. Because
2 I had known him he would have been very easy for me to identify then."
3 Judge Agius stated: "So and who did you see later on TV several
5 The witness responded: "No, what I'm saying is that although I
6 saw him on TV several times I do not want to add something that I didn't
7 actually know at the time. That's what I'm trying to say."
8 Judge Agius: "But are you telling us that on TV later on you saw
9 Naser Oric several times?"
10 The witness answered: "Yes, in the newspapers and on TV."
11 Your Honour, the Defence may seek to twist and turn that bit of
12 evidence and testimony and on cross-examine the issue was revisited. But
13 the witness was clear. He was honest. He didn't know Naser Oric the day
14 he saw him in the reception room. He was clear. He saw him, he
15 recognised him later on from television and the newspaper.
16 The others, Your Honour, such as Zulfo Tursunovic, visited the
17 prison and the witness recalled that as well. Mandic was someone who was
18 present at the exchange. Ratko Nikolic testified that he recognised Naser
19 Oric and just bringing you back a bit to the testimony of Ratko Nikolic
20 who said that on his way to Srebrenica, sitting in the van was Zulfo
21 Tursunovic who he later saw on a daily basis visiting the prison. And he
22 testified that the person in the van he believed to be Naser Oric because
23 of how they were treating him and how they referred to him. And you can
24 refer to Prosecution's response paragraph 90 on that issue. He also
25 testified that he later recognised there person from the newspaper.
1 Stana Stamenic testified Naser Oric came to the cell and actually
2 spoke to her and introduced himself, and you may find that reference to
3 this conversation that he had with her in transcript 6618 to 620, and 6672
4 to 6673. Naser Oric told her he was the commander. Zulfo also visited
5 the prison, she testified, and introduced himself and asked whether they
6 had been mistreated. Milena Mitrovic, I'm sure we all recall that
7 testimony because Ms. Mitrovic seemed to be confused about the last name
8 of the individual and she summed up that she recalled the last name to be
9 Kolic. The Prosecution submits that in fact that last name was Naser Oric
10 that was told to her and her memory failed her on that regard and she said
11 Kolic. But that's what she remembered and she was honest about that.
12 When the Defence sought to cross-examine her on where she saw this
13 individual, after a series of questions, it was clear that she saw him in
14 the prison and not in the police station as the Defence may have -- or as
15 the Defence was trying to elicit from her, the Prosecution believes.
16 Your Honour, the Prosecution -- Naser Oric had knowledge of
17 prisoners and we believe that that has been briefed in our closing brief
18 as well as our reply brief. But if we could just play a bit of his
19 interview regarding the matter of prisoners and Zulfo Tursunovic.
20 [Videotape played]
21 JUDGE AGIUS: For the record -- we are playing from 328 or 329,
22 Ms. --
23 MS. RICHARDSON: We are playing from 328, we're at transcript 13,
24 pages 7 to 8.
25 JUDGE AGIUS: The video starts at 2 hours 33 minutes 06.5 seconds.
1 [Videotape played]
2 I have just one thing. Yesterday you asked me if there was
3 military court. It's [indiscernible] after Zalazje. I note the Court was
4 formed. I found this way -- I found this out yesterday in the same way
5 through contacting my fighters after the demonstration outside. I'm not a
6 computer. I can't remember all of this stuff. They told me -- they told
7 me and I remembered later on that Zulfo Tursunovic was at the military
8 court as some kind of military judge. The reason that we appointed him is
9 that he was a person who had spent a lot of time in prison and who knows
10 law better than some -- some lawyers with degrees. Of course, he doesn't
11 know all the various rules and regulations but he knows how to behave like
12 a [indiscernible]. He knows how to balance or weigh a situation because
13 before the war, he had killed two [indiscernible] with a knife. This was
14 some kind of bar fight where they attacked him and then he had no choice
15 he -- he was -- he was sentenced to 20 years' imprisonment and he served
16 14 and a half and then he was lucky because the war started. I
17 [indiscernible] after him there is -- another member of the military court
18 was Ahmo Tihic. That is the commander of the Biljeg TO. The third was
19 Atif Krdjic that is Atif, A-t-i-f, Krdjic, K-r-d-j-i-c, and the third was
20 Hamed Salihovic, that's Hamed, H-a-m-e-d. These are the ones that I
21 succeeded in finding out who they was. Maybe there were some others but
22 these are the ones that I know about. Thank you. Atif Krdjic, excuse me,
23 was an active policeman in Srebrenica. Hamed Salihovic was the head of
24 the police in Srebrenica and was also a military security officer."
25 JUDGE AGIUS: All right. For the record, the tape is stopped at 2
1 hours 36 minutes 49.6 seconds.
2 MS. RICHARDSON: Thank you, Your Honour.
3 I believe that information from Naser Oric himself corroborates
4 what witnesses have testified to, and that is Zulfo Tursunovic visited the
5 prison, and certainly does explain his presence there, as he was -- Zulfo
6 Tursunovic had been a military -- had been a military judge. It does make
7 one pause for the reason and sort of seem to be amusing that he was
8 appointed because he had been in prison but nonetheless, this does in
9 fact, the Prosecution submit, corroborates the fact that Zulfo Tursunovic
10 was in the prison as well as corroborating other facts such as Ahmo Tihic
11 being there as well, and Hamed Salihovic who he says was the military
12 security officer.
13 Your Honour, I would suggest to Your Honours that you take a look
14 at the Prosecution's brief, as well as the reply, because we do detail
15 more instances where Naser Oric talks about Hamed Salihovic as well as
16 Zulfo Tursunovic, and their relationship to the prisoners.
17 JUDGE AGIUS: I want to put your mind at rest, Ms. Richardson, we
18 already have, at least twice.
19 MS. RICHARDSON: I do appreciate that, Your Honour. Your Honour,
20 the identification issue, as posited by the Defence, as briefed in their
21 closing brief is one that I would like to address the Trial Chamber at
22 this point. The Prosecution is of -- the Prosecution submits that the
23 evidence regarding the identification or recall, as we would refer to it,
24 as the recognition of Naser Oric, was sufficient for the Court to find
25 beyond a reasonable doubt that he was in the prison, that he did observe
1 the physical appearance of the prisoners, and as such he was put on actual
2 notice and inquiry notice and had a duty to prevent and punish.
3 It's the Prosecution's position that the Defence has replied --
4 erroneously sought support in the Tribunal jurisprudence as well as
5 Turnbull, which I will address in a moment. The Defence states that the
6 law on identification evidence does not allow a finding that Oric was
7 identified at the crime site, and we submit that that is incorrect. It's
8 The Prosecution's position that the jurisprudence referred to by the
9 Defence does not support this claim at all, in particular the evidence in
10 Oric -- in the case of Naser Oric is very different in nature from the
11 case cited by the Defence. And we submit that it's altogether much safer,
12 facts, and facts and circumstances in this case than in the cases referred
13 to by the Defence.
14 In both the detention facility, that being the prison, as well as
15 the prison, Your Honours, prisoners confirm either that they knew Naser
16 Oric before in the case of Mrs. Sarac who told Mr. Radic, and in the case
17 in the second scenario where you have this Stana informing Milena Mitrovic
18 that that's Naser Oric and we have Naser Oric introducing himself to Stana
19 Stamenic. We have Ilija Ivanovic recognising Naser Oric later on. We
20 submit that these facts are different in nature from that raised by the
22 Distinguishing the jurisprudence referred to by the Defence, the
23 Prosecution will draw the Court's attention to Kupreskic where in
24 Kupreskic the eyewitness identification was an issue with regard to two
25 distinct incidents. In both incidents the conviction hinged upon the
1 testimony of a single eyewitness. In one case the Appeals Chamber
2 acquitted and in the second it upheld the conviction for both Kupreskic
3 incidents the evidence was significantly weaker than in this case,
4 Your Honour, the Prosecution submits. With regard to the first of these
5 incidents, the only evidence placing the Kupreskic brothers at the crime
6 scene was the testimony of Witness H. Witness H, whose testimony was
7 unsafe for a large number of reasons including prior inconsistent
8 testimony -- statements of the witness and contradictions between the
9 statement of the witness and another eyewitness. The other eyewitness
10 raised the distinct possibility that witness H identification of her
11 neighbours in the attack had been a gradual development in months
12 following the April 1993 atrocity.
13 Now, with regard to the second incident in Kupreskic, this was the
14 only incident placing Josipovic at the precise crime site and the
15 witness's testimony was found sufficient on trial and on appeal,
16 Your Honour. This finding was made despite discrepancies between -- in
17 the witness's testimony itself. She testified that she had -- she had
18 testified to have seen together with Josipovic two others and who were
19 found to have been elsewhere at the time of the incident. Apart from this
20 testimony, the only other factor -- the only other factor the appeals
21 found in favour of conviction was the testimony was -- found that this
22 testimony was generally corroborated by a witness who had seen Jusipovic
23 attacking in the vicinity but not on the crime scene. The evidentiary
24 situation, Your Honour, in Oric is not comparable to the situation in
25 Kupreskic. In Kupreskic it was only one eyewitness who existed for each
1 incident. By contrast Naser Oric had been identified in both detention
2 facilities by a number of witnesses, many of whom had an opportunity, and
3 we submit that this was not a fleeting glance as suggested but an
4 opportunity, a fair amount of time, to recognise him later on. And we
5 have also talked about the fact that he was known to a particular witness,
6 Mr. Sarac.
7 The identification in the present case again was not based on
8 fleeting glances, obstructing views or viewing in the dark because as you
9 recall, Mr. Ivanovic testified that he saw Naser Oric in the reception
10 room area. Stanic Ivanovic said he came into the cell and she had a good
11 view of him. And Your Honour it is based on mutually corroborated
12 evidence from all of the witnesses who had repeated opportunities to
13 observe Naser Oric that the Prosecution submits was sufficient for a
14 finding that Naser Oric was in the prison and reliable.
15 In sum, Your Honour, Kupreskic cannot possibly support the
16 Defence's position that Naser Oric was identified as unsafe. In other
17 words, Your Honour, this is not the same situation. In this case the
18 finding of the Court of the Trial Chamber would not be unsafe. In
19 Kunarac, the decision in Kunarac referred to by the Defence, explicitly
20 clarifies that all comments to which the Defence refers are made for the
21 case that the evidence end quote the evidence of the witness is the only
22 evidence given in relation to that fact --
23 Your Honour, the Defence also erroneously --
24 JUDGE AGIUS: Ms. Richardson, may I kindly ask you to slow down?
25 Thank you.
1 MS. RICHARDSON: Yes, Your Honour, I do apologise. The Defence
2 uses the case of Turnbull, and Your Honours were provided copies of this
3 decision, erroneously again, that they -- that the Defence has --
4 JUDGE AGIUS: Sorry to interrupt.
5 MS. RICHARDSON: No problem, Your Honour. The Defence has relied
6 on Turnbull to support its position that the identification is unreliable
7 and, again, Your Honour, the same holds true with regards to the
8 distinction in the cases. The decision of the Court of appeals of England
9 and Wales in Turnbull, the Prosecution submits, if anything it supports
10 the Prosecution's position rather than the Defence. The most relevant
11 finding in Turnbull was that if apart from the poor identification
12 evidence there is other evidence which goes to support the correctness of
13 the identification, a conviction may be entered. Turnbull decided three
14 appeals based on identification. It upheld one conviction and reversed
15 two. Turnbull's conviction was upheld despite the only identification
16 witness only briefly saw Turnbull's face. The verdict could not be said
17 to be unsafe because the identification witness already knew Turnbull from
18 previous times. And that there was some corroboration for this
20 The same holds true, Your Honour, in this case, that the Stana
21 pointed out Naser Oric to the Milena Mitrovic and Mr. Sarac testified that
22 he knew Mr. Oric from before and he conveyed this information to
23 Mr. Radic. The other two cases referred to in the Turnbull
24 identification -- the other two identifications which were found to be
25 unreliable because of very poor identification evidence, Your Honour. In
1 one case, both witnesses did not know the assailant before the attack.
2 The attack itself during which the assailant could be observed was over a
3 few moments. The crime scene was a dark alley. A different witness
4 identified a very different looking person and the description of the
5 assailants originally given by the witness were contradictory. In the
6 other case the persons were seen by the witness wore a Balaclava. One
7 witness only saw him from the rear and the other one had given before the
8 identification parade a description which in no way fit the description of
9 the appellant or the accused. In both cases -- there was no further
10 supporting evidence.
11 Your Honour, again, the evidence in this present case is
12 different. Consistent, mutually corroborative evidence about Naser Oric
13 being present in the detention facilities even introducing himself by name
14 has been provided in both prison scenarios and provided a number of
15 witnesses had an opportunity, more than one, to see and observe him.
16 The Defence -- the Prosecution would like to just make one small
17 point with regards to the Defence's reliance on the use of the Devnis
18 [phoen] report. The Defence claims that the Devnis report defines
19 recognition evidence as seeing someone the witness already knows.
20 This is wrong, Your Honour, the Prosecution submits. The report
21 in paragraph 4.1 defines recognition as depending upon the human ability
22 to memorise a face, if the memory is clear enough, it will enable a
23 positive identification to be made." Thus the report's distinction
24 between recognition and resemblance evidence simply distinguishes the
25 quality -- simply distinguishes the quality of the witness's memory.
1 Your Honour, the Prosecution would also highlight additional
2 jurisprudence to the Court regarding identification that has already been
3 established in our jurisprudence. We invite the Court to visit the
4 Florenzija [phoen] Appeals Chamber judgement and there the Trial Chamber
5 upheld the trial -- the -- here the Appeals Chamber upheld the Trial
6 Chamber's treatment of witness identification evidence. There, the
7 witness stated that she recognised the accused from television. She also
8 identified the accused's voice as belonging to a person she encountered at
9 two different locations. This evidence was in fact the only evidence that
10 placed the accused at one of the locations. However, it was not the only
11 evidence from this witness, nor from other witnesses, that identify the
12 accused. The witness also testified that other people addressed the
13 accused using his name in her presence. The same is true. Mr. Ilija
14 Ivanovic, as I stated prior, came back from the receptionist room and the
15 guards were asking him, "Did you see Naser?" "Did you see our boss?"
16 Excuse me. "Did you see our Naser and boss?"
17 The witness also testified that her encounter with the accused
18 was -- excuse me I'll restate that. Her identification of the person she
19 saw on television, she recall, was -- her identification was of the person
20 she saw on television, Your Honour, not of the person she physically
21 encountered. The Trial Chamber, however, accepted the witness's
22 recognition but the person she saw on television was indeed the person she
23 physically encountered, and she noted that he had put on weight. The
24 Appeals Chamber held that this treatment of the witness's evidence,
25 together with evidence of other identification evidence, made it
1 reasonable for the Trial Chamber to have been satisfied that the accused
2 had been identified.
3 JUDGE AGIUS: What's the date of the Furundzija Appeals Chamber
4 decision you're referring to, please?
5 MS. RICHARDSON: Your Honour, I do apologise.
6 JUDGE AGIUS: Is it the final Appeals Chamber decision in that
8 MS. RICHARDSON: Your Honour, it's the 21st July 2000.
9 JUDGE AGIUS: Thank you.
10 MS. RICHARDSON: Your Honour, I would just close on this issue
11 with regards to the findings of the Limaj Trial Chamber, and that is
12 paragraph 20, and I would quote: "Even though each visual identification
13 and each other relevant piece of evidence viewed in isolation may not be
14 sufficient to satisfy the obligation of -- on the Prosecution it is the
15 cumulative effect of the evidence, i.e. the totality of the evidence
16 bearing on the identification of the accused which must be weighed to
17 determine whether the Prosecution has proved beyond a reasonable doubt
18 that each accused is a perpetrator, as alleged.
19 Your Honour, the Prosecution submits that the Trial Chamber could
20 consider the identification evidence in this case cumulatively, together
21 with the evidence of the statements and all of the evidence that we've
22 presented with respect to witnesses who recognised him, either knowing him
23 before or recognising him later on at -- on television.
24 JUDGE AGIUS: Again, date of this Limaj decision, please?
25 MS. RICHARDSON: Yes, Your Honour. Your Honour, it's the Limaj
1 trial judgement and it's a very recent judgement.
2 JUDGE AGIUS: I know it's recent.
3 MS. RICHARDSON: We will get back to you with the date and we do
4 apologise for not having it beforehand.
5 Your Honour, that would essentially conclude my submission with
6 respect to the identification issue. Recognition, identification, is, as
7 knowledged by the Defence, the best form of visual identification, and
8 recognition evidence has indeed been the basis of the identification of
9 Naser Oric by the Prosecution witnesses, Your Honour.
10 I would now like to continue on with my submission regarding Naser
11 Oric's knowledge of prisoners. You may recall that Mr. Glikic testified
12 that Naser Oric was at one of the exchanges and the exchange where
13 prisoners were exchanged and the Prosecution submit that the --
14 particularly the men were visibly beaten. You may also recall the
15 evidence where Naser Oric had taken out Sarac to negotiate with the Serb
16 authorities regarding the exchange of Serb prisoners as Ms. Sellers
17 referred to earlier. And I would just like to remind the Trial Chamber of
18 the evidence of Slavoljub Filipovic and Mr. Okanovic who both testified
19 that they -- specifically with regard to Mr. Filipovic who said that he
20 recognised the voice of Naser Oric because he knew him from before and he
21 spoke to him over the radio. And the Prosecution has extensively dealt
22 with this in their Prosecution -- in the Prosecution's final brief and I
23 would like to draw the Court's attention to Mr. Okanovic who recalls the
24 code name of Mr. Naser Oric being Gazda and that he knew that because of
25 what the other -- how he was -- how Gazda was treated when he was on the
1 radio itself.
2 And this is -- that this Gazda was Naser Oric based on what the
3 other operators had said. And this, Your Honour, we believe -- we
4 believe, is additional evidence of Naser Oric's knowledge of prisoners, as
5 he talked about, discussed the wife of Filipovic and the capture of the
7 Your Honour, I would like to move next to the exchange involving
8 who the Prosecution submits was confidential witness 007 and there has
9 been a lot from both sides on this issue regarding who was present at the
10 exchange and how it actually proceeded. The Prosecution stands by its
11 position in the Prosecution's closing brief, and also in the Prosecution's
12 reply brief.
13 Now, the Defence has indicated that Mr. Tucker, Colonel Tucker,
14 should not be relied upon as having been present when Naser Oric brought
15 out this prisoner and released him to the UNPROFOR individuals, but
16 Colonel Tucker, and I believe that -- we sufficiently addressed this in
17 the Prosecution's brief, remember very well that incident that he was,
18 General Morillon was approached by Naser Oric who came along in a black
19 Mercedes and had taken them to a place where C-007, who we believe any
20 way, is C-007, Colonel Tucker didn't know who this person was but brought
21 out this Serb prisoner to them.
22 Now, the Prosecution concedes that Colonel Tucker may not have
23 been correct in some aspects of that testimony, but the Prosecution stands
24 by Colonel Tucker's testimony about what was important at the time, and
25 what we believe is the most relevant portion of that evidence is that
1 Naser Oric was the one who brought the prisoner out. Now, Colonel Tucker
2 mentioned, testified - excuse me - that there may have been some bandages
3 on the individual and as the videotape was shown, taken by Tony Birtley of
4 the exchange itself, it was evident at least from the portion of the video
5 we saw, that the prisoner did not have bandages on him, at least from what
6 we were able to see.
7 But I would take Your Honour to the portion of the testimony with
8 respect to Colonel Tucker, and I think from reading his testimony it will
9 be clear, and I'm not going to read it out because I think we are probably
10 going to start running short on time. But Colonel Tucker did mention --
11 said he -- "I think" - I'm quoting from 6178 - "I think he had some
12 bandages on his face. It was difficult to tell because his face was so
13 dark and he had" -- "his face was so dark and he had obviously not shaved,
14 but I think he had bandages as well."
15 To Judge Brydensholt's question: "On the face, on the head? Do
16 you recall anything about this? Where it was?"
17 Colonel Tucker answered, "I can't remember where on his body the
18 bandages were. What I do remember is that for some reason we had soldiers
19 pull up his shirt or whatever, to look at his stomach because there was
20 some -- I can't remember the reason why we looked at his stomach I don't
21 recall the reason why." The Defence -- thank you. And, Your Honour, just
22 would like to give the Court the information Your Honours sought before
23 about the Limaj judgement, and that is November 30th 2005.
24 Your Honour, Colonel Tucker may have been as well mistaken about
25 who was present and we saw Colonel Dudley on the tape. Unfortunately the
1 tape was not shown to Colonel Tucker. It may have refreshed his memory
2 somewhat about who was present but he said -- Colonel Dudley was there,
3 but at first he certainly intimated that he wasn't sure about all of the
4 individuals present and upon being questioned again and again, he said,
5 well, he's pretty sure that Dudley was present -- was not present, excuse
7 In any event, Your Honour, the Prosecution would submit that
8 Colonel Tucker had significant more information about this prisoner than
9 Dudley or Birtley. In fact, Birtley did not take the whole incident, as
10 the Defence would have you believe, and I would refer to transcript 15124
11 and this is on questioning on examination-in-chief to Mr. Birtley.
12 Now finally a moving question -- now finally I'm moving on to two
13 more topics, do you remember being present when a Serb prisoner or
14 detainee was released?
15 The answer: "Yes, I do."
16 "And did you film at least part of that scene?"
17 Answer: "Yes, I did."
18 I would emphasise, Your Honour, the question was, "did you film at
19 least part of the scene?"
20 The answer was: "Yes, I did."
21 Next question: "And do you remember how you came to be at the
22 scene, the handover?"
23 "I remember exactly. There was so much going -- I don't --
24 excuse me, I can't remember exactly. There was so much going on. I think
25 I came across it by accident or I was told. I can't say with any degree
1 of certainty."
2 And that was Tony Birtley's testimony about the taping of the
3 events. The Prosecution would submit to you, Your Honour, that in fact
4 because Tony Birtley had only sudden appeared accidently that he did not
5 see Naser Oric and that Naser Oric may very well have left by the time
6 Tony Birtley began filming.
7 And with respect to Colonel Dudley, who was not actively involved
8 in the exchange, nor in any type of communication with Naser Oric, said
9 Naser Oric was not present. Even though he's never met Naser Oric, he
10 seemed to have wanted to supply the Trial Chamber with what the
11 Prosecution submits is a little bit more information that -- than he had
12 actual knowledge of, and he himself said that he was not part of the
13 initial exchange, he was standing with the UNPROFOR soldiers and they said
14 they needed help with a stretcher. Your Honour, again we submit that
15 Colonel Dudley does not have the knowledge that he was -- that Tucker had,
16 of the events, and we submit that it's quite possible that Dudley also
17 appeared after the prisoner -- after Naser Oric had possibly left.
18 Now, I would, in addition to what Colonel Tucker said about the
19 exchange of the prisoner -- I would like to draw your attention to the
20 portion of his testimony where he talked about the fact that Naser Oric
21 knew about the additional -- that there were two additional prisoners and
22 he referred to his diary, and I would point to -- lead the court to trial
23 transcript 5929, after just having -- reading out information on his
24 diary, Colonel Tucker said "We released" -- he's quoting, "We released a
25 wounded Serb prisoner. We know of two more Serbs held by Bosnian forces
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 in Srebrenica who's commanding -- whose commander is trying to get
2 released." And he's reading a portion of his diary about that information
3 that was placed in it.
4 My answer to the question of what else was in his diary, he
5 said, "My recollection is that Colonel Oric said that he had two more
6 prisoners. General Morillon was pressing him, 'How many prisoners do you
7 have? Don't hold on to them. Release them.' Then he said that he had
8 two more but that they were common criminals and nothing to do with
10 Question: "And when had that conversation taken place to the best
11 of your recollection?"
12 "That" -- answer: "That morning."
13 Question: "So when the prisoner was brought out?"
14 Answer: "Bear in mind that it was General Morillon who told me
15 this. I did not hear this myself. It was General Morillon who told me
16 that he had been told that this morning."
17 But, Your Honour, clearly this was significant enough for
18 Colonel Tucker to put it in -- for it to be documented and it is
19 corroborative of confidential witness 007 who said: "He left two
20 prisoners back, who remained there, and those two prisoners was Jakov
21 Dokic and a man from Zenica."
22 Your Honour, we believe that Colonel Tucker's diary supports and
23 corroborates that there were two prisoners left, and Naser Oric knew about
25 I am drawing close to the end of my submission on this issue.
1 Just a moment, Your Honour.
2 [Prosecution counsel confer]
3 MS. RICHARDSON: Your Honour, I'm going to wrap up this segment of
4 my submission.
5 JUDGE AGIUS: You're trying to.
6 MS. RICHARDSON: Yes, Your Honour. I'm quite consistent in my
7 lengthy submissions over the time but I've appeared before Your Honour.
8 I'm trying to wrap it up.
9 The Prosecution submits that Naser Oric -- that the Prosecution --
10 that Naser Oric failed to take reasonable -- failed to take the necessary
11 and reasonable measures to prevent the commission of the crime or punish
12 the perpetrators, and that he had superior authority under 7(3). And
13 you've heard from my colleague, Ms. Sellers, about that
14 superior-subordinate relationship. The Prosecution submits that Naser
15 Oric knew or had reason to know that a crime had been or was about to be
16 committed and that he failed to take the necessary and reasonable measures
17 to prevent those crimes from taking place, and that's with respect to the
18 murders in the prison and the cruel treatment.
19 In accordance with the Celebici judgement, trial judgement, that
20 is, which states that the superior must have had information that would
21 provide -- had actual knowledge or inquiry notice of the offence committed
22 by subordinates. And this is not new jurisprudence, Your Honour, it's
23 been said many times of 7(3) liability. And this knowledge, Your Honour,
24 the requirement of knowledge can be proven direct or circumstantially and
25 I don't need to seem to lecture Your Honours on the law, but I would only
1 add that the actual knowledge we believe was proved beyond a reasonable
2 doubt that Naser Oric in fact had direct knowledge and knew that the
3 prisoners had -- were subjected to cruel treatment and had been beaten and
4 failed to prevent further beatings as well as the deaths of the prisoners.
5 We believe it was proven directly, based on the testimony of Ivanovic who
6 said that the beatings continued after Naser Oric saw his condition. We
7 believe that circumstantially, based on all of the evidence, I should say
8 we believe that this is true of -- with respect to the actual knowledge
9 because of the direct evidence of Mr. Sarac who said that Naser Oric took
10 him out to engage in this radio discussion about exchanges. We believe
11 that Naser Oric was in the prison and observed the condition of the
12 prisoners in both scenarios and failed to take any action to prevent it.
13 And certainly, Your Honour, the evidence at a minimum proves
14 circumstantially that he had actual knowledge of the conditions in both
15 scenarios. We would also conclude that he had inquiry notice as well, and
16 that his deputy Zulfo Tursunovic was in the prison, and that he had reason
17 to know or should have been put on notice that there was a need for
18 further investigation based on what happened in the first prison scenario,
19 Your Honour, and based on what he himself observed in the prison.
20 Your Honour, I believe that the evidence proved beyond a
21 reasonable doubt that Naser Oric had this -- had actual and inquiry
22 notice, direct and circumstantially. We proved beyond a reasonable doubt
23 that he was in the prison and he failed to prevent or punish.
24 JUDGE AGIUS: Let's skip -- go straight to what you were supposed
25 to address in this part, namely the dispute that exists between you and
1 the Defence, Prosecution and the Defence, as to whether you have
2 sufficiently proven beyond a reasonable doubt that the accused failed to
3 take adequate measures according to the law and jurisprudence surrounding
4 Article 7(3) because that's what we are interested in. The rest is
6 MS. RICHARDSON: Yes, Your Honour, I will. With that in mind,
7 Your Honour, I will move into communication which we believe will
8 sufficiently address the fact that Naser Oric failed to take reasonable
9 measures to prevent or to punish. It's -- we believe we will sufficiently
10 address that. And if Your Honour is asking about what specifically he did
11 with respect to the prison then I can answer that at this time.
12 JUDGE AGIUS: No, no. It's just asking you whether you have got
13 anything else to add, to complement your submissions on this aspect.
14 MS. RICHARDSON: Well, Your Honour, with respect to the prisons, I
15 can say that -- that there were numerous means available to Naser Oric
16 with respect to the prison, as well as to the wanton destruction, and via
17 his subordinate, Zulfo Tursunovic who was in the prison, whom he knew had
18 the responsibility for the prisoners, Naser Oric could have taken the
19 measure of eliciting reports from Zulfo Tursunovic inquiring about the
20 conditions of the prison, having -- having information on what had
21 happened in the first prison scenario, despite the fact that Mirzet
22 Halilovic was no longer there, we submit the Prosecution submits,
23 Your Honour, that this is modus operandi of similar illegal acts which
24 goes to circumstantial evidence as well. One factor to consider in terms
25 of the circumstantial evidence. We believe that Hamed Salihovic, a person
1 who had interrogated the prisoners and who submitted reports on the
2 prisoners, Naser Oric could have inquired of Hamed Salihovic the condition
3 that the prisoners -- any concerns of the prisoners, whether they had been
4 beaten or how they were treated and we believe that that is a simple
5 measure that Naser Oric could have engaged in and he failed to do so.
6 JUDGE AGIUS: You haven't addressed to my knowledge at least how
7 you consider the accused's responsibility under this particular section
8 throughout the entire period, because obviously his situation changed as
9 the circumstances changed. The events are treated under the indictment
10 with reference to a particular period, but the alleged 7(3) responsibility
11 extends beyond that period up to, if I remember well, 1995, August of
12 1995, or there is a specific date in the indictment itself.
13 So is your position that his responsibility remained the same or
14 his possibility or -- of punishing or whatever, what are your submissions
15 in that regard?
16 MS. RICHARDSON: Your Honour, if I could have a moment. I just
17 would like to speak with my --
18 [Prosecution counsel confer]
19 MS. RICHARDSON: Your Honour, I believe Ms. Sellers will address
20 Your Honour's question.
21 JUDGE AGIUS: I thank you so much.
22 MS. SELLERS: Your Honour we are about to come to that part of our
23 presentation because --
24 JUDGE AGIUS: I'm sorry, I anticipated.
25 MS. SELLERS: I'm happy that Your Honour is in sync with us or
1 maybe we are in sync with you. What we would like to do is now to address
2 Naser Oric's failure to prevent or punish during the entire time period.
3 First Ms. Richardson will go over for the go over for the next 15 minutes
4 the aspects of communication.
5 JUDGE AGIUS: You hope.
6 MS. SELLERS: For the next 15 minutes, the aspects of
7 communication that lend themselves to preventing and to punishing and then
8 I will conclude that segment, I guess in our next segment for 15 minutes
9 which shows that there is a time span larger than the actual commission of
10 crimes to which Naser Oric is held, and after that, Your Honours, then
11 we'll -- briefly into our two last areas.
12 JUDGE AGIUS: All right. So we have another 15 minutes to go,
13 after which we'll have a break. So Ms. Richardson, please conclude your
14 part of the closing arguments within the next 15 minutes.
15 MS. RICHARDSON: Yes, Your Honour, I will do so.
16 Your Honour, the Prosecution relies on its submissions in the
17 Prosecution reply brief. That brief, Your Honour, discusses at length the
18 communication systems that were available to Naser Oric in Srebrenica in
19 1992, 1993 and thereafter. It's our position, Your Honour, that Naser
20 Oric possessed the reasonable means of communication to exercise effective
21 control over his subordinates and, of course, it's our position that it
22 includes the both prison scenarios as well as the wanton destruction. And
23 it's the Prosecution's position that these reasonable means, if he chose
24 to use them, would have provided him with actual knowledge or inquiry
25 notice of the crimes committed or about to be committed.
1 Your Honour, these were -- the Prosecution submits -- very
2 reasonable measures and necessary that were available to him, despite the
3 Defence's arguments that there were no means of communication or that
4 communication -- Srebrenica was so isolated that they were not able to
5 communicate either within the enclave among the fighters or the soldiers
6 or outside. We know from the testimony of numerous witnesses, and most
7 importantly, Mr. Becirevic, who talked extensively for over a period of
8 time before Your Honours about the types of communication that was
9 available to Srebrenica. Your Honour, the accused himself talked about a
10 system of communication that, once Your Honours go through the transcript
11 of his interview, we believe will agree that this system of couriers,
12 Your Honour, were such that Naser Oric was able to communicate with his
13 subordinates in the field, and I would draw Your Honours' attention to
14 Prosecution's Exhibit 328, transcript 5, page 3 to 8. Naser Oric himself
15 describes what I -- what the Prosecution submits is a reliable and capable
16 courier system that they, the Srebrenica armed forces and the subregion
17 established and I would invite Your Honour to review that portion of his
18 testimony. And I would also invite you to review the portion of his
19 testimony where he detailed the type --
20 JUDGE AGIUS: It's not testimony.
21 MS. RICHARDSON: Sorry, excuse me. Interview, Your Honour. I do
22 apologise. And I invite Your Honours to review the portion of his
23 interview which he himself talks about the type of communication that was
24 available to him in Srebrenica. And that is Prosecution Exhibit 329,
25 transcript 21, page 8 to 9. And Naser Oric informs the investigators of a
1 courier system, Motorolas, radios being used, the use of ham radios, et
2 cetera, and we believe that this provides sufficient evidence that he
3 had -- he was well aware of the communication systems that were available.
4 Your Honour, the Prosecution stands by the exhibits that were
5 discussed in their -- in their reply brief and these issues and just
6 briefly the use of ham radios, Motorolas, and RUPs, and we would ask
7 the -- we would request that the Trial Chamber take a close look at
8 Prosecution Exhibit P84 which talks about the planning and assigns
9 communication equipment to various fighters, including Naser Oric himself.
10 There is one portion of the minutes which states that it was critical that
11 Naser, the commander, have radio communication with his subordinates, and
12 I would direct your attention to P84, page 23, on that issue.
13 Your Honour, the Prosecution is of the opinion that the radio
14 communication was not -- the communication system or means available to
15 Naser Oric was not limited to radio communication in that he -- he held
16 meetings which he stated in his interview, meetings imparting information
17 about how attacks were to be coordinated and planned out. Also, we have
18 orders from the Srebrenica armed forces that were issued through radio
19 communication and we would invite the Trial Chamber to review
20 Prosecution's Exhibit 28 [sic], written documentation, Your Honour, from
21 outside the enclave, also demonstrates that information was sent to Tuzla
22 and Sarajevo, information that the Prosecution submits could have only
23 been provided by Srebrenica itself, and we would invite the Trial Chamber
24 to review Prosecution Exhibit 165 as well, which is essentially reports
25 that were submitted to the Srebrenica armed forces by various commanders.
1 The Prosecution submits that there were two information and
2 communication services in Srebrenica and we believe that those two
3 services, one, was attached to the War Presidency, the other was attached
4 to the Srebrenica armed forces, and they were handed by Hamed Alic. We
5 invite the Trial Chamber to look at Prosecution's exhibit 587, and this is
6 not an exhaustive list, Your Honour, just to briefly refer you to
7 documents the Prosecution put into evidence which lists the various
8 members of the fighting units and their positions were assigned as
9 couriers and we should invite you to look at Prosecution Exhibit P587 and
10 P599 on that issue. Your Honour, I would just add and with stating
11 that -- sorry, I was just told I need to correct the transcript. I
12 believe it says Prosecution Exhibit 28. It should state Prosecution's
13 Exhibit 208. And that's line 11, page 69.
14 JUDGE AGIUS: Thank you.
15 MS. RICHARDSON: Your Honour, I would add on the testimony of
16 Mr. Bocerovic, who talked in great detail about the use of the ham radios
17 and that you may recall that he testified that Naser Oric himself used the
18 radio to contact his wife, and other members of the armed forces used the
19 radio as well. The Defence would have you believe that this radio could
20 not be used to communicate -- could not be used or was not used to
21 communicate information to the outside world outside Srebrenica, being
22 Tuzla and Sarajevo, because it could be intercepted. I would invite
23 Your Honours to look at the types of documents and the information that
24 was transmitted by ham radio to Tuzla and Sarajevo, and you will see, and
25 again we rely on our reply brief, but there is a -- there are a range of
1 documents that we think that the Court should take notice of and that's
2 P303, 307, 308, 309, 310, 122, and, Your Honour, the list goes on. And
3 these documents, Your Honour, in fact provide very detailed information,
4 military information, that was transmitted to Tuzla and Sarajevo, either
5 by the War Presidency or the Srebrenica armed forces, some of which were
6 signed by Hamed Alic.
7 Mr. Becirevic, we submit, was not fully aware of the going --
8 of -- of the military situation in Srebrenica or the military
9 organisations, I should say, as he testified he didn't attend any meetings
10 where Naser Oric was present or any other members of the Srebrenica armed
11 forces. He wasn't even aware that Hamed Alic was the chief of
12 communications for the armed forces or that one had been established but I
13 challenge Your Honours to take a close look at P84 where Hamed Alic says
14 there are two separate communication and information services, one
15 attached to the War Presidency and one attached to the Srebrenica armed
16 forces. We think the documents bear these out, as the documents -- some
17 are sent by the Srebrenica armed forces and some are sent by the War
19 Your Honour, I will end on this note, absolutely.
20 After Mr. Becirevic testified, extensively about the system, about
21 the use of the ham radios, and you may recall and I'm short on time so I'm
22 not going to remind you too much in detail, but you may recall that this
23 information was transmitted to Srebrenica and Tuzla. I'd like to end on a
24 note that describes the efficiency, the reliability, the effectiveness of
25 the communication systems available to Srebrenica and I'd like to end on
1 the portion of the transcript where Your Honours we were discussing or
2 that -- Mr. Becirevic was testifying about the use of the ham radios, and
3 that's transcript 7751.
4 Judge Agius posed the question: "So you would then relay this
5 message in whole or in part or in pieces. I can understand you why to
6 contact ham radio -- ham radio contact that you would have, that you would
7 establish. I take it from what you are telling me that in spite of the
8 difficulties that there -- that there obviously were, this was pretty much
9 well organised in that I see here that you relayed it on the 1st of
10 November and on the same day it was received by the Ministry of Defence of
11 the Republic of Bosnia-Herzegovina. So whatever -- so - excuse me - so
12 whoever received your radio communication in whole or in pieces
13 transcribed it, reduced it into writing, and handed it over to the
14 Ministry of Defence on the same day. So do I take it that this system was
15 pretty well organised or am I wrong in my assumption?" That was your
16 question to Mr. Becirevic. Mr. Becirevic responded: "Yes, Your Honour.
17 If you think that this is a good organisation, then yes, we were well
19 And he went on to say, "However, it was very -- it very often
20 happened that the radio operator who was sitting in Sarajevo could not
21 receive or forward the information the same day. Sometimes he would do it
22 on the following day. However, the goal was always achieved. The goal
23 was for the information to arrive at the addressee's address and it
24 eventually did."
25 Your Honour, I need not say much more about the communication
1 systems that were available to Naser Oric, except to say that he had
2 communication means within the enclave and outside, and he had -- and
3 these were means that were materially available to him and he failed to
4 use it. Not because it was impossible but because he chose not to.
5 Thank you, Your Honour.
6 JUDGE AGIUS: Thank you, Ms. Richardson. You referred to P208?
7 MS. RICHARDSON: Yes, Your Honour.
8 JUDGE AGIUS: My records, at least your witness, Becirevic, wasn't
9 quite that happy with that document.
10 MS. RICHARDSON: Perhaps we can bring it up on screen,
11 Your Honour.
12 JUDGE AGIUS: To my knowledge, he categorically confirmed or
13 acknowledged from all the documents that you mentioned, only one, that's
15 MS. RICHARDSON: Your Honour, I'm having that document brought up
16 on Sanction so we can further --
17 JUDGE AGIUS: I don't need to see the document. I'm just
18 referring you to Mr. Becirevic's testimony about it and the other
19 documents that you mentioned, 303, 307, 309, 310, et cetera.
20 MS. RICHARDSON: Your Honour, I believe, based on my memory, not
21 having specifically gone back to this exact point, I believe in summary
22 Mr. Becirevic testified that there were documents that he recalled sending
23 and that there were certain documents that he was not sure that he had
24 sent and then there were others that he had initialed and said that he
25 sent. So I submit that the Trial Chamber should look at the documents as
1 a whole and if --
2 JUDGE AGIUS: All right.
3 MS. RICHARDSON: -- we can -- I can definitely get back to you
4 specifically with that document, Your Honour.
5 JUDGE AGIUS: All right. So we'll have a break of 30 minutes.
6 Now, would that be enough for you or do you wish to have a shorter break,
7 Ms. Sellers?
8 MS. SELLERS: Your Honour, 25 minutes would be fine.
9 JUDGE AGIUS: All right. Is that agreeable to you? So we'll have
10 a 25-minute break starting from now. Thank you.
11 --- Recess taken at 12.32 p.m.
12 --- On resuming at 1.02 p.m.
13 JUDGE AGIUS: Sorry for the delay, Ms. Sellers. I understand that
14 there was some kind of a problem.
15 MS. SELLERS: I believe that counsel were locked out of the
17 JUDGE AGIUS: I see. Who was locked out?
18 MS. SELLERS: Mr. Di Fazio and Ms. Richardson.
19 JUDGE AGIUS: All right.
20 Yes, who is next?
21 MS. RICHARDSON: Your Honour, before Mr. Di Fazio makes his
22 submission, I would like to just briefly address to Your Honours the
23 question that you inquired upon.
24 JUDGE AGIUS: Yes.
25 MS. RICHARDSON: With respect to P208 [Realtime transcript read in
1 error, "P028"], and in fact I remember the -- this goes in that document
2 very well in the courtroom when Mr. Becirevic testified. I would first
3 state that the question itself posed by the Defence about whether or
4 not -- and I would read from the transcript, 7812. The question was: Do
5 you agree with me.
6 JUDGE AGIUS: One moment, because we better correct it now rather
7 than later, line 12, it's not P028 -- it's P208.
8 MS. RICHARDSON: Yes, thank you.
9 JUDGE AGIUS: Thank you.
10 MS. RICHARDSON: The question quoting from transcript 7812 on
11 cross-examination of Mr. Becirevic:
12 Question: "Do you agree with me when I say this document was
13 written in an extremely incoherent manner and this seems to suggest an
14 author who is not well educated and not particularly given to writing
16 The answer was: "Yes, it is true."
17 Your Honour, I recall objecting to this question on the grounds
18 that it invited speculation from the witness. The question was posed in
19 another manner but still I -- the Prosecution maintain that it invited
20 speculation from the witness who had previously testified that he was not
21 involved with military matters and had no knowledge of military matters
22 including the use of couriers and codes, and we've heard from the accused
23 through his interview that there was a system of couriers and codes, et
24 cetera. So, Your Honour, the Prosecution is of the position that that
25 notwithstanding that the witness did not reject the document. All he
1 could say was that it did not appear to have been written in a style that
2 he could attribute to his brother and that's the Prosecution's position on
3 that point.
4 JUDGE AGIUS: Okay. I thank you so much, Ms. Richardson.
5 Who is next, Ms. Sellers? I suppose?
6 MS. SELLERS: Your Honours, I'll be addressing you next and it
7 goes to the issue of Naser Oric's 7(3) responsibility throughout the time
8 period of our indictment, which is from 1992 until 1995.
9 Your Honours, effective control means that one has to have
10 reasonable means, material ability, to effectively control subordinates
11 but control that specifically goes to preventing the commission of crimes
12 and if those crimes were unfortunately committed and we certainly use
13 committed in its larger sense, aided and abetted, committed, in any way
14 participated in, that that superior then has to punish those crimes.
15 The Trial Chamber has heard a lot of testimony concerning
16 inability in Srebrenica in 1992-1993, to do anything, to set up any
17 system, to have a War Presidency, to have a military police, to have any
18 type of functioning court system. The Prosecution submits that failing to
19 prevent and failing to punish does not need a judicially sanctioned means
20 such as a formal court, or even a formal, judicially sanctioned superior.
21 Your Honours, I take you to the Blaskic appeals decision where indicators
22 of effective control are more a matter of evidence than substantive law
23 and indicators are limited to showing whether the accused had the power to
24 prevent, punish or initiate measures leading to proceedings against
25 alleged perpetrators. I'm quoting from the Blaskic Appeals Chamber
1 Judgement of the 29th of July 2004, paragraph 69, because the Prosecution
2 puts before Your Honours that the situation in Srebrenica in 1992, 1993,
3 1994, might not have permitted Tuzla or Sarajevo to come down and give the
4 absolute legal seal of approval on every military institution, including
5 military courts, but that does not leave the subordinates in Srebrenica
6 outside of the law, outside of military law, outside of even discipline.
7 Your Honours, the superiors within Srebrenica knew that there were
8 legal limits and that going across such barriers could incur punishment.
9 Naser Oric says in his suspect interview that one of the first things he
10 did was to issue an order about not burning and during the interview, I
11 believe he contacted Mr. Mazic to confirm if that order had been issued
12 and it appears that it has. We never saw the order brought before this
13 Trial Chamber. We never saw one Defence witness asked whether he
14 remembered that order coming out. We heard so much that there was no
15 paper. Well, it would have been good if there had been an order because
16 the paper that could have been sacrificed in writing this order certainly
17 was worth it or even if it was transmitted orally, via communications,
18 Motorolas, in meetings, that would have at least shown that he took the
19 reasonable measures that he materially had available to him to prevent.
20 We have never seen a discussion in P84 about a standard [inaudible] not to
21 destroy, wantonly destroy, the property after attack. What we have seen
22 instead in P84 is omission of that discussion or we have a situation where
23 we see a warning, "Burn after we have finished or burn after there has
24 been a collection of goods." Now, the Prosecutor did not charge Naser
25 Oric with the attacks in Skelani but I would take to you P84, new P84.1,
1 and I have page 50, "Skelani was burned." The discussion at the OS Staff
2 meeting that was held on the 10th of January 1993, and this is an OS Staff
3 meeting, not a joint War Presidency meeting, says "Skelani was burned,
4 arson should not be allowed before people from Skelani take back their
5 belongings." Almost to suggest that that criminal act is sanctioned after
6 taking back belongings but not before.
7 Your Honour, one might ask, then, why was there no discussion of
8 "we do not burn Skelani. I've heard that there was been burning at other
9 places, Fakovici, Bjelovac, Jezestica, the burning has to stop." No the
10 burning is conditioned upon when people can go to take their goods back.
11 Your Honour, that goes a long way to showing why Naser Oric did not
12 prevent, nor punish. You do not prevent or punish something that you
13 agree should happen or even if you're indifferent that it should happen,
14 or as a matter of fact in pattern or policy it does.
15 During 1992 up until the end of January Your Honours need look no
16 further as to why he didn't use any available means to prevent this type
17 of wanton destruction, because it was a choice. That doesn't mean that
18 later on, in 1993, after the hundreds, after the thousands, after the tens
19 of thousands, of refugees come into Srebrenica and the humanitarian crisis
20 is becoming acute, in the Defence's terminology, the slow-motion genocide
21 is rising, and then we have demilitarisation where many refugees now leave
22 the area and where the organisational structure seems to confirm itself,
23 become more complex, and not less complex. We have soldiers coming in
24 from Cerska that now come under the 8th Operational Group. We have the
25 different soldiers coming in from areas that have fallen but they are all
1 in Srebrenica now, forming, reforming themselves into units, all
2 subordinate to Naser Oric.
3 We have the military police having been demilitarised. Now, the
4 fact that Naser Oric didn't use the institution of the military police
5 prior to demilitarisation for these types of crimes leaves a bit of a
6 question mark. I'll return to that in a second. But during
7 demilitarisation we have Hakija Meholjic who said, "I took over the
8 police," took over what was probably the functioning civilian police.
9 Even if he did take over the military police we have an institution of law
10 enforcement. Hakija Meholjic said that if he had had information passed
11 to him concerning crimes committed by the military he would have
12 investigated, as he did on certain occasions. That's the situation of
13 Emir Halilovic, the killing of the Serb family. It wasn't perfect but it
14 was functioning. Omerovic now has a civilian court system that would look
15 at some of the complaints that occurred from military members. That
16 doesn't mean that the jurisdiction for war crimes which is now in the
17 military district court in Tuzla has been usurped or taken over but it
18 means there could have been a method, and there was a method of
19 transmitting information to Tuzla even if people couldn't be held beyond
20 three days, and that seems to be one of the impossibilities we hear, the
21 information that they should be removed from the area as soon as possible
22 or let it be known in a file in Tuzla, in Sarajevo, that these members of
23 the military have committed crimes, was not done.
24 If you recall, there was testimony concerning discipline of
25 soldiers, information that was sent to Tuzla by a legal officer, Rasid and
1 the information concerned disciplinary measures. Who was held
2 temporarily? The information shows that there was some effort to
3 discipline in the demilitarisation time period in Srebrenica, irrespective
4 of the number of refugees, irrespective of the level of humanitarian
5 crisis. Your Honours, it's because they chose not to turn their attention
6 to crimes committed against Serbs that we do not show the evidence because
7 there was no evidence of those military men being asked to explain what
8 they did when they went to Jezestica or to Fakovici or to Gravica.
9 Your Honours recall that the Prosecution has spoken quite often
10 about a document referred to as P598 which we put forth as a type of war
11 path of the various units. There is a Huso Juric, whose name appears
12 throughout the document, and it seems apparent that if he was, if not one
13 of the recorders, he was the person that went around to the different
14 units to get the information. He asked the same question every time:
15 Where did you attack? Where did you defend. You know, who were your men,
16 what was your weaponry, and then afterwards there was a section where he
17 gathers information about who might receive awards or not. He seemed to
18 be working together with one of the morale officers. But he was
19 collecting information. Among some of the information he collects is
20 evidence that towns were burned, Jezestica was burned, people are thinking
21 back over the history of their participation and they say in document 598,
22 "burnt completely."
23 Even at that very moment, 1993-1994, that information could have
24 been passed to the Legal Officers that Naser Oric was employing at that
25 time regarding discipline, to say, "Would you please look into this? I'm
1 getting information back about these subordinates having burned during the
2 attacks. Can I have more information, please? Can I please transmit this
3 on?" Your Honours, that was not done and that was at a time period when
4 he had access to more military members in the town of Srebrenica, without
5 having to worry about the danger of going from one area to another area
6 within the enclave. That wasn't done because that was never meant to be
7 done. Naser Oric merely chose not to pursue the crimes against the
8 Serbs -- committed, excuse me, committed against the Serbs. I referred
9 earlier to the military police. At times the Defence would have you
10 believe that there was no military police, that it had functioned at such
11 a low level that it had only two or three rifles, as Akif Krdjic says in
12 P84, "I need more rifles." Irrespective of that, Naser Oric acknowledges
13 in his interview that there was a military police, there was that
14 institution. He reported to Ramiz Becirevic. Mr. Omerovic, a witness
15 that we called, who discussed a lot of the impossibility of the Court
16 system does say on transcript 8465 that the military police including
17 Mirzet Halilovic would go to different apartment buildings and forcibly
18 mobilise military-aged men. This was prior, had to be prior, to Mirzet
19 Halilovic being dismissed from the police. The military police could go
20 out and round up people, force them to the front line. The military
21 police in December kept a rather well structured military police book.
22 There might be some mistakes or incidents in there that might leave a bit
23 of questioning but it's a fairly remarkable document of organisation in
24 the midst of a time period when there was not supposed to be any
25 possibility of organization. But if one goes into the document and see
1 what were the types of crimes that were being addressed, they were crimes
2 about taking weapons, crimes about misappropriation of food, at times what
3 might have been rather large quantities of food, particularly for
4 Srebrenica, who desperately needed to share the food among the people who
5 were there. Discussions about prisoners coming into town. And then we
6 have documents relating to the military police that were in the different
7 units. So even if the Srebrenica military police was too localised in
8 Srebrenica and there weren't enough military members in Srebrenica who
9 they could have investigated, we do know that military police,
10 particularly after the reorganisation, were placed in the different units
11 outside of Srebrenica. They could have asked their members there, sent
12 reports, they did, concerning stolen weapons, stolen food. There were
13 reasonable means available. Naser Oric had the material ability. He
14 chose not to use it in 1992 and 1993 or 1994.
15 Now, Your Honours, from Naser Oric's point of view, from his
16 mentality, it could be just a question of priorities. International
17 humanitarian law doesn't ask you to do the impossible but you're not
18 allowed to weigh and balance your priorities and choose not to do
19 anything. I'd like Your Honours to look at a small portion of Naser
20 Oric's suspect interview, and this is coming up now, I believe, it's P329.
21 JUDGE AGIUS: One moment. Yes. The video starts at 3 hours 0
22 minutes and 39.2 seconds.
23 MS. SELLERS: Your Honour, I understand it's transcript 21, page
24 6, line 42.
25 [Videotape played]
1 "Explain to me when it happened. Just as you acknowledged the
2 fact that you did address volunteers, okay, and would it not have been
3 appropriate at that time, whenever you addressed volunteers, welcoming
4 them to the course, or at any other occasion when you stood in front of
5 them, to remind them of their obligations to behave in an appropriate
6 fashion during their actions in the war?
7 "Did you ever do that?
8 Yes. I will give you an example now. When we were attacking
9 this firing line, the line at Zvijezda, when you look from Potocari, it is
10 above the Muslim village of Budak, B-u-d-a-k, before we set out we stood
11 to see roughly how many volunteers had come. I went in front of them and
12 I said to the fighters what was the reason for the attack and where we
13 were attacking. I said that you know that we have people, Muslims, who
14 are down in Konjevic Polje, that they have the same problems as we do,
15 that the Chetniks are attacking us from all sides, that they are -- that
16 they are threatened at this -- that they are threatened at the moment with
17 complete destruction as they are being heavily attacked, and that if we
18 were not -- if we didn't attack the firing lines at Zvijezda, sir, that --
19 and didn't draw attention to ourselves, all of these Chetniks on
20 [indiscernible] would go to the area of Konjevic Polje and that we would
21 have to take it at all costs in order to make it -- make it easier for
22 them to lessen the Chetnik attacks because this point was the entry door
23 to Bratunac. It was an extremely dangerous point. I asked -- I said to
24 them if anyone is afraid, it's better that they leave now, better that he
25 left now rather than that he went along and then be scared later on if
1 someone trod on a mine or whatever, that we would have to take them back
2 as well as our real fighters. I told them that this was a hill strewn
3 with various kinds of mines and that it would be difficult to take it.
4 I understand that but when you get to the point of my question --
5 was it at this occasion you said something in relation to discipline and
6 their behaviour in battle? Because that's the only thing I need to know
7 for this question so we can move on
8 I don't understand how they behaved -- there is no rules of
9 behaviour in a battle. You've got a gun, I've got a gun. The only rule
10 is who is going to kill who first?
11 Is that right? You shoot at me and I shoot at you?
12 There is no language here, there is no speech. The only -- the
13 only discussion is through barrels.
14 Yes, but if one of us are wounded, not dead, if one of us -- wait
15 a minute, and if one of us is taken prisoner, they are -- those are the
16 rules my colleague is referring to.
17 The commanders received orders and it wasn't for me now as a
18 commander to go to each soldier and explain this to them. This was for
19 the local commanders. They were responsible for carrying out --
20 They were responsible for carrying out the preparations with their
21 groups, but upon an occasion like that when you had all the soldiers in
22 front of you, surely you could have taken the opportunity to remind them
23 of their responsibilities.
24 Yes, I did. I told them that they had to behave in a military
25 way, and you can understand everything from that."
1 JUDGE AGIUS: So the video was stopped at 3 hours 07 minutes 39.8
2 seconds. Yes, Ms. Sellers?
3 MS. SELLERS: Your Honours I'll conclude on this section by
4 stating that Naser Oric couldn't allow demilitarisation could equate
5 impunity and if he gave his local commanders orders, which he says he did,
6 then he was alerted that if crimes occurred he should have punished them.
7 He's also alerted if he gave the order not to burn, that he had a duty to
8 prevent crimes.
9 Your Honour, Naser Oric had effective control, he's probably one
10 of the few military officers whose staff wants to resign because he's not
11 using his effective control. Please use it. They are pleading with him
12 to use the power he has. He had the power, he had the reasonable means,
13 the material ability. He chose not to prevent or punish the crimes
14 against the Bosnian Serbs who are the subjects of our amended indictment.
15 Right now we are going to hear a bit about the hostile witnesses
16 and then we will conclude our closing arguments.
17 JUDGE AGIUS: I understand that will be Mr. Di Fazio.
18 MR. DI FAZIO: Yes, if Your Honours please. I won't trouble you
19 for long on this issue. The points I can make -- I want to make can be
20 made briefly. I want to address some comments to you about the witnesses
21 in this case. By now you have heard all and many arguments from the
22 Defence and the Prosecution concerning credibility, reasons why you should
23 believe some witnesses, disbelieve others, and so on. I certainly am not
24 going to get into that.
25 In the main I want to deal with the issue of hostile witnesses.
1 Before I proceed any further, though, there is just one brief matter that
2 I want to raise. The Defence criticised the Prosecution for its approach
3 to their witnesses, and commented on the Defence -- on the Prosecution
4 motivations for criticising witnesses. You'll find those references at
5 paragraphs 92, 94, 100, and 101 of the Defence reply. I'm not going to
6 read out what is said. All I can say to you -- all I want to say to you
7 about that is this: If Your Honours please, the -- any criticisms that
8 the Prosecution has made of Defence witnesses spring from forensic issues
9 and no other considerations.
10 Hostile witnesses, if Your Honours please. The Defence suggests
11 that the Prosecution decision not to treat Nedret -- Dr. Nedret Mujkanovic
12 as a hostile witness requires the Prosecution to accept his damaging
13 testimony as a concluded fact, a conceded fact. The Prosecution's
14 submission to you is that this position is wrong, clearly wrong, and it's
15 not sustained by anything that the Defence has argued or put to you in its
16 briefs, in their reply, or in their closing brief.
17 The crux of the matter lies in paragraph -- sorry, footnote 29 of
18 the Defence closing brief, where they deal with -- in fact, at that point
19 they are dealing with the evidence of Hakija Meholjic and two points
20 emerge from footnote -- the all important footnote 29. That's what I'm
21 going to be speaking to you about. Two points emerge from the -- from
22 that footnote. Firstly, it is said that there is a general principle that
23 a party cannot impeach its own witness and, secondly, the reason for that
24 is that a party guarantees his own witness's credibility and a party is
25 morally bound by the testimony of his own witness. And as authority for
1 those propositions, the Trial Chamber is referred to an article appearing
2 in the Toronto Law Journal, the author, Mr. Bryant, entitled "The Common
3 Law Rule Against Impeaching One's Own Witness."
4 Before I look at the article, I urge Your Honours to remember the
5 wording of the footnote. It is a general principle of law and one
6 recognised by this Tribunal. No authority is provided to you, none at
7 all, on why that should be so and why it is that the following principles
8 are recognised by this Tribunal.
9 The -- what the Defence is really seeking to do here, if
10 Your Honours please, is not to -- what they are really concerned about is
11 not to establish that the Defence can't impeach its own witnesses. There
12 has been no attempt on the part of the Prosecution to do that, in any
13 event. What the Prosecution -- what the Defence really seek to do here is
14 to ensure or ask you to accept that the Prosecution is morally bound and
15 must guarantee everything Mujkanovic said, including his damaging
16 testimony. And they rely, as I said, on the article. The important thing
17 for you to do in the Prosecution's submission, is to go to the article and
18 it's been provided to Your Honours. I think you have full copies of it.
19 JUDGE AGIUS: Yes, we have.
20 MR. DI FAZIO: I'm not going to take you through it. It's an
21 interesting article and deals with the history of the common law rule
22 against impeaching one's own witnesses except where they are declared
23 hostile. And it's apparent from reading the article that the author makes
24 clear that the rule against impeaching one's own witnesses is developing
25 constantly in the common law world and you can see that, for instance, at
1 page 431 of the article, where it describes the developments that occurred
2 in the 19th century and the changing and evolving positions of the rule.
3 I don't intend to take you through it but there is a discussion of
4 colleges case and a discussion of developments between 1800 and 1850,
5 where -- and the author notes, in the period between 1800 and 1850 the
6 rule appeared more frequently in the reported cases and it became clear
7 that the mere fact of having called a witness will not preclude a party
8 from proving the truth of any particular fact material to the issue by any
9 other competent testimony though such evidence may be in direct
10 contradiction to what the witness may have testified.
11 That's just one reference to one period of the developing and
12 evolving rule. So that the central submission I make is that what springs
13 out at you from this article is that it's not a static rule and it
14 differs, indeed, from common law jurisdiction to common law jurisdiction.
15 Furthermore, and I don't need to dwell on this, Your Honours have
16 made pronouncements throughout this trial and the law and jurisprudence of
17 this Tribunal is redolent with observations that you are not bound by the
18 Rules of Evidence springing from domestic jurisdictions or national
19 jurisdictions. However, if you go to the actual quote itself, that is
20 contained -- that is extracted and placed in footnote 29, it's clear that
21 the Defence failed to cast their eye as far as the beginning of the
22 sentence that they quote and they failed to cast their eye into the
23 sentence below. The pronouncement -- the quotation is an extract of a
24 sentence at the top of page 433. There you can see those words, a party
25 guarantees his own witness's general credibility and a party is morally
1 bound by the testimony of his own witness. What precedes the sentence,
2 though, is this: The admission of this evidence conflicts with two of the
3 traditional reasons given in support of the rule. A party guarantees his
4 own witness's general credibility and a party is morally bound by the
5 testimony of his own witnesses -- of his own witness. Wigmore, which I
6 believe is a well known North American text on evidence, states that the
7 reception of this evidence signifies the rejection by the Courts of those
8 justifications for the rule. This article is in no way support for the
9 proposition advanced in footnote 29. It's emphatic and it's surrounded by
10 words that make that clear.
11 So the reliance that the Defence places on this article is
13 The issue, though, if Your Honours please, has been looked at and
14 pronounced upon, not precisely this issue of witnesses said to be hostile
15 but the assessment of witness evidence has been pronounced upon in the
16 Appeals Chamber in the Kupreskic decision of the 23rd of October 2001, at
17 paragraphs 332, 333, and 334, where the Appeals Chamber said, and I should
18 quote, it's only brief, and I can't put it any better. "It is of course
19 open to a Trial Chamber and indeed any Tribunal of fact to reject part of
20 a witness's testimony and accept the rest. It is clearly possible for a
21 witness to be correct in her assessment of certain facts and incorrect
22 about others." And then at paragraph 333, "The jurisprudence of this
23 Tribunal confirms that it is not unreasonable for a Tribunal of fact to
24 accept some but reject other parts of a witness's testimony. The
25 situation before the Appeals Chamber in the present case is akin to those
1 cases within the jury system where a jury returns different verdicts on
2 different counts even though the evidence for all counts comes from one
4 And then in paragraph 334, the Appeals Chamber says, "The Appeals
5 Chamber has reiterated the importance of such a holistic approach to
6 assessing credibility within its own jurisprudence. A Tribunal --" and
7 referring to the Tadic case, "A Tribunal of fact must never look at the
8 evidence of each witness separately as if it existed in a hermetically
9 sealed compartment. It is the accumulation of all the evidence in the
10 case which must be considered. The evidence of one witness when
11 considered by itself may appear at first to be of poor quality but it may
12 again strength from other evidence in the case." That's the approach that
13 the Prosecution urges upon you. You are entitled to, and you should, and
14 you are free to, look at the evidence of Dr. Mujkanovic in the light of
15 all the other evidence in the case and you're free to reject parts of it,
16 accept parts of it, accept none of it, accept all of it, whatever you wish
17 as you are the triers of fact. So the -- and that approach, if the --
18 that approach, of course, the fact that you are free to do that vitiates
19 against any tying of this court's hands by the suggestion that the
20 Prosecution is morally bound to accept that position, guarantees that
21 position. If that were so, this case would have ended after
22 Dr. Mujkanovic had testified.
23 So that's all I want to say to you about this issue. The
24 proposition of law advanced by the Defence just hasn't got legs. It can't
25 walk in the first place because it's not authority for what it's said to
1 be. Those rules don't apply here in this particular Tribunal. You're
2 free to decide what facts you choose to accept or reject and that is the
3 approach that the Prosecution urges that you adopt in this case.
4 JUDGE AGIUS: I thank you, Mr. Di Fazio.
5 Ms. Sellers? We have got four minutes.
6 MS. SELLERS: Yes. And we will conclude within those four
7 minutes, Your Honour.
8 JUDGE AGIUS: Yes, I appreciate that because I have another at
9 2.15 and it is bound to last, I don't know how many hours.
10 MS. SELLERS: While there is so much more that one could say I
11 think enough has been said. I think Your Honours have the evidence
12 before you. You have the Accused before you. You have the pleadings
13 from both parties before you. The Defence will make their submissions.
14 Your Honours, if I would ask you to remember one thing, I would
15 certainly say that oh, and then another thing and then another thing. It
16 will be the totality of the evidence. I cannot give you one key. What I
17 can advance is the following thought: When awards were to be given out,
18 when people were to be rewarded in Srebrenica, as subordinates, in the
19 armed forces, even under the 8th operational group, even those who were
20 deceased, such as Mirzet Halilovic, they mention valiant victories in
21 which the subordinates had taken place or participated, and for Mirzet
22 Halilovic, they recounted Kravica and they said that he left Kravica
23 bloody and burning.
24 I want Your Honours to look at the picture on Sanction offered by
25 Defence witness. It's P460. Your Honour, this was taken, if I understand
1 correctly, by Philipp and I would like to finally pronounce one name
2 correctly in this Tribunal -- Recklinghausen, I probably didn't do it
4 Your Honour, the Prosecution would ask you to look at this
5 carefully. Naser Oric with his well-armed, uniformed men on horse, and
6 leave you with the understanding that Kravica, on the day that it was
7 taken, was bloody and burning. And Your Honours, this is a victory shot.
8 This is going back into where we were victorious, we destroyed with fire.
9 It's celebrated. It is not evidence of punishment. Naser Oric did not
10 prevent or punish the crimes against the Serb victims. Naser Oric should
11 be shown to be guilty beyond a reasonable doubt because he declared
12 victory over crimes.
13 Your Honour, this will conclude the arguments from the
14 Prosecution. Thank you.
15 JUDGE AGIUS: Okay. I thank you, Ms. Sellers and I thank you,
16 Mr. Di Fazio, Ms. Richardson. Two small things for when the Defence would
17 have finished. I draw your attention to page 199 of your final brief.
18 You make reference to P456, and use it to strengthen or to sustain one of
19 your submissions. P456 was admitted orally on the 2nd of November 2004
20 only, however, to prove the existence of an armed conflict and for no
21 other reason. That's one thing I wanted to point out to you.
22 Then in paragraph 25 of your final brief, you mention or you
23 allege or submit that there are 17 documents from the Sokolac collection
24 that have been made use of by the Defence but you do not indicate which
25 ones you are referring to.
1 And then equally in paragraph 28, you make a statement that --
2 this is page 14, the Defence made extensive use of documents from the
3 Drina Corps collection to assist the case but there is no indication as to
4 which documents you are referring to. Basically there are no footnotes.
5 We would like you to address this when you make submissions on Friday.
6 Also, how you submit we should look at -- at the moment, I can't remember
7 the exhibit number, but the Defence entered into the records a report from
8 Dr. Fagel or by Dr. Fagel on various documents on which the name of Zanin
9 Zananovic [phoen] appeared together with a signature next to the name, and
10 apart from what Dr. -- from Zananovic himself stated in a statement that
11 is also on the records, it seems to me, reading Dr. Fagel's report that
12 there is barely one document that he has examined that he can attribute
13 any measure of probability to Zananovic himself.
14 So we would like to hear submissions on how you submit we should
15 look at all those documents, some of which you mentioned this morning,
16 like document P15, if I remember correctly, P15, P16, any way, there are
17 several of them, quite a number.
18 I leave you with that. I thank you so much for all your
19 submissions. Tomorrow we'll start with your submissions, and then Friday,
20 as we agreed will be dedicated to tying up the few loose ends that there
21 will be. But if you need Monday as well, we are prepared to give you
22 Monday. All right? Thank you.
23 --- Whereupon the hearing adjourned at 1.50 p.m.,
24 to be reconvened on Wednesday, the 5th day of April,
25 2006, at 9.00 a.m.