Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16545

1 Monday, 10 April 2006

2 [Open session]

3 [Closing statements]

4 --- Upon commencing at 9.06 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Madam Registrar, good morning to you. Could you

7 call the case.

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

9 number IT-03-68-T, the Prosecutor versus Naser Oric.

10 JUDGE AGIUS: I thank you. Mr. Oric, can you follow the

11 proceedings --

12 THE INTERPRETER: Microphone, please.

13 THE ACCUSED: [Interpretation] Good morning, ladies and gentlemen,

14 Your Honours. I fully understand the proceedings in my own language.

15 JUDGE AGIUS: Appearances.

16 You may sit down. Thank you and good morning to you.

17 THE ACCUSED: Thank you very much.

18 JUDGE AGIUS: Appearances, Prosecution.

19 MS. SELLERS: Good morning, Your Honours. I'm Patricia Sellers

20 for the Office of the Prosecutor. With me today are co-counsel Gramsci

21 di Fazio, Ms. Joanne Richardson and our case manager, Ms. Donnica Henry

22 Frijlink.

23 Good morning to the Defence.

24 JUDGE AGIUS: I thank you, Ms. Sellers, and good morning to you

25 and your reduced team.

Page 16546

1 Appearances for Naser Oric.

2 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

3 morning to my friends from the OTP. My name is Vasvija Vidovic and

4 together with John Jones I appearance for Naser Oric. We have with us our

5 legal assistant, Ms. Adisa Mehic, and our CaseMap manager Geoff Roberts.

6 JUDGE AGIUS: I thank you, Madam, and good morning to you and your

7 team.

8 Before I give the floor to Mr. Jones, any preliminaries? None?

9 Mr. Jones.

10 MR. JONES: Thank you, Your Honour.

11 Today I propose to deal with four broad subjects. The first is to

12 answer Judge Brydensholt's question regarding who the guards were at the

13 two locations and our position on that. Secondly, dealing with the

14 opportunistic visitors to the prison and whether it was the guards or they

15 who committed crimes in the two locations. Thirdly, I want to address the

16 Prosecution's case as set out in the indictment and their case as it now

17 emerges at the end of the trial and it's what I'll be referring to as the

18 Prosecution's L, and we know what that means and I'll come back to that

19 later. And then fourthly I'll be rejoining various points made by the

20 Prosecution on Friday generally, just on a number of issues.

21 JUDGE AGIUS: In order for us to plan the sitting, how much time

22 do you anticipate you'll be?

23 MR. JONES: Well, I'm hoping I might be finished by the first

24 break. That might be over-optimistic, but that's certainly possible.

25 JUDGE AGIUS: No, no, take your time. I'm just saying because

Page 16547

1 otherwise I will -- I could give more time depending on how much time you

2 require, in other words.

3 MR. JONES: Yes, I'm aiming for the first break.

4 JUDGE AGIUS: Yes, that's perfect. Thank you.

5 MR. JONES: Okay. Thank you.

6 Now, as far as the first point is, the guards at the two

7 locations, I'll use that as shorthand, we refer to the SUP and building,

8 with a capital B, and the Prosecution refer to these two scenarios. But

9 for the present purposes our case is that the Prosecution has not proved

10 their allegation, their allegation that the military police were the

11 guards at both locations. That's their allegation and they haven't proved

12 it.

13 We say that it was the civilian police who were the guards there,

14 but of course that's not something which we have the burden of proving.

15 Nonetheless, we are content to say that that's what the situation was.

16 And it's paragraph 22 of the indictment where the Prosecution clearly made

17 that allegation that the guards were military police, and I think there's

18 no dispute at least about that allegation.

19 Now, Ms. Richardson had two arguments essentially on Friday as to

20 why they say the military police were the guards at the locations, and one

21 was based on this Cude, Sabahudin Omerovic, and since the spelling is

22 going to be important I think I should probably now make sure that's

23 correct in the record. Yes, that's correct. And secondly what the

24 accused said in his interview about Mirzet Halilovic.

25 Now, neither of them are sustainable arguments. And actually

Page 16548

1 first and foremost when we're considering the second location, the

2 building, neither of those arguments apply to the second location, I think

3 that needs to be absolutely clear, because there's no evidence relating to

4 Cude at the second location. And Mirzet Halilovic died in January 1993,

5 so equally that argument can't apply to the second location. So in my

6 submission, firstly they have no arguments whatsoever for the military

7 police being the guards at the second location.

8 But let's go back to those two arguments in relation to the SUP.

9 Now, what did -- who did Slavoljub Zikic say Cude was in fact when you

10 look at his evidence? He said it was Sabahudin Omerovic,

11 S-a-b-a-h-u-d-i-n Omerovic. And that's -- in fact, yes, we see the slide.

12 It's 16 December 2004, T3346-3347, and I believe everyone has a hard copy

13 of the slides, so obviously you can mark those up.

14 "Question: And in fact one of the guards in the prison also knew

15 you prior to your being kept prisoner there?

16 "Answer: Yes. He knew me. He was a former police officer from

17 Bratunac. His nickname was Cude. His last name was Omerovic and his

18 first name was Sabahudin."

19 And it's also on T3210, I'm not sure we have a slide on that, but

20 he mentioned the same twice, Zikic, and each time he said Sabahudin

21 Omerovic, and it's someone he knew before the war.

22 Now, let's look at P590 which the Prosecution is linking this to

23 where they say the name appears, and in fact it's Selahudin Omerovic.

24 It's number 15, S-e-l-a-h-u-d-i-n.

25 Now, the fact is, Your Honours, that's a different name in Bosnia,

Page 16549

1 and it's as different as Alfred and Wilfred, even if they both end in

2 Fred, and not only are they totally different names but you should recall

3 that Mr. Zikic is a Bosnian. He's from Bosnia, and while we in the West

4 might think the names are similar or might confuse them, he didn't. He

5 knew this person from before the war. He mentions his name twice and each

6 time he said Sabahudin. And in fact he knew him as a civilian policeman

7 before the war as well, a policeman in Bratunac, and obviously before the

8 war that would be a civilian policeman rather than military policeman.

9 Now, Omerovic, as we've seen, is a very common name in that part

10 of Bosnia. We've heard of at least three Omerovices: Hazim Mrki

11 Omerovic; Safet Omerovic, Mis, and we even had a witness here Mensud

12 Omerovic. There are Omerovices all over Srebrenica, and as you look

13 through the exhibits you'll see that.

14 Secondly, P590 also doesn't refer to Cude. At least if you had

15 the nickname in common then you might think that the names were the same,

16 but you don't even have the nickname Cude.

17 And so, Your Honours, it would be a complete error to assume that

18 Sabahudin Omerovic is the same person as Selahudin Omerovic without

19 anything else to go on. I have a very good Bosnian friend who has two

20 sons Amir and Emir, and how much of a mistake would it be to think that

21 Amir Omerovic is the same person as Emir Omerovic. It would be a complete

22 mistake, and there's only one letter difference. And in fact, our

23 assistants, Adisa has a brother Adis; and our other assistant Jasmina has

24 a brother Jasmin. It's actually quite common to give children names which

25 are quite similar.

Page 16550

1 So I don't know if Selahudin Omerovic is a brother of Sabahudin

2 Omerovic, or his cousin, or absolutely no relation at all. All we do know

3 is it's a different name, as different as Kevin Smith and Keith Smith,

4 even though to Bosnian ears they may sound similar too.

5 And also bear this in mind, Your Honours, that the Prosecution

6 proofed Mr. Zikic, and they knew that their case was based on Zikic seeing

7 that person in the prison. They could have known him P590, or they could

8 have otherwise clarified when he testified whether it really was Sabahudin

9 or someone of some other name but they didn't. So that argument simply

10 does not work, the Cude argument.

11 Moreover, there's evidence that Selahudin Omerovic, the person in

12 P590, was in the civilian police, just like Nurija and just like Zele whom

13 I'm coming to shortly, and that's D871, and you can see he's at number 24.

14 And I would draw your attention to Nurija Jusufovic, number 3, and Elvir

15 Djozic who we know is the one-armed policeman, Zele, at number 4. I'm

16 going to come back to them.

17 Now, interestingly the Prosecution want to rely in this case on

18 P458 to show members of the military police. Well, you'll note that

19 there's no Sabahudin Omerovic mentioned there. There is a Sabahudin

20 Osmarovic at number 7 on page 3, and in fact only five names overlap

21 between P458 and the list of military police there and P590, and I would

22 just again emphasise the Prosecution's exhibits contradict each other.

23 And, again, I think I made it clear on Friday, and I'll elaborate

24 if I need to, but our position on Prosecution exhibits when we point ut

25 these contradictions we're not relying on them. We're simply pointing out

Page 16551

1 the contradictions in their exhibits, and if that's not clear I'm happy to

2 clarify but I think -- I think Your Honours have understood. Right.

3 Now, our case, as I say, is that the civilian police were the

4 guards, and that's set out at paragraphs 532 to 545 of our final brief.

5 And without superseding what's stated there we can present some of the

6 evidence with slides, and it's important to do so because I think you'll

7 finally begin to see the links between Becir Bogilovic, Nurija, Zele and

8 the prisoners.

9 So we can start with what I'm generally calling the evidence

10 relating to the upstairs of the SUP. You'll recall that Becir Bogilovic's

11 evidence that the military police were on the ground floor and the

12 civilian police were on the first floor. It's not evidence we accept

13 because we say they were mixed together. But if that's the case

14 nonetheless, if the civilian police was on the first floor, and if it was

15 being run from the first floor, then it's a reasonable assumption or

16 inference that the guards who brought the prisoners up to the first floor

17 for interrogation were civilian police. They were getting them from the

18 cells, taking them upstairs for interrogation, and taking them back down

19 again.

20 And you'll see a pattern in the evidence. You'll see Ratko

21 Nikolic first of all. Yes. "He took me out and took me upstairs at the

22 police station. There was a man sitting there and there was a pistol and

23 a knife there on the table."

24 Upstairs at the police station.

25 Zikic: "On another occasion, I went to the first floor, because

Page 16552

1 this was on the ground floor, so this time I went to the first floor,

2 where the questioning was conducted by the police."

3 So again, this would be the civilian police conducting

4 questioning.

5 And then on P98. This was Sarac speaking. "Then they called me

6 for an interrogation upstairs to Mirza ... He is head of the SUP."

7 Now, if that's a reference to Mirzet Halilovic, you'll see that

8 although he is the military police commander, he's there on the first

9 floor where the civilian police are which just goes to show that the

10 military police and the civilian police were mixed together and that

11 Mirzet Halilovic as we know was the subordinate of Becir Bogilovic. But

12 I'll return to that too.

13 So you have all that evidence of actually people being brought

14 upstairs for interrogation, and I submit that's evidence that the civilian

15 police were the guards and that they were running the show.

16 Then if we consider Nurija. And Nurija Jusufovic is terribly

17 important when one comes to the SUP. You'll recall that Nurija Jusufovic

18 was the civilian police chief and his fingerprints, figuratively speaking,

19 are all over the SUP and all over the building and all over the prisoners.

20 And you'll see that addressed at paragraphs 537 to 540 of our closing

21 brief. He was involved in providing blankets to detainees in the second

22 location, in refurbishing the premises at the second location. And he's

23 linked to -- linked to both places, as is Zele.

24 Now, if we look at what Ivanovic said, and this is when he was

25 brought to the SUP. I won't read the dates since it's on the record with

Page 16553

1 the slides. But Ivanovic said: "Nurija was standing in the hallway of

2 the police station," this is when Ivanovic arrived at the SUP, "And he

3 asked me, Chetnik, do you know Pero Milosevic," et cetera, and he was

4 subjected to verbal abuse by Nurija.

5 "And after he said this to you, did he ask you any questions about

6 yourself or anything else for that matter?

7 "After that they seized my wallet." And that includes all these

8 identification details and documents. "They made some remarks and then

9 took me along to the cell to the right of the entrance to the police

10 station."

11 And we have bean to that location and we know very well that's

12 exactly where the cells are as you go in to the right.

13 "Once I was just outside the cell they opened the door. One of

14 them kicked me in the small of my back, and I banged my head against a

15 radiator."

16 Now, I can't emphasise strongly enough the significance of that

17 evidence. This is the civilian police chief receiving a Serb detainee in

18 the SUP, taking his documents from him, taking him or at least his people,

19 Nurija's people taking him to the cell and being the first to mistreat him

20 as well, kicking him into the cell.

21 It shows that the civilian police were dealing with the detention

22 of Serb prisoners and that in fact they were even the ones mistreating

23 them.

24 And then if we looked at P475, and this relates to the people who

25 were held in the second location, the building. This is the list of

Page 16554

1 detainees which -- which Mr. Ivanovic gave evidence about. And you see

2 there: "Not knowing whether Nurija was the SUP commander."

3 And again, this is a list put together by someone who had been in

4 detention in the second location and who had come across Nurija and was

5 wondering what his position was. And as I say, that is -- that was his

6 position. He was the head of the civilian police and a subordinate of

7 Becir Bogilovic. And that's dealt with at paragraph 540 of our closing

8 brief.

9 And then if we look at D987, and D866, that deals with the

10 prisoners from Karno. And these are Serb prisoners in respect of whom we

11 have this note from Nurija Jusufovic: "Avdic, I have here imprisoned the

12 Serb citizens from Karno, nine of them. They were brought in during last

13 night and they are now here. Please decide and tell us what to do with

14 these citizens."

15 So this is Nurija Jusufovic, civilian police chief, asking the

16 president of the War Presidency, a civilian body, what to do with detained

17 Serbs. And there's no reason in my submission why the Karno Serbs should

18 be any different from any of the other Serb detainees. This was -- these

19 were the people dealing with Serb detainees as the evidence shows.

20 And then if we see D871 again, you will see there, as I said,

21 Nurija Jusufovic on list and Zele and Selahudin Omerovic as members of the

22 civilian police.

23 Now, when we turn to the next general heading, sub-heading within

24 this -- this subject, uniforms, the detainees themselves testified that

25 they were held by either civilian police or people in civilian uniforms.

Page 16555

1 Radic said: "And this was, as far as you could tell, a civilian police

2 operation, wasn't it? You were in the civilian SUP, and it was the

3 civilian police who were questioning you.

4 "Answer: Yes."

5 And Mr. Ivanovic: "Once there, there were police officers who

6 were wearing blue uniforms, the kind they used to wear in the former

7 Yugoslavia." Those blue uniforms are civilian police uniforms.

8 And then Nikolic, and this was referring to the second location,

9 said in response to the question: " ... the guards... They were civilian

10 police, weren't they ...

11 Yes, yes."

12 The Prosecution tried to suggest in their response that maybe

13 Mr. Nikolic was confused by the question because I put to him a question,

14 as far as you could tell, this was the civilian police, if you saw that or

15 heard, and he said yes. Well, if there was any confusion the Prosecution

16 could have objected or they could have clarified the matter in

17 re-examination, and they didn't. So there's no disputing that answer

18 which he gave.

19 And then when we consider Zele, Elvir Djozic, in my submission it

20 becomes very interesting and very revealing. Ms. Richardson said that

21 Branko Mitrovic never said Zele was at the prison. Well, in fact,

22 Mr. Mitrovic said that Zele took him from the SUP to a flat. So he

23 obviously was at the SUP because he went in, took Branko Mitrovic and took

24 him out. And not only that, but if you read Branko Mitrovic's evidence

25 carefully he then took Mr. -- took Branko, as I'll call him, took him to

Page 16556

1 the second location as well, and he took him every day. So you have Zele,

2 civilian policeman, takes a Serb detainee out of the SUP and then he's

3 taking him to the second location every day. What does that tell you

4 about who is running the detention of Serb prisoners? Obviously the

5 civilian police. It's the best proof that the -- well, not the best proof

6 but it's one of many good proofs that detainees were held by the civilian

7 police, because otherwise how could a civilian policeman just drift into

8 the SUP, take a boy out who is a detainee and then take him to another

9 location and just come and go as he pleases with detainees if it's nothing

10 to do him?

11 And in my submission it's obvious that the detainees were held by

12 the civilian police, and if at least you don't consider it obvious then

13 certainly it raises a reasonable doubt that the military police were the

14 guards.

15 We'll see that slide now for Branko. And he's talking about where

16 he was taken to the flat in Kazani, and he describes there how he spent a

17 night there and there was a lady cook which also fits with Svetlana

18 Trifunovic's first statement, not her evidence but her first statement to

19 Behara: "I seem to remember that they referred to that person as Zele, as

20 counsel suggested a while ago. It's coming to me gradually. It does ring

21 a bell definitely."

22 And if -- if you give me a moment. Yes, D871 we've seen already.

23 Then if we look at the evidence of Mr. Guster about the exchange

24 of C007. Now, Ms. Richardson tried to suggest that Guster's evidence was

25 simply that Zele was just there during the exchange, he was just present

Page 16557

1 as were lots of other people. Not at all. He was actively involved

2 running the show one might even say. And you can see that from Guster's

3 testimony: "You told us earlier that you saw the man without an arm who

4 went in the direction of that house."

5 And that house as we know refers to the building where the Serb

6 detains were kept. So he was actually going in the direction and then he

7 shows up again. "This person without an arm, wearing civilian clothes,

8 who had come out of that house, came to us and told us that the APC had

9 left for Zvornik and not for Tuzla."

10 So, in other words, he's gone no the house, he's come out. In our

11 submission, he's taken out C007, and then he confirms that when they tried

12 to find out who he was: "The people who were close by addressed him by

13 the name of Zele and told us that Zele was a policeman."

14 So we know that that's Zele who is going in and out of the

15 building and essentially evacuating C007.

16 And then we see on the next slide he was shown a photograph,

17 Mr. Guster. "This is the man without the arm. At the time I saw him, he

18 did not have a uniform; he was wearing civilian clothes."

19 You will recall he had a uniform in the video because he'd just

20 lost his arm in action.

21 The witness: "That's the man who was with the UNPROFOR men on

22 that day."

23 So he was with the blue helmets. He wasn't simply standing

24 around. He was in the interlocutor for the UNPROFOR in achieving the

25 evacuation of C007.

Page 16558

1 And you'll recall that the other person who is very actively

2 involved in that day was Mr. Nekic who was member of the War Presidency.

3 And again this reinforces that it was a civilian operation, War

4 Presidency, civilian police, liaising with Morillon and evacuating C007.

5 Now, when we turn to Becir Bogilovic, he himself admitted that he

6 supervised the work of Nurija at the SUP. I think we have a slide on

7 that. Yes. And there it is. And this is -- we're talking about August,

8 September, October 1992, precisely when the detainees were in the SUP.

9 And he says -- he conceded that he overseed -- oversaw the work of Nurija

10 Jusufovic at the SUP building and on most occasions Nurija would come and

11 see him. So he's is supervising the work of Nurija, and Nurija was the

12 one who received Ivanovic and kicked him into his cell. So Becir

13 Bogilovic is directly linked and implicated in the detention of Serbs.

14 And Zele, he admitted, was a policeman of his. We can see that in

15 the next slide. " ... during your testimony, you mention a policeman of

16 yours and you said his number was Zele. Is this Elvir Djozic?

17 "Yes.

18 "At one point he was wounded and lost an arm. Is that the same

19 person?

20 "Yes, it is."

21 So Zele, who is taking Branko out of the SUP, who is helping with

22 the evacuation of C007, who is taking Branko to the second location, is a

23 policeman of Becir Bogilovic's. He's -- Becir Bogilovic's is implicated

24 through Nurija and through Zele in the detention of Serbs.

25 Now we get to the evidence of Mr. Bogilovic who said that the

Page 16559

1 civilian police did not detain prisoners. Now, Mr. Bogilovic had every

2 reason, you can see from this, he had every reason to distance himself

3 from the detention of Serbs and because otherwise he himself might be in

4 the dock for murder and cruel treatment. And he was warned repeatedly by

5 Your Honour for being evasive, for not telling the truth. He was not a

6 credible witness. And I submit the reason why he was so evasive is that

7 he was very concerned for his own skin. And I refer to what we said about

8 his credibility in paragraphs 658 to 660 of our closing brief.

9 And so this self-serving explanation of a non-credible witness in

10 my submission is of no probative value, and it is completely contradicted

11 by the evidence which we've been reviewing and which we'll continue to

12 review, and it's in complete contradiction with all the evidence that he

13 was the superior of Mirzet Halilovic, because if Mirzet Halilovic is in

14 charge of Serb detainees, then obviously Becir was too as his superior.

15 And let's look at what Becir Bogilovic said when he was asked

16 about this, and it's T6249. And I submit you can see the evasiveness in

17 his very answer. Question: "Mr. Bogilovic, when you went to the MUP or

18 SUP building in the month of September or October, did you ever see Serb

19 prisoners on the ground floor of the building?

20 "No. No, no. I would get in and I would pass through. I did not

21 go there very often, but I would always go straight upstairs, precisely

22 because of him.

23 "And when you say 'him,' are you referring to Mr. Halilovic?

24 "I mean Mr. Halilovic.

25 I mean, talk about wilful blindness. Here you have a man whose

Page 16560

1 subordinate is Mirzet Halilovic, and according to him he's running up the

2 stairs so he couldn't see what's going on on the ground floor. But in my

3 submission he'll in all likelihood run into Mirzet Halilovic upstairs

4 because as we've seen Mirzet was already interrogating people on the first

5 floor. I'm not saying on that day but in all probability he's going to

6 run into Mirzet Halilovic sooner or later, and he is no doubt going to run

7 into Mirzet Halilovic when Mirzet Halilovic would bring his reports to

8 him, and when he and Mirzet Halilovic would both report to Hajrudin

9 Avdic. So far from being able to avoid his subordinate, Mirzet

10 Halilovic. He would be see him all the time at the SUP and when -- when

11 receiving his reports.

12 Now, despite all of the above, Ms. Richardson said on Friday there

13 is absolutely no evidence, absolutely no evidence, she said, that the

14 civilian police were involved in the prison either during the first prison

15 scenario or during the second. There was no evidence that Hajrudin Avdic,

16 the president of the War Presidency was there, Bogilovic, or Jusufovic.

17 Well, Jusufovic I've already dealt with. Hajrudin Avdic is not a civilian

18 policeman; he's the president of the War Presidency. So I don't see why

19 they think it's necessary for him to be physically present manhandling

20 prisoners or otherwise at the SUP.

21 There is, however, abundant evidence of his involvement with the

22 prisons and prisoners as set out in our closing brief, and there's the

23 matter of refurbishing the second location. There's also, if we see P45.

24 Yes, P45. And there we have a document headed War Presidency, and it's

25 the list of prisoners and deceased persons being offered for exchange.

Page 16561

1 And it's all the victims in the indictment: Jakov Djoric, Branko Sekulic,

2 Dragan Lilic, et cetera.

3 So far from being absolutely no evidence, there's abundant

4 evidence that the War Presidency was involved with the detention of Serbs.

5 And this is a Prosecution exhibit.

6 It's interesting that the Prosecution now say there is absolutely

7 no evidence that Bogilovic was ever in the prison. In their final brief

8 they state, this is paragraph 399: "The prisoners recalled interactions

9 with Becir Bogilovic," according to the Prosecution.

10 At paragraph 405 of their closing brief it says: "In addition to

11 his interrogation by Mirzet Halilovic" -- this is referring to Zigic --

12 sorry, Radic, at which time his teeth were knocked out, "Slavoljub Zikic

13 was interrogated by the former police commander of Srebrenica who sat on

14 the first floor of the SUP building. While the former police commander

15 did not identify himself to Zikic, the Trial Chamber has heard evidence

16 from Becir Bogilovic that he was the former police commander in Srebrenica

17 and his officers were on the first floor of the Srebrenica SUP building

18 above the ground floor space used by the military police. Bogilovic made

19 it clear to Slavoljub Zikic that he knew Zikic from before and recognise

20 him."

21 So I simply don't understand what the Prosecution's case is as far

22 as Becir Bogilovic is concerned. Do they say that he was never in the

23 SUP, or do they say that he was there doing what he was doing? I

24 suppose --

25 JUDGE AGIUS: Yes, what's the problem Ms. Sellers.

Page 16562

1 MS. SELLERS: I don't want to mislead Defence counsel. The first

2 cite that he went to in terms of Bogilovic being in the prison, that was

3 among the errors the Prosecution made in its closing brief. And the

4 second one is just interpretation. We're not saying it was an error.

5 It's the interpretation the Defence has given it now. But I don't want to

6 mislead the Defence on that evidence

7 JUDGE AGIUS: I thank you so much, Ms. Sellers.

8 Yes, Mr. Jones. You may proceed.

9 MR. JONES: Yes. Well, I rather wish the Prosecution had pointed

10 that out earlier. We know it's a mistake, but it would have been proper

11 to correct that a long time ago, particularly as we pointed it out in our

12 response.

13 In any event, there's not just a reasonable doubt that the

14 military police detained prisoners. In fact, all the evidence, all the

15 credible evidence, and I leave aside the self-serving evidence of Becir

16 Bogilovic, points the other way.

17 Now, as far as the interview, the suspect interview is concerned,

18 Ms. Richardson also relies on the interview where the accused apparently

19 said Mirzet Halilovic was in charge of prisoners. Now, I've already made

20 a point that doesn't apply to the second location. Just concentrating on

21 the first location, I'll say this: I want to preface what I'll say about

22 this with the following though. You will recall how -- how withering

23 Mr. di Fazio was about the interview on -- on Friday, how disappointed he

24 was by the fact that it wasn't a confession. But then you'll recall how

25 many times the Prosecution then refer to the interview. And we counted.

Page 16563

1 They referred to the interview 82 times in their closing brief, 68 times

2 in their response, and then even after Mr. di Fazio said how the interview

3 really wasn't much use at all, they referred to his interview another five

4 times. And they're forever citing the interview, and in fact it

5 increasingly looks like the whole case is built on the interview.

6 It's strange, therefore, that they say it's a self-serving

7 interview, but they say that, of course, because they wish to deprive our

8 client of any credit for giving an interview.

9 And what's self-serving is how the Prosecution use his interview

10 while denying it's of any use to them.

11 But anyway, on the interview, there are three points I would make.

12 Firstly there is no indication of the time period. I mean, there never is

13 in the interview. You don't know what period the accused is talking about

14 when he made that statement. And our other points on the interview

15 remain. You don't know whether it's something someone told him years

16 later or whether it's actually the fruit of his own recollection.

17 But secondly, Your Honour Judge Brydensholt's question was about

18 the guards who were the guards. And even if Mirzet Halilovic were in

19 charge of the detainees, it doesn't actually say anything about who the

20 actual guards were who were actually taking care of the prisoners, because

21 you'll recall the evidence that people were being taken upstairs, so the

22 point remains that civilian police could be actually the ones who were

23 dealing with the detainees. And that's what we're interested in, whether

24 they were the ones mistreating the detainees or allowing others to

25 mistreat them. It's their affiliation which is important. And whether

Page 16564

1 Mirzet Halilovic was in charge or not doesn't say anything about who were

2 the actual guards. That remains an open question.

3 You'll recall all the evidence of how the military police was

4 within the civilian police. There's abundant evidence on that, and it's

5 set out in our brief, and of how Mirzet Halilovic reported to be Becir

6 Bogilovic. So if Mirzet Halilovic was in charge of prisoners, it doesn't

7 provide evidence in relation to the affiliation of the guards coming and

8 going.

9 And the proof of that, if that seems at all controversial, is that

10 if it did, let's assume that Mirzet Halilovic being in charge of the

11 prisoners means that any guards, the military police, well, that would

12 lead you to assume, wouldn't it, that Zele must be military police. That

13 would lead you to assume that Nurija is military police. But those

14 assumptions would both be wrong and that proves that in fact that's no

15 answer to the question of who the guards were.

16 The Prosecution cited paragraph 114 of Blaskic on uniforms and

17 their affiliations of persons. I don't think that will assist Your

18 Honours at all that section. Firstly it's actually to do with victims,

19 that passage. But secondly one can envisage a scenario where there are

20 regular soldiers who have uniforms and then they take their uniforms off

21 and they're in other clothes when they commit some crime and they remain

22 liable as members of the unit. I think that's probably the gist of the

23 Prosecution's submission. But that doesn't help you at all to work out

24 someone who is in civilian clothes what his affiliation is. And they're

25 saying if he's military police, the fact that he's in civilian clothes

Page 16565

1 couldn't change that affiliation, but they haven't proved that he's

2 military police anyway, so it doesn't even get you anywhere.

3 Now that responds, I believe, to Your Honour Judge Brydensholt's

4 question. But, Your Honours, while I'm on the subject of the detention

5 charges there are a couple of points I have to clarify. On Friday

6 Ms. Richardson said: "Mr. Jones referred to Ilija Ivanovic's

7 identification of the accused in the reception room while he was

8 imprisoned in Srebrenica. And Mr. Jones stated that Ratko Nikolic did not

9 state that he saw Naser Oric, and it would seem strange that if they were

10 both there together, then Ratko Nikolic would have mentioned this, she

11 says, and that's a valid point if it were true. And I'm glad

12 Ms. Richardson concedes that it would be a valid point. At least we agree

13 on something. Because it is true, and I'll show you why it's true in a

14 moment.

15 She said: "Mr. Ivanovic never at any time," she was completely

16 emphatic on this, "never at any time contrary to the Defence stated that

17 Ratko Nikolic was present." It's a pity she was so emphatic because it is

18 in fact completely true. Nikolic was in the room with Ivanovic. And to

19 see that it's true all you have to do is take our closing brief and go to

20 paragraph 330 where we made that point. It's not difficult. And there we

21 said Ivanovic testified that on one occasion he was taken with Nikolic and

22 Pejic to a reception room in the building where there were five men. And

23 we very helpfully provided a footnote. And we didn't only put the

24 transcript reference, we actually quoted it. And it was my question:

25 "Just sticking with the meeting in the reception room, was it right that

Page 16566

1 Ratko Nikolic was there at the same time as you when you were brought into

2 see the five men?

3 Answer: Yes, that's correct. Rade Pejic and Ratko Nikolic were

4 there."

5 So it's absolutely crystal clear. It was plain for everyone to

6 see, including the Prosecution if they read the closing brief thoroughly.

7 The page that Ms. Richardson referred to is simply Ivanovic saying, "I was

8 taken from my cell and taken to a reception room." He didn't say, "No one

9 else was taken with me." And that was clarified later that he was there

10 with Nikolic.

11 So, as I say, I'm glad that it's conceded to be a valid point and

12 it has the great virtue of also being true.

13 And Nikolic's presence is key. It's absolutely key. Because he

14 had seen Naser Oric before being in the prison when he was in Kravica and

15 then he never saw him again. So if Naser Oric was there in the reception

16 room a few feet away from him when Ivanovic was there, Nikolic would have

17 said, yes, I did see Oric again in the reception room. Whereas in fact

18 what he did -- what in fact Nikolic said is - we can see the next slide -

19 "After your capture on the 12th of January, 1993, did the man that you

20 knew as Naser Oric, did you ever see him again?

21 "No.

22 "And you were exchanged on the 27th of February --

23 "Yes."

24 So he didn't see him between the 12th of January and the 27th of

25 February.

Page 16567

1 Now, that -- that in my submission is the final nail in the coffin

2 of any motion that Ivanovic saw Naser Oric in the reception room, even

3 without all the uncertainties expressed by Ivanovic about on that point.

4 And now Your Honours I move to my next global category of

5 submissions. It was made clear on Friday that our client is not being

6 held responsible for the acts of opportunistic visitors or for others.

7 JUDGE AGIUS: Mr. Jones, Judge Eser would like to put a question

8 to you.

9 JUDGE ESER: I just would like to ask you, because I'm not

10 acquainted with the term "opportunistic visitors." Now, is it a term of

11 art or was it an invention to express certain things? What is the

12 difference between opportunistic visitors and civilians or other

13 visitors? What is it about opportunistic about visitors?

14 MR. JONES: Yes. It is an expression which is used in the case

15 law. It's been invoked once or twice. And the notion of opportunistic

16 visitors, I think, is those of who see an opportunity to get in somewhere

17 where they don't belong, and they sneak in through a door or they break

18 in. In other words, they take advantage of an opportunity to enter

19 someone where they don't normally belong. Whereas if you spoke of

20 visitors, a visitor could be someone who actually is perfectly entitled to

21 be there. So it suggests the notion of people who shouldn't be there but

22 who manage to get in.

23 For the purposes of today's submissions, it might be easier if I

24 simply say others, because later some of the slides I just use others,

25 others being distinct from guards, and I'm happy just to use that term, or

Page 16568

1 third persons.

2 And, yes, so in our submission, these others, their acts are not

3 attributable to our client, and so we only have to deal with the guards

4 and what the guards did. And there's ample evidence that the guards were

5 not the ones who did beatings and did -- and committed murder.

6 And if we look quickly at the slides we have there, we have for

7 the SUP. It's paragraph 489 of our closing brief. The perpetrators of

8 beatings were not the guards at the SUP but people who came from

9 outside. And you can see Ivanovic. "I couldn't really say that it was

10 the guards who beat us because if they had beat us, they have probably

11 opened the door, whereas the people who did beat us would do it through

12 the bars."

13 And Ivanovic also said at T4181: "I did say clearly that they did

14 not come into the cell." The perpetrators.

15 Nikolic confirmed that the people who beat him were not the guards

16 but people who came from outside the prison. And he again made this point

17 that the beating was through the bars. And he also testified that on one

18 occasion, I think this might have been at the second location, but guards

19 even tried to prevent him being beaten.

20 Then when we turn to the second location, it's at paragraphs 490

21 to 493 of our closing brief and all the footnote references. But we see

22 there Nikolic at T2721: "As far as who you beat you, Mr. Nikolic, in the

23 prison, isn't right that it wasn't the guards who did it but people who

24 broke into the prison ... broke into the prison to, as you put it, see the

25 Chetniks. It was those people from outside who beat you.

Page 16569

1 "Yes.

2 And Ivanovic at T4042: "As I've already said, the beatings would

3 start after dusk, at 9.00 or 10.00 in the evening. When the soldiers

4 would return from the battlefield they would be driven in a truck, stop

5 between the court and the police station in the municipality building,

6 then they would say let's go and see the Chetniks, and they would beat us

7 in any way they could with whatever implements they had."

8 So these are not guards. These are people coming from outside.

9 And what's also very interesting is his evidence that this happened at

10 night, after dusk. And you'll recall that Radic also said: "During the

11 day we were left alone, no one touched us, it was at night that we were

12 beaten."

13 And I've pointed out before the evidential void in knowing how

14 people got into the SUP and the building. But imagine even that simply

15 the guards weren't there in the evening. It's not -- it's not an

16 incredible suggestion. That perhaps they simply went home and that's when

17 these people broke in and beat them. It's obviously -- it's not -- not

18 great behaviour on their part and not terribly responsible to just leave

19 detainees in the evenings. But at the same time, if we're talking about

20 whether the guards had a murderous mens rea, whether they intended that

21 the detainees would be cruelly treated and murdered, then going home at

22 the end of the shift and -- and not taking enough care about the detainees

23 does not reach that level. But as I said, it's all speculation because we

24 simply don't know how people got into the two locations.

25 C007 was mostly beaten by an unidentified Muslim in civilian

Page 16570

1 clothes who had just been released from custody from the Serbs in Bratunac

2 and who in our submission is -- is -- was certainly not identified as a

3 guard.

4 Mico was actually killed by some young man - at one point he even

5 conceded he might have been 16 years old - who again somehow got into the

6 prison but was not a guard.

7 And so since the Prosecution has made clear that they don't hold

8 the accused responsible for acts of these others, in our submission that

9 should be an end of it. He's entitled to an acquittal on that basis and

10 on that basis alone.

11 Now, as we know, the Prosecution has, I would say, a new theory

12 now, a new theory, completely new in fact, which only emerged when they

13 responded to our closing brief. And I want -- I think this -- this is a

14 matter which should be crystal clear, and I want to make sure it's crystal

15 clear, and so rather than having the triangle chart, I've got two charts

16 now, and the first will show the Prosecution's case as set out in the

17 indictment, and you can see it on the chart. And it's what I'm calling

18 vertical liability only. It's Article 7(3) liability, superior,

19 subordinate, and the subordinates were the guards and the others. That

20 was their case. That all the people who were involved in murdering or

21 beating the detainees were subordinates of the accused. That's the case

22 we had to meet. And we knew that they couldn't prove that all these

23 people were subordinates of the accused. And that was their case and so

24 they changed their case once that emerged, and so we now have this new

25 version. We can see on the next slide.

Page 16571

1 I'm calling that the Prosecution's case after the close of the

2 trial, as set out in its response to the Defence closing brief. And so

3 this is the L. It's a vertical responsibility to which has now been added

4 a horizontal responsibility, an extra level of aiding and abetting between

5 the subordinates and the others. And as I said on Thursday, I believe it

6 was, yes, it's ultra vires the Statute, that argument. It wasn't pleaded

7 and it hasn't been proved. And I spoke at great length on that subject,

8 and I don't plan to revisit all of those submissions, but I do plan to

9 revisit the submission that the indictment does not set out that L case.

10 The indictment sets out the vertical case only, and I want to emphasise

11 that.

12 Your Honour Judge Eser asked last week or made the point that our

13 client was not being held responsible for the acts of these others

14 directly on this dotted line which would be the hypotenuse of the

15 triangle. But that we were always clear on because of course under

16 Article 7(3) you can't hold the accused directly responsible for

17 non-subordinates. That's just simply the law that's no comfort to us

18 whatsoever to be told that. What we're complaining of is precisely

19 this L. That's what ultra vires, not pleaded and not proved.

20 Now, I'd like to come at it this way by starting with some -- one

21 extract of case law. It's in the Kupreskic appeals judgement, and it's

22 cited, regularly cited on this point. That the Appeals Chamber said, and

23 it's 23rd of October, 2001: "The Appeals Chamber emphasizes that the

24 Prosecution is expected to know its case before it goes to trial. It is

25 not acceptable for the Prosecution to omit the material aspects of its

Page 16572

1 main allegations in the indictment with the aim of moulding the case

2 against the accused in the course of the trial depending on how the

3 evidence unfolds."

4 Now the Prosecution have been repeatedly stating, Oh, no, our case

5 is based on aiding and abetting. That's perfectly clear. If it were

6 clear, the indictment would have said under the detention charges we're

7 running aiding and abetting. They would use the words "aiding and

8 abetting," they would invoke Article 7(1), we would know that was their

9 case.

10 JUDGE AGIUS: Yes, Ms. Sellers.

11 MS. SELLERS: Excuse me, Your Honour, Defence counsel.

12 Just two issues. I don't know whether this is law that Defence

13 counsel would wish to pass up to us prior to using today. That's one

14 issue.

15 And the other is just to make sure that the Trial Chamber again

16 isn't misled in terms of the 7(1) argument that I think we tried to

17 clarify with the Defence last week.

18 JUDGE AGIUS: Yes, Mr. Jones.

19 MR. JONES: Well, Your Honour, two points really.

20 The first -- there's maybe even a slight point of order in that

21 this is our rejoinder to their rebuttal. The Prosecution is not going to

22 be responding, as I understand, to our submissions.

23 JUDGE AGIUS: No, of course not, no.

24 MR. JONES: That's a different submission from last Friday when we

25 were going to have to respond off the cuff and we wanted to have authority

Page 16573

1 so we could do so, and the Prosecution isn't going to be responding, so

2 they're in a different situation altogether.

3 JUDGE AGIUS: Plus we are dealing with -- with a principle that

4 that governs all criminal proceedings everywhere, that this is why you

5 have an indictment in the first place. I mean, you're supposed to know

6 exactly what your case -- case rests upon. And in our case before an

7 indictment is confirmed you have this supporting documents in any case,

8 and that's what basically the whole case is supposed to be based upon.

9 And then after that of course it is built up. It's beefed up, and in

10 these cases, these type of cases, information is arriving as a matter of

11 fact even throughout the course of a case.

12 MR. JONES: Yes. And if I may just respond to that, it's true

13 that facts emerge and every fact under the sun emerges during the trial,

14 but the fact -- given that facts emerge, that doesn't mean that we at that

15 moment become -- that we're then on notice that this is become part of the

16 Prosecution's case, and that's why there's the distinction the indictment

17 has to set out the case.

18 So I turn to the indictment and paragraph 22 of the indictment.

19 We can see that on our -- on the monitor.

20 So this is what they were saying the Prosecution,

21 paragraph 22: "Between 24 September 1992 and 20 March 1993, members of

22 the military police under the command and control of Naser Oric detained

23 several Serb individuals in the Srebrenica police station and in the

24 building behind the Srebrenica municipal building."

25 So that's stage 1, the military police are the guards. We've

Page 16574

1 addressed that. Then paragraph 23 deals with perpetrators. And I won't

2 read the whole thing. You can see it there. But the key -- key passage

3 is the first: "These detainees were subjected to physical abuse, serious

4 suffering and serious injury to body and health, and inhumane treatment by

5 the guards and/or by others with the support of the guards."

6 So there we have who the perpetrators are. Guards and these

7 others.

8 And then we go to paragraph 26: "Naser Oric," from those dates,

9 "knew or had reason to know that his subordinates were about to plan,

10 prepare, or execute the imprisonment, killing, and/or cruel treatment of

11 Serbs detained at the" -- the two locations.

12 So that's -- and then that leads into the actual charges. So

13 that's absolutely clear. The subordinates are the guards and the others.

14 The guards and the others who have been spoken of in paragraph 23 are then

15 subsumed under subordinates in paragraph 26. And that's why it's a

16 vertical responsibility. Their case was that Naser Oric was the superior

17 of the guards and the others who mistreated detainees. And that's our

18 understanding of what their case was and it's the case which we addressed.

19 Now if there are any doubts, look at paragraph 39 of the

20 Prosecution's response to our motion on the form of the indictment for

21 June 2003, and this is the Prosecution speaking: "The Defence objection

22 under this heading is misconceived." Is one of our objections. "The

23 Prosecution does not allege criminal liability of the accused merely on

24 the ground that his subordinates were about to plan and/or prepare. The

25 accused's criminal responsibility alleged under paragraph 26," that's the

Page 16575

1 paragraph we just saw, "is his failure to prevent the commission of

2 alleged crimes by his subordinates and/or his failure to punish such

3 subordinates who committed crimes alleged in the indictment."

4 And so there it is clear beyond a shadow of a doubt that the

5 Prosecution's case was based on subordinates of the accused committing

6 crimes, that the guards and the others beat and killed detainees, and they

7 are subordinates of the accused.

8 That was their case.

9 Now, we know the Prosecution, and it emerged during the course of

10 the trial the Prosecution couldn't prove that. They can't prove that the

11 young man who killed Mico, allegedly killed Mico was a subordinate. They

12 can't prove those people who jumped out a truck and said, Let's get the

13 Chetniks, they can't prove that their Oric's subordinates. And Your

14 Honours knew that, too, because you pointed out at the close of the

15 Prosecution case that these others were -- had never been identified.

16 We have Kemo, and I want to just have one digression on Kemo who

17 might otherwise be considered a special case. I want Your Honours to bear

18 in mind that only Radic referred to Kemo from Pale. Zikic referred to a

19 Beli who we also thought was from Pale. Beli from Pale was a guard as

20 someone he referred to. And one thing also which will be striking for

21 Your Honours is that Radic talked about Kemo. Nedret Mujkanovic talked

22 about Kemo. Hakija Meholjic talked about Kemo. Were we ever shown a

23 photograph of Kemo so that you could at least have some comfort level in

24 knowing that this was the same Kemo, or actually saying to Mr. Radic, "Is

25 this the Kemo you saw?" And then showing it to Hakija and to

Page 16576

1 Dr. Mujkanovic and then confirming, so at least you would know that they

2 were on the same wavelength. Whereas what might have happened is you show

3 a photograph to one of them and the other says, "No, no that's not the man

4 at all." That was never done, and you think for murder as a war crime

5 that's something which would have been entitled to see.

6 Kemal is a very common name in that area, and we have all the

7 confusion about Ahmetovic and Mehmetovic. I also just want to mention on

8 the subject that these names, Your Honours may or may not know, but Beli

9 means a lot, a light man, light -- white or light man; Mrki means dark,

10 dark man. These are very vague nicknames people have who been have

11 identified by, and certainly with Kemo we would certainly not concede for

12 a moment that it's clear that he was the person who killed Kukic. There's

13 a reasonable doubt that the Kemal mentioned there is Kemo Mehmetovic.

14 But in any event, we also say that the evidence does not prove at

15 all that Kemo was a subordinate of Oric.

16 So the case, the Prosecution's case falls flat. They don't have

17 any subordinate of Oric who actually beat or killed a detainee. So now

18 they change and they come up with this new theory. Well, Your Honours, we

19 made all our decisions about what case to present, what witnesses to call,

20 what questions to ask based on the idea or based on the Prosecution's case

21 that the others were subordinates of Naser Oric. And if we had notice of

22 a different case, we could have called witnesses, for example, to rebut

23 the aiding and abetting theory. And you'll even note, Your Honour, I

24 don't want to get into specifics, but in our 65 ter witness summaries we

25 had a Medsid Djozic [phoen], for example, and I'm not going to say what we

Page 16577

1 propose to call him for, but I'll just say this. That we certainly could

2 have called witnesses who could have come here and who could have said

3 actually the guards were not aiding and abetting at all. They were trying

4 to stop or -- there are all sorts of approaches we would have taken if it

5 ever -- if we ever dreamt that the Prosecution was going to say the guards

6 aided and abetted others to commit crimes and that's where your client's

7 responsibility derives from. We would have -- the whole tenor of our case

8 would have been different.

9 So, Your Honours, if this new theory is adopted at the eleventh

10 hour, our client would be tried and convicted on a theory which he never

11 had notice of.

12 The pre-trial brief also made it clear that the Prosecution

13 alleged that it was subordinates of the accused themselves who physically

14 murdered and cruelly treated detainees. And I submit that's actually

15 crystal clear from the pre-trial brief too.

16 Now, paragraph 51 the Prosecution set out the elements that they

17 would have to prove for murder. And you'll note that they set out the

18 mens rea, you see the elements there A, B and C. But C, the accused or a

19 subordinate of the accused must have intended to kill or inflict serious

20 injury and reckless disregard of human life.

21 Now that's the mens rea of a physical perpetrator, the person who

22 was actually doing it. The mens rea for aiding and abetting is quite

23 different and you'll know it's quite different because in paragraph 97 of

24 the pre-trial brief the Prosecution set out the mens rea for aiding and

25 abetting which they were going to rely on for the wanton destruction

Page 16578

1 charges.

2 Now if they thought at all at that stage that they were going to

3 be using aiding and abetting for the detention charges, they would have

4 set out the mens rea for aiding and abetting, but they didn't because

5 their case was that the subordinates of the accused killed, physically

6 killed and inflicted serious injury, not that they aided and abetted

7 someone else to do so.

8 Now look at paragraph 154 of the pre-trial brief. "Naser Oric

9 failed to issue orders as a reasonable -- as a reasonable measure to

10 prevent troops under his command from destroying and plundering." That's

11 the wanton destruction. But then at the bottom: "Naser Oric also failed

12 to issue orders to prevent his subordinates from murdering or cruelly

13 treating Serbian detainees," held in those two locations. So, again, it's

14 clear there, the idea is that his subordinates were murdering or cruelly

15 treating, persons under his effective control, not people jumping out of

16 lorries and mistreating the detainees. It's a completely different case

17 and they're doing a U-turn after all the evidence is in.

18 Now, Your Honours, I hope that that's sufficiently clear, our

19 position on that. I can certainly address it in more detail, if need be,

20 but those are -- those are -- that's what I would say on that subject.

21 JUDGE AGIUS: I think it's clear enough for the three of us.

22 MR. JONES: Because I'll move to a new subject then, Your Honour,

23 which is addressing some of the points in rebuttal, so a completely new

24 area.

25 So levee en masse, I just have a couple of rebuttal points.

Page 16579

1 In discussing levee, the Prosecution returned to this idea that we

2 had stipulated that the accused was appointed to the subregion and because

3 we stipulated to a fact about an appointment that nullifies the idea of a

4 levee en masse. And, Your Honours, I don't know how many times we have to

5 re-address arguments which we've already addressed, but it's -- the

6 address is set out in our -- sorry, the response is set out in the

7 response to the Prosecution motion to recall -- to call rebuttal

8 evidence. You may recall that this same matter arose 31 January 2006, and

9 it's paragraphs 28 to 29. "The Prosecution claims that it is a stipulated

10 fact that Naser Oric was the commander of the subregion and that the

11 Defence position has evolved away from this to Oric being relegated to a

12 local commander. This entirely misrepresents the true position. The

13 Defence denied all proposed stipulated facts to the effect that Naser Oric

14 was a commander of either TO Srebrenica or TO Potocari. The Defence

15 accepted only that Naser Oric was appointed the commander of the joint

16 armed forces of the subregion Srebrenica in early November 1992. But then

17 immediately denied the post stipulation following a link to it, namely

18 that Naser Oric's command encompassed the geographical regions of several

19 municipalities, namely Srebrenica, Bratunac, Vlasenica and Zvornik in

20 Eastern Bosnia." In other words, the Defence accepted an appointment on

21 paper only but denied that it ever took any effect as command encompassing

22 any area whatsoever.

23 And this was confirmed under the subregion existed only ever on

24 paper by Dr. Mujkanovic and we had the slide there. "You told us the

25 subregion never properly came into operation; would that be right.

Page 16580

1 "That's right.

2 "So is it right there wasn't ever any unified command for the

3 enclaves of Kamenica, Cerska, Konjevic Polje, and Srebrenica?

4 "As far as I know, no. There never was one."

5 And later on he said: "It," the subregion concept, "didn't last

6 long because very soon thereafter Konjevic Polje as did Cerska. So the

7 whole concept lost practical significance.

8 And it's a Prosecution witness and that was confirmed by numerous

9 Defence witnesses.

10 Now, Your Honours, the question of levee en masse is one of

11 effective control. It's not question of whether someone was appointed on

12 paper to a body which was never able to function. And I know Your Honours

13 are going to decide whether there was a levee based on the facts, not on

14 this stipulated fact and how it should be interpreted.

15 In fact Your Honours, when Your Honours rendered your decision on

16 rebuttal, I think you characterised our position as being the

17 non-existence of the Muslim army and the corresponding appointment without

18 substance of the accused as commander. I would put it slightly

19 differently in that we -- we certainly acknowledge that there were groups

20 fighting and fierce fighting in the region. We're not saying there was

21 non-existence of any fighters, and I wouldn't say an appointment without

22 substance. The notion is not that someone for no apparent reason decided

23 to make an appointment. They were trying. They were certainly trying to

24 create something as is only natural, but we just said that they didn't --

25 it didn't lead to anything.

Page 16581

1 I move to the mens rea of command responsibility. Ms. Sellers

2 said that our approach is not consistent with Tribunal jurisprudence in

3 mentioning this malicious intent notion. But Akayesu is a decision of the

4 Rwanda Tribunal, and there's a common Appeals Chamber. It's often said

5 that the two Tribunals are identical twins linked at the head and the feet

6 but not in the middle because they have a common Appeals Chamber and used

7 to have a common Prosecutor. ICTR law is just as persuasive certainly as

8 ICTY law. It may not be binding, but in fact the earlier decisions of

9 this Tribunal were not binding either before the Aleksovski Appeals

10 Chamber introduced the notion of precedence.

11 But more fundamentally Ms. Sellers is trying to drive a wedge

12 between customary international law and Tribunal law, and, yes, it's been

13 said on I don't know on how many occasions the Tribunal must apply

14 customary international law. Security Council had no power to create new

15 law. And on this point it's actually set out bet in the

16 Secretary-General's report on the ICTY Statute. And you have the

17 reference there. "The International Tribunal should apply rules of

18 international humanitarian law which are beyond any doubt part of

19 customary law so that the problem of adherence of some but not all states

20 to specific conventions does not arise."

21 And in a decision in Delalic et al., 15 October 1996 of the

22 Appeals Chamber or bench of the Appeals Chamber it said: "The Tribunal's

23 Statute does not create new offences but rather serves to give the

24 Tribunal jurisdiction over offences which are already part of customary

25 law."

Page 16582

1 So customary international law would always be relevant -- sorry,

2 I realise I'm going too fast. I'll slow down.

3 The commentary to the Additional Protocols will remain relevant

4 the von Leeb case, high command case. All these sources are sources which

5 can be applied by the Tribunal, and so there's no distinction --

6 fortunately no distinction between Tribunal law and customary

7 international law.

8 Ms. Sellers invoked policy arguments based on international

9 humanitarian law, and this was in relation to aiding and abetting. You

10 know, I don't know who formulated this alleged policy or where it's

11 written or where we consult it, where we can consult it, and we can debate

12 all day what would be a good policy but the policy is not law. Your

13 Honours have to apply the law not some imagined policy. And states make

14 law and they make customary international law, and you have to show state

15 practice and opinio juris. You can't just skip over what is in fact a

16 very -- what needs to be a very scholarly, careful exercise in looking at

17 sources of law to just say, well, it's just good policy to extend the law

18 to cover a new form of liability. It simply doesn't work that way. And

19 when we talk about policy, we know what the attitude, let's say, of the US

20 is to its troops not preventing pillage in Iraq. "Stuff happens," that's

21 what Donald Rumsfeld said. We know that states don't hold themselves up

22 to an angelic standard, although allegedly that would fit with the policy

23 of the international humanitarian law.

24 And, Your Honours, I say that there's no good policy to be served

25 by a Balkanisation of the law, if I can put it that way, where we apply

Page 16583

1 one law to Bosnia at this Tribunal but a law which we would never dream of

2 applying to our own armies or our own countries, which Germany, the UK,

3 the US, France, Italy, would never accept for their own commanders.

4 So in my submission, that's a real danger that that will invent a

5 policy version of the law for Bosnia which will -- which will only be

6 applicable there and nowhere else. So if you hear the Prosecution invoke

7 policy, I'd say reach for the statute book and the laws of armed conflict

8 because it means that they know they don't have the law on their side.

9 It's not good policy, no good policy is severed to be set by

10 saying, well, if wrongs were done, we have to convict the accused of

11 something. Our client is not a scapegoat for any wrongs done, and it's

12 not as if a criminal trial is a failure if it results in a complete

13 acquittal, although some seem to think so.

14 Now, on aiding and abetting burning, the Prosecution's arguments

15 have also now undergone a complete 180-degree shift. The Prosecution's

16 theory in the indictment, in the pre-trial brief, and during the trial was

17 that the accused, he personally encouraged burning by his presence, his

18 presence, not presence of soldiers, his presence, in Fakovici, Bjelovac,

19 Kravica and Jezestica on 7 January 1993. They didn't charge aiding and

20 abetting for Ratkovici or for Jezestica in August 1992. But now, due to

21 the invention of the Prosecution's L after the trial, we now find that our

22 client is also being charged with responsibility for burning in Ratkovici

23 and Jezestica on the basis of aiding and abetting, and much more

24 fundamentally that he's now charged with his subordinates aiding and

25 abetting civilians to commit burning. Now, that was never a part of their

Page 16584

1 case. And in -- if it is permitted to be part of their case, then the

2 goal-posts would have shifted 180 degrees, and we'd have to make

3 submissions on a case we never had to deal with at trial

4 At trial we had to deal with two issues for burning: Under 7(1),

5 did our client aid and abet burning, and there was no evidence of that,

6 and Dr. Mujkanovic on the contrary said that our client was fiercely

7 opposed to burning; and then under 7(3) did our client subordinates, i.e.,

8 soldiers as they call it in their post-trial brief, under his effective

9 control, did they burn? And there's been no evidence of that.

10 So now in the week of closing arguments, despite the fact that

11 even the Prosecution final brief only refers to soldiers burning, we're

12 here discussing whether the accused could be held responsible for

13 civilians burning.

14 Now, I'll ask you to look at the closing brief. Paragraph 499,

15 soldiers under the command of the accused unlawfully burnt houses.

16 Paragraph 504, Ratkovici, soldiers under the command of the

17 accused unlawfully burned houses. Paragraph 550, soldiers burned --

18 sorry, 570. Jezestica, paragraph 577, soldiers under the command of the

19 accused unlawfully burned. Paragraph 614, soldiers burned. Paragraph 644

20 in the summary of conclusions soldiers burned. Paragraph 647, soldiers

21 engaged in the systematic widespread and unlawful burning.

22 We turn to Fakovici. Paragraph 652, soldiers under the command of

23 the accused unlawfully burned houses. Paragraph 698, soldiers burned.

24 Paragraph 738, soldiers burned.

25 Then we turn to Bjelovac. Paragraph 742, units under the command

Page 16585

1 and control of Naser Oric unlawfully destroyed Bosnian Serb property.

2 And, again, paragraph 744, soldiers burned. Paragraph 852, soldiers

3 burned.

4 And then Kravica. Paragraph 858, units under the command and

5 control of Naser Oric unlawfully destroyed Bosnian Serb property.

6 Paragraph 860, still on Kravica, soldiers under the command of accused

7 unlawfully burned houses and dwellings on a large scale during the course

8 of the attack. Paragraph 902, soldiers burned.

9 There's soldiers everywhere. Can anyone be in any doubt as to

10 what the Prosecution's case was? I mean, only they seem to be in doubt as

11 to what their case was. There's nothing on civilians burning there.

12 And that was in the indictment too. Let's look at paragraph 27.

13 In the course of such operations, Muslim armed units engaged in

14 operations. In the course of such operations, Muslim armed units in the

15 municipalities of Bratunac, Srebrenica and Skelani burnt and otherwise

16 destroyed a minimum of 50 predominantly Serb villages and hamlets.

17 And then we -- Muslim armed units, not civilians.

18 We go to paragraph 37. Naser Oric -- no. Paragraph 37 stated

19 Naser Oric from about June 1992 to August 1995 knew or had reason to know

20 that his subordinates were about to commit such wanton destruction and

21 plunder or had done so, et cetera, and failed to prevent or punish.

22 So it's -- it's entirely obvious that their case, until we filed

23 our final brief on the 17th of March, 2006, was that soldiers burned. But

24 then we pointed out the fatal flaw in this reasoning that there were

25 thousands of civilians in each action and that there was no evidence that

Page 16586

1 a soldier from Skenderovici TO or from Potocari TO burnt a single house.

2 And we said, and it's paragraph 4 of our response: "A remarkable feature

3 of the Prosecution's presentation of the facts regarding wanton

4 destruction is its total omission of any mention of the thousands of

5 civilians," and it's tobari, "who went into every action. The Prosecution

6 does not mention the existence of this phenomenon as they know that it is

7 fatal to their case. Just how fatal it is may be demonstrated in a few

8 sentences."

9 And the next paragraph we demonstrated, we say convincingly, why

10 that argument was untenable. So the Prosecution then says, okay, well,

11 then let's say that civilians burned and the soldiers aided and abetted.

12 Even that's not in the indictment. It's not in the pre-trial brief or the

13 final brief. Civilians burned and fighters aided and abetted. Well,

14 maybe fighters also burned. Or maybe fighters and civilians. We don't

15 know, we don't care. Whatever happened, just convict the accused for it.

16 That's essentially what they're saying.

17 Now, if that's what passes for proving your case beyond a

18 reasonable doubt, international criminal law is in dire straits. It's in

19 danger of losing all credibility. Your Honours are well aware of the

20 fundamental right of the accused to know what the Prosecution's case is

21 from the start of the trial and not to learn what their case is weeks

22 after the last witness testified

23 So that's all I want to say about aiding and abetting, burning. I

24 won't even address the arguments on the merits about whether fighters

25 aided and abetted civilians by their presence. It's not a case we had

Page 16587

1 notice of. It's not a case we're called on to answer, and there is in any

2 event no evidence of it.

3 On wanton destruction, I'll just make three points. Ms. Sellers

4 said that we've conflated military necessity a necessity. Well, I don't

5 think we have, and if Your Honours are in any confusion as to the analysis

6 in our closing speech, then I'm happy, more than happy to answer any

7 questions on that. We set out precisely what the approach should be and

8 we haven't conflated or confused anything.

9 Ms. Sellers seems to wish to put the burden of proof on us

10 regarding military necessity, but the law is absolutely clear the burden

11 is on the Prosecution to show that any destruction was not justified by

12 military necessity. That's their burden, not on us to prove that any

13 damage was justified militarily.

14 And now thirdly, I just say you get a sense of the Prosecution's

15 unrealistic approach to international humanitarian law when you see this.

16 Ms. Sellers said on Friday: "Now, it's possible that the rocket launcher

17 in a town is a legitimate military object." You'll note that it's only

18 possible, only possibly okay to go and disable the enemy's rocket

19 launcher. So there's even a possibility you might have to write the Serbs

20 a cheque for their rocket launcher after you've destroyed it or stolen

21 it. Even though it's shooting at you and killing you. It's still not

22 clear in international humanitarian law whether you have a right to go and

23 get that rocket launcher.

24 Now, you can see if that's their approach, you can see why they

25 think any damage must be wanton. But the Prosecution's approach would

Page 16588

1 outlaw pretty much all warfare. I mean, you couldn't use heavy artillery

2 because you might hit something other than a legitimate military object;

3 you couldn't drop bombs from the air. They would all be outlawed because

4 you might hit something other than something which is purely a military

5 objective. And this is what I mean about the danger that IHR will lose

6 all credibility because of this armchair theorising which has absolutely

7 no bearing on military reality.

8 And if you speak to military lawyers, they'll certainly tell you,

9 and people have to fight wars, that international humanitarian law is a

10 lot more realistic about what happens in war than the Prosecution. And

11 Ms. Sellers said: "The Defence notion is much more generalised that towns

12 and areas and villages offers a definite military advantage."

13 Well, first that is the approach endorsed by international

14 humanitarian law, and we addressed this in paragraph 35 of our closing

15 brief. According to the UK Manual on the Law on Armed Conflict: "An area

16 of land can, thus be a military objective, areas of land such as hills,

17 defiles and bridgeheads" can be military objectives.

18 And under military necessity it even says this: Private homes and

19 churches even may be destroyed if necessary for military operations."

20 Those the hostages case.

21 And in my submission, Your Honours, it's obvious that if a

22 civilian object is used for a military purpose, it loses its civilian

23 status. If a school becomes a barracks and there are soldiers in there

24 with their weapons, obviously the school is a legitimate military object.

25 If trenches go through someone's house, that house becomes a legitimate

Page 16589

1 military objective. If a hill has an artillery piece, then capturing that

2 hill and destroying the artillery piece and maybe even destroying the

3 house which it's hiding behind might be a legitimate military objective.

4 One has to be pragmatic and realistic about what's essentially war and

5 people fighting for their lives. And in the history of warfare, it's

6 obvious armies take whole areas, towns, villages, hills, beachheads

7 because they offer military objective. They don't tiptoe around the

8 enemy. You can't imagine the Normandy landing and the troops arriving and

9 tiptoeing around the Germans and making sure that they didn't displace a

10 flower pot or something which wasn't a legitimate military objective.

11 That's not warfare. Warfare is quite other.

12 So if our approach seems generalised, it's for at least three

13 reasons: First, international humanitarian law justifies it; second, the

14 Prosecution's approach has been generalised, talking about areas being

15 damaged without any detailed inventory of what was destroyed, when it was

16 destroyed, how it was destroyed, why it was destroyed and by whom.

17 And so as I say, and as we said in our 65 ter conference, for us to have

18 to be specific when the Prosecution was general is deeply unfair. If the

19 Prosecution just say, well, generally things are destroyed. Now you,

20 Defence, you go in and do a detailed inventory of what was a legitimate

21 military objective. That's not fair.

22 The break is normally at 10.45 is it --

23 JUDGE AGIUS: No, 10.30.

24 MR. JONES: My apologies.

25 JUDGE AGIUS: 10.30.

Page 16590

1 MR. JONES: Certainly I'll break at this point, if it's

2 convenient. Thank you.

3 JUDGE AGIUS: We will have a 30-minute break.

4 --- Recess taken at 10.26 a.m.

5 --- On resuming at 11.06 a.m.

6 JUDGE AGIUS: Yes, Mr. Jones.

7 MR. JONES: Yes. Thank you, Your Honour.

8 Now, before the break, we were dealing with this question of a

9 generalised approach to the question of wanton destruction, and I

10 mentioned a couple of reasons why our approach might seem generalised,

11 namely that international humanitarian law so provides, and also that the

12 Prosecution's approach has not been a specific one. But more importantly,

13 perhaps, the Serbs' approach was generalised, if one can put it that way.

14 They billeted soldiers in houses in the villages surrounding Srebrenica.

15 They kept their weapons and grenades in houses, in barns, in schools, and

16 in warehouses. They put heavy artillery in the centre of villages, and

17 then they counter-attacked with heavy artillery, they did so

18 indiscriminately, and that's all a matter of evidence.

19 Now, what in fact happened in early 1992 is that many of these

20 Serb villages evacuated the civilian population or a substantial part of

21 it, and we saw that, for example, in P448 in which Jovan Nikolic

22 stated: "And the people of this village," and he's referring to

23 Kravica, "being aware of the beasts that surrounded us relocated their

24 weak to Serbia, and we stayed to defend the village the best we could."

25 And you'll find similar evidence for Bjelovac and Fakovici and

Page 16591

1 some of the other locations.

2 Now, the Serbs used a sledgehammer to crack a nut, if one can put

3 it that way, and the Prosecution in their presentation of the case has

4 used a sledgehammer to crack a nut. Yet we are expected, it seems, to use

5 tweezers to sift through the ruins and to show who did what and why it was

6 done, and in my submission that's not the correct approach.

7 Now, to get a sense of the approach, the tactics of the Serbs in

8 relation to Srebrenica, in relation to these villages that we've looked

9 at, I would ask you to look at D928, and we see there -- and this is an

10 order of the Serbs: "Consolidate the Fakovici battalion as soon as

11 possible and give it the task to penetrate as deep as possible into the

12 area of Srebrenica using the territory of Serbian villages and attack

13 Srebrenica."

14 And that's from the command post in Bratunac.

15 I'll ask you to pay careful attention to those words "using the

16 territory of Serbian villages to launch attacks on Srebrenica." That was

17 the tactic of the Bosnian Serb army, to attack Srebrenica from these very

18 areas surrounding Srebrenica. And so that will give you a sense of the

19 military necessity involved in the actions which we've seen in the

20 indictment. They used the whole territory to attack. They evacuated

21 women and children, and they made the surrounding villages essentially

22 militarised areas.

23 And during attacks, you've seen during each and every attack the

24 Serbs were shoot from the houses on the attackers. And we have proof of

25 that in, as I say, every action, and we can review just a sample of that

Page 16592

1 evidence, firstly with Ratkovici. This is the evidence of Omer Ramic.

2 First of all, he said: "We found a mortar in a barn. The other one,

3 another one was in a village."

4 So again when you hear of banks burning, don't assume that that

5 must have been wanton destruction. There were weapons kept in barns.

6 And we go to the next slide. "We could see anti-aircraft gun

7 which was next to the school at Pantici," and this is a hamlet of

8 Ratkovici, "and there were machine-guns from houses. You could see how

9 they were mounting onto houses and there was a yellow gun with these PAM

10 and PAT guns, and that's anti-aircraft machine-guns and anti-aircraft

11 guns. And they were being used in order to shoot at people who were

12 looking for food. And dozens of people were killed and wounded on that

13 day."

14 So, again, shooting from houses, the very houses which were

15 allegedly damaged or destroyed.

16 And then we can see for the next slide. "I said that I got to

17 Gornji Ratkovici and the Serb army was firing from the houses, so there

18 was a fight and then the Serb forces withdrew."

19 Yet again, shooting from those houses, those houses thereby

20 becoming legitimate military objectives.

21 We'll see the same when we turn to Jezestica that the front lines

22 went straight through Jezestica and right by the houses. That was the

23 evidence of Sidik Ademovic. And we were referring or quoting there from a

24 Defence exhibit, D35, in which it's the staff, the Serb Crisis Staff

25 determining defence lines in all those settlements which were all in the

Page 16593

1 Kravica local commune. And you see that the Defence lines went through

2 Jezestica, Jaglici, Djermani, and Veresinje. And Sidik Ademovic was asked

3 about that, and he said: "All those lines were known to me, but what I

4 had direct connection with was Siljkovici," which again is mentioned in

5 the indictment. And then he indicated the areas, showing his knowledge of

6 the area: "And to be brief, does this document reliably describe the

7 front line on the ground?

8 "Answer: Yes."

9 And if we turn to Fakovici, Nesib Buric testified, and this is

10 relating to the action on the 5th of October, 1992. "And in between the

11 houses, there were mortars of 82- and 60-millimetre calibre. And if I may

12 add, there were ramparts and bunkers and dugouts that were made of

13 sandbags and crates, ammunition crates that were filled with earth. The

14 greatest problem that we had was the place that we called salas. It's

15 place where we keep wheat. And they dug out a trench next to it and put

16 some concrete in as well. And they kept firing from there in all

17 direction around Fakovici."

18 And then later he clarified that it's not just one barn which is a

19 regular feature with the outhouses. "But each house had its own and fire

20 was opened from behind each one of the houses."

21 So that's the evidence, that from each one of the houses the Serbs

22 were shooting. And as I say, the houses beyond any doubt may therefore be

23 fired upon.

24 And we can see the next slide as well. About the numbers of

25 soldiers in Fakovici on that day.

Page 16594

1 "Question: You referred to several hundreds of Serb soldiers.

2 What's your best estimate for how many Serb soldiers why fighting in

3 Fakovici on the 5th of October, 1992?

4 "Answer: If we have the information that in Fakovici there was a

5 military battalion between 3 and 600 soldiers."

6 Obviously that's between 300 and 600 soldiers. And again we've

7 been if Fakovici. We've seen it's a small area, and if in that small area

8 you have between 300 and 600 soldiers shooting from houses, one can

9 imagine there will quite naturally be a certain amount of damage to those

10 houses, not to mention the damage caused by the Serb counter-attack with

11 heavy artillery.

12 We'll see the next slide, Bjelovac. Azir Malagic testified -- and

13 again about the action in December 1992: "And then they pulled back into

14 the outlying houses in Jovanovici which were like real bunkers. They had

15 placed sandbags around the houses and turned them into machine-gun nests.

16 And then they really started firing at our fighters who were trying to get

17 into those trenches."

18 Yet again, houses a part of the action, a part of what the Serbs

19 were using for a military purpose. And not just one house but every one

20 of the houses.

21 And in the next slide he went on. "After the Serb forces withdrew

22 to the houses, they opened fierce fire at our fighters above Jovanovici,

23 and fierce fighting ensued for about half an hour. ... But what surprised

24 us was that they first shelled the houses. They were probably confused."

25 i.e., the Serbs selling their own houses.

Page 16595

1 "And did you also lose your PAM at those houses?

2 "Yes. The PAM had to fire at those houses. We used that the

3 most because tremendous reinforcements were coming from the direction of

4 Bjelovac towards Jovanovici, so the PAM was firing at those people and at

5 the houses from which fire was being directed at our fighters."

6 And he goes on to say: "A transporter would be firing from

7 Bjelovac from a PAM, they would be firing at the houses, they would be

8 firing at us, so we would have to find better shelter so that we would not

9 be exposed to that fire."

10 And we can now look at the next slide. And this is for Kravica

11 and Jezestica and the 7th of January, 1993. And this is D005. And he

12 said that he knew that there were weapons, Serb weapons in the houses in

13 Kravica and that they were fired from.

14 "As far as the houses in Obackici are concerned," and that's in

15 the local commune of Kravica, "that you were able to see in the course of

16 1992, were they merely used as residential dwellings for civilians or were

17 they used for some other purposes?

18 "They were used only for military purposes because the civilians

19 headed towards Serbia at the very start of the war."

20 And that's confirmation of the document we saw that the Serbs did

21 in fact evacuate civilians at the start of the war.

22 "When you say that they were used for military purposes, can you

23 specify what this was about?

24 "One could see" -- and this is referring to the actual day of the

25 7th of January. "One could see soldiers entering and exiting the houses.

Page 16596

1 One could see them opening fire next to the houses. I saw a mortar

2 there."

3 And this was confirmed also, if we can see the next slide, where

4 he went on further to add: "From your testimony so far, did I understand

5 probably that not only trenches were used to open fire at Muslim villages?

6 "They didn't have much use of trenches. They felt strong and they

7 thought they would be able to deal with the entire situation from their

8 houses rather than from trenches."

9 And if we'd see the next slide. We have even in Serb

10 documents D938, it's a book, I believe. We see it written there and again

11 describing the action on the 7th of January: "I went to five soldiers to

12 the house of an inhabitant Vaso, and we fired at them from there."

13 Now, Your Honours, this case about wanton destruction is concerned

14 is about damage to houses, and it's surely highly significant that in

15 every one of these actions the Serbs were in fact shooting from those

16 houses and that there was very heavy gun fights on each occasion.

17 And finally we can see Ibro Alic as well testifying on this

18 matter. "Was the shooting coming from the houses or from some other

19 location behind the houses.

20 "The shooting came mostly from where I was, from those houses, and

21 higher up, where other people were. I think there was four-barrelled

22 weapon, and I was told that it was being used all the time incessantly and

23 there was shooting coming from those houses all the time. Basically,

24 there was shooting coming oust every single house."

25 So, Your Honours, I think I need add nothing more to the testimony

Page 16597

1 there which speaks eloquently for itself. Where soldiers shoot from

2 houses those houses become military objectives.

3 Now, Your Honour, I move to a new -- a new theme, entirely new,

4 and it's responding to Mr. di Fazio's remarks about Professor Bilic and

5 his evidence and how you evaluate it. And I don't have much to respond to

6 to his arguments which he made on Friday. I just make four points.

7 First, the Prosecution seek to suggest that the fact that there

8 are only forensics on the Fejzic and Salihovic signatures on their

9 exhibits is somehow the Defence's fault. Well, the fact is they're their

10 exhibits and why didn't they simply do what we did? Fejzic is alive. Why

11 didn't they contact Fejzic and simply do what we did, ask for some sample

12 signatures, look at his official documents. There's no reason on earth

13 why they shouldn't do that.

14 Salihovic, again, why didn't they do simply what we did, a bit of

15 investigative work to get copies of documents from the archives and to

16 have forensic analysis done on those signatures. It's not our fault that

17 they didn't do that. And in fact we know that the Prosecution has a

18 certified signature of Salihovic provided by the Serbs. And just for the

19 record, the ERN is 03720854 to 03720855. In our submission, that

20 signature looks different from the ones on exhibits, and it wasn't

21 disclosed to us under Rule 68. That's another matter, but I simply

22 mention that in this connection.

23 Secondly --

24 JUDGE AGIUS: You say certified signature of Salihovic. Certified

25 by whom?

Page 16598

1 MR. JONES: By the Serb authorities. It's -- essentially it's a

2 document from the OBS, and it says -- there's a short document with a

3 signature purporting to be Hamid Salihovic, and then attached with it is a

4 note saying signature of Hamid Salihovic, commander for security and

5 intelligence of Srebrenica armed forces. And that's a document which we

6 found. So why didn't they ask their --

7 JUDGE AGIUS: It's not in the record however, is it?

8 MR. JONES: No, it was on EDS, I believe.

9 JUDGE AGIUS: No. We don't have it.

10 MR. JONES: No, I just mention that.

11 Now, Mr. di Fazio gave an example of what if a ballistics expert

12 were to testify that a bullet had been fired from a weapon and yet the

13 bullet was not -- well, I would only make one point on that which is that

14 you'll recall Dr. Stankovic's report referring to a piece of paper

15 allegedly with the name Kostadin Popovic on it, and I would simply say

16 what's sauce for the goose is sauce for the gander, and if their argument

17 is correct then surely Dr. Stankovic's report is of utterly no probative

18 value because we did not see that piece of paper and that's one of the

19 items referred to in his report.

20 And finally, I've made the point before, but if the Prosecution

21 really thought it would assist Your Honours to have those non-contentious

22 documents they shouldn't be objected to us -- or, rather, Mr. di Fazio

23 shouldn't have stood up and made point of objecting to them being

24 tendered; rather, they should have invited them to be tendered right from

25 the start.

Page 16599

1 Now, sentencing. I just have to correct one or two matters stated

2 by Mr. di Fazio on Friday about sentencing.

3 Now, first in terms of the statements of Mr. Tedder and Mr. Kelly,

4 you know, they can say what they like about whether it was minor

5 cooperation or major cooperation. My point is that they shouldn't pretend

6 that that doesn't exist at all. They shouldn't state untruths to the

7 Trial Chamber such as the accused never agreed any evidence when he did.

8 You know, they're not entitled to ignore the facts. And that's

9 unlawyerly. We were accused of being unlawyerly. That's unlawyerly, to

10 make categorical statements which cannot be backed up by the facts.

11 Now, Mr. di Fazio said this on Friday in he relation to remorse:

12 There have been no expressions of remorse that you have heard in the Trial

13 Record nor in any of the sentencing submissions made by the Defence on

14 behalf of the accused."

15 And then he said: "There has been none in anything that I've

16 heard in the time that I've been involved in this case."

17 Now, Your Honours, the Prosecution made exactly the same point in

18 their final brief and we responded to that exact point to say this: And

19 it's paragraph 155: "The Prosecution says that the accused has shown no

20 sign of guilt or remorse. This is only natural in a trial on a not guilty

21 plea."

22 Paragraph 156: "The Defence has, however, consistently shown

23 consideration and empathy for the suffering of victims during the trial."

24 And I refer to my words in the Rule 98 bis submissions when I said

25 this: "It's clear that people were badly beaten in Srebrenica in the

Page 16600

1 prison. We don't deny that, and we say it's tragic and terribly wrong

2 that it ever happened, and we have every sympathy for those who suffered

3 and for the families of those who died. But we only say that those crimes

4 are not attributable in any way to Naser Oric."

5 Now those remarks which we made are the remarks of our client made

6 on his behalf. Those are part of our submissions, if you like, on

7 sentencing. And when I heard Mr. di Fazio make those remarks about there

8 being no sign of essentially any compassion throughout the trial, I felt

9 sure he didn't even carefully read our closing brief, otherwise he would

10 not have said that. And it's that lawyerly and is that professional? And

11 is what the Prosecution filed as a final brief on the 17th of March, 1993,

12 which I invite the public to obtain copies, is that professional? And I

13 ask the Prosecution to be careful about accusing us of being unlawyerly in

14 light of their own conduct.

15 The Defence showed compassion for every witness who testified

16 about beatings, and you can see on the next three slides. When C007

17 testified. I said to him: "Good morning, Witness. Now just so you know,

18 and perhaps to put you at your ease, we're not to challenge that you

19 received terrible treatment and suffered horribly in 1992 and early 1993,

20 and that you still suffer seriously from that. We just say that it has

21 nothing to do with our client, Naser Oric. Just so that's clear firstly."

22 And then when Mr. Nikolic testified I said: "Now, I'm going to

23 ask you a few questions about the beatings that you suffered, and I want

24 to make very clear, before I asked you these questions, that we don't

25 wish, of course, to minimise in any way what you suffered, but just to be

Page 16601

1 clear about what your injuries were. So I hope that's clear."

2 And then Mr. Ivanovic when he testified.

3 "Question: Now, I want to make it very clear that we don't

4 challenge that you were beaten in Srebrenica and that it was a horrible

5 experience; I want that to be a hundred per cent clear. What we do say is

6 that Naser Oric was not in the reception room in the prison. That's what

7 my questions are concerned with. Do you understand that?"

8 His answer was: "I fully understand what you mean."

9 I think he not only understood but I think he appreciated that

10 remark.

11 Now, as Your Honour pointed out in a criminal trial where the

12 accused maintains his innocence, it's not just difficult it's impossible

13 for him -- and nonsensical for him to say at the same time I'm sorry for

14 what I did, since our case is that he did not do it. The most he can do,

15 the only thing he can do is express sympathy in the way that we have done

16 and as you've seen in those slides. So the Prosecution is deaf to those

17 words.

18 And Mr. di Fazio talked about the impact of the crimes and he

19 said: "Those communities were in the main destroyed forever and the

20 people have not gone back to those villages and resumed their lives."

21 Now, it's a pity that Mr. di Fazio was not on the on-site visit

22 with us as he would have seen that Kravica, Fakovici, and Bjelovac

23 certainly are very much there with their communities, their Serb

24 communities. I don't believe many Muslims have returned to Bjelovac. But

25 it suits the Prosecution to say that those villages have been completely

Page 16602

1 destroyed forever, so they say it even though it's untrue.

2 And I don't know how time and again throughout the 16 months of

3 this trial the Prosecution can make statements which are not founded in

4 any fact. In my submission, that's how the case came to be, statements

5 made without facts to back them up. And the Prosecution's sentencing

6 recommendation should be founded on fact, not fiction, and that was our

7 point.

8 And so, Your Honours, I would conclude simply by saying that the

9 only appropriate sentence is in fact no sentence as justice in this case

10 requires nothing less than a full acquittal of all charges.

11 Our client will in fact take up your offer of a -- the opportunity

12 to say a few words but that would conclude my rebuttal.

13 JUDGE AGIUS: Mr. Jones, we'll invite your client to address us

14 after we have put questions to both of you. In other words, he'll

15 have the final --

16 Yes, Ms. Sellers.

17 MS. SELLERS: Your Honour, only after you put the questions the

18 Prosecution would like to very briefly address the Trial Chamber prior to

19 Mr. Oric speaking.

20 JUDGE AGIUS: Yes. All right. Thank you.

21 MR. JONES: Your Honour, I would object to that, because I don't

22 see what would justify further submissions by the Prosecution. They had

23 two days of closing argument. We had two days of closing argument. They

24 had rebuttal on Friday. We had rejoinder Friday and today. If Your

25 Honours have questions for the Prosecution, of course they can answer

Page 16603

1 that. But I would vigorously oppose the notion that the Prosecution can

2 have another round of submissions. They've had enough time --

3 JUDGE AGIUS: No, no. There are not going to be any further

4 submissions. But if I am reading the Prosecution well, they -- I

5 understand that following our invitation to your client to address us, I

6 understand that they may wish to make a submission on that and only that.

7 MR. JONES: All right. If I may then reserve the right to respond

8 to their response to our rebuttal.

9 JUDGE AGIUS: Do I read you well Ms. Sellers or not?

10 MS. SELLERS: Your Honour, that was precisely what I meant.

11 JUDGE AGIUS: Yes, I would have imagined so. And if anything, I

12 can even anticipate what the submission is. That there is a Rule which

13 specifies exactly when an accused can address but that doesn't exclude

14 other opportunities.

15 Yes. Now, we have some questions for you. Judge Brydensholt

16 doesn't have any questions. I don't have any questions either. I did

17 have before, but I think more or less I have had you address them

18 sufficiently.

19 Yes, Judge Eser.

20 JUDGE ESER: I have some questions. The first one is addressed

21 to both parties. Perhaps either of you may answer it.

22 I would like to come back to the role of the War Presidency. If

23 we compared the War Presidency to a normal situation where you had a

24 magistrate of a city consisting of a mayor and some other people around

25 him and some sort of a city parliament, now, what functions would the War

Page 16604

1 Presidency have? Both of -- both functions of being the chief executive

2 authority in a place and/or also of making certain general decisions in

3 terms of giving norms, setting norms, setting guidelines and so on?

4 That's my first question. There may be additional ones.

5 JUDGE AGIUS: Yes, Ms. Sellers.

6 MS. SELLERS: Yes, Your Honour. I'll respond first.

7 In terms of the War Presidency as has been put forward in this

8 case, it appears that under the former Yugoslavia there were situations

9 when the municipal executive authority would move to war mode, if we can

10 say that. Also, as the evidence has shown, as presented by the Office of

11 the Prosecutor but also Defence evidence, is that we're dealing with a

12 situation where the de jure powers of the War Presidency might not be in a

13 straight line that they would have been in had communications been

14 received from Sarajevo and Srebrenica as it pertained to War Presidency.

15 So there's been some discussion as to whether they were legally set up or

16 not.

17 The Prosecution wants to move more to how do they function in the

18 manner in which they were set up. We had this discussion about what's

19 written on paper and what happened in fact.

20 And our position, Your Honour, is that the paper that was emitted,

21 whether it be from the War Presidency or military authorities, was not

22 completely disconnected with what happened on the ground. As a matter of

23 fact, there was probably more a reflection in the paperwork as to what

24 happened on the ground than a non-reflection, particularly given that

25 paper was such a vital resource.

Page 16605

1 The Prosecution would state that the War Presidency in this case

2 was a Presidency that was not a military hierarchy. If they were the

3 Supreme Command governing command from the civilian and even if there were

4 the military functioning of Naser Oric and other military units within

5 Srebrenica, Hajrudin Avdic did not give orders to the military. If the

6 Trial Chamber thinks that because they were the supreme power of

7 government, then that merely places Naser Oric back in the chain of

8 command. It doesn't obviate his responsibility. It might implicate the

9 responsibility of Hajrudin Avdic. The Prosecution's position is that

10 doesn't in any way diminish his liability or guilt.

11 But from how the facts have emerged it seems to me that the War

12 Presidency dealt with many of the civilian functions within the town.

13 Becir Bogilovic was quite certain. He was civilian police. They dealt

14 with civilian functions, in terms of dividing up food that might have come

15 back after the attacks, in terms of taking care of refugees being housed

16 in certain buildings, in terms of having the refugee population be able to

17 be contained enough so that the city could continue to function, and then

18 it seems that they had quite a -- quite a role in holding meetings and

19 discussing problems within the town, but we have no evidence that's

20 presented and the Prosecution would submit that they did not orders to the

21 military police, to the military in general, and that they were often, as

22 P84 shows, were a bit taken aback when they were not included in just

23 generalised discussions about attacks or discussions about important

24 things that the military would undertake.

25 I hope I've answered Judge Eser's question. If not, please

Page 16606

1 redirect me to certain specific parts.

2 JUDGE ESER: Thank you.

3 JUDGE AGIUS: Mr. Jones, do you wish to address the Chamber on

4 this issue?

5 MR. JONES: Yes. Well, I would will refer to the evidence of

6 Mustafa Sacirovic who said: "The War Presidency was the supreme organ of

7 Srebrenica municipality."

8 I would refer you also to the evidence of Witness Brkic and Hogic

9 to the same effect; and also to D282; and D283 on that subject.

10 And my learned friend just referred to P84. If you turn to

11 page 5050, 02115050 there is a discussion of the War Presidency and

12 Ramiz: "The War Presidency substitutes for the Assembly. The members of

13 the War Presidency are the Municipal Assembly President," et cetera.

14 And then further down, hierarchy. "It discusses and assesses the

15 war situation and takes decisions." He's referring to the War Presidency.

16 "It is both the supreme authority and the Supreme Command."

17 And so our submission is that the War Presidency was the supreme

18 authority on the ground.

19 I can't answer Your Honour's question about what it would be in a

20 normal situation because there isn't evidence of that. I don't want to

21 give evidence myself, and above all else, obviously Srebrenica was not a

22 normal situation. The situation in 1992, 1993 is that it was the supreme

23 authority.

24 JUDGE ESER: Now, I have a follow-up question. If it is -- if we

25 assume that the War Presidency had been supreme authority in the city and

Page 16607

1 they had to deal with quite a lot of issues which in a normal situation

2 would be distributed between different authorities, bodies, and so on, and

3 if we also assume that a supreme authority in a city would delegate

4 certain functions to lower bodies or groups or persons, and if we also

5 take into account the special situation in Srebrenica because there has

6 been a lot -- as it has been described in various ways a lot of chaos, is

7 it possible to think of a clear-cut separation of the various powers,

8 possibilities taken within a place, or would it be normal that there is a

9 transgressing of certain areas from one to the other or, to put it this

10 way, if we assume that with all the higher levels of War Presidencies

11 there have been other bodies to deal with certain issues, and if it was a

12 rather difficult situation, is it thinkable, at least, that at certain

13 times the duties or powers of two different bodies have been confused?

14 MR. JONES: Well, Your Honour, a couple of points come to mind.

15 Firstly, we don't want to enter into the realm of speculation

16 about what might have happened or could have happened. We have the trial

17 record. We have the evidence of witnesses and that's obviously what we're

18 basing ourselves on. That would be my first point.

19 Secondly, you mentioned cities and an authority with many powers.

20 Well, at the same time, this isn't the Greater London Council. It's not

21 the City of New York. We've heard evidence on a very micro -- sort of

22 microlevel of Avdic interacting with Jusufovic and others. And if we're

23 talking, as I assume we are, about detention and trying to work out who

24 was in charge of what, we don't have to speculate about what might have

25 happened with different lines being crossed. We have the evidence there.

Page 16608

1 We have the president of the War Presidency dealing with the chief of the

2 civilian police, receiving reports from Mirzet Halilovic, receiving

3 reports from Becir Bogilovic. We have the evidence of Mustafa Sacirovic,

4 Djilovic. And, yes, there were lots of people in Srebrenica, tens of

5 thousands of people, but when you come to something like who was dealing

6 with what, we've had very concrete evidence in this case of what the War

7 Presidency was doing and what the members of the War Presidency were

8 involved in. And so, in my submission, there's no need to speculate about

9 what might have happened and how things could have been confused.

10 But, thirdly, having said that, of course there is evidence that

11 things were highly confused in Srebrenica, and certainly we've made a

12 point that it was anarchy and it was chaos. But one couldn't go from

13 that -- I don't know if this is the thrust of Your Honour's

14 question, but to say, oh, well, if there was confusion, then possibly the

15 War Presidency was not responsible for detention, possibly the military

16 was. Speculations of that nature, if that's where Your Honour is heading,

17 are utterly fruitless. We have evidence and the evidence -- clearly shows

18 the War Presidency being responsible for detention as I've set out today.

19 JUDGE ESER: Now, you see --

20 MS. SELLERS: Judge Eser, I don't know whether you wanted me to

21 address that or not.

22 JUDGE ESER: My questions are addressed to both parties.

23 MS. SELLERS: Okay. Fine. If I just might then follow my learned

24 friend in that.

25 Is -- Defence counsel talks about specific information as compared

Page 16609

1 with possibilities. The Prosecution will try and say quite briefly,

2 because Your Honours are quite aware, that it's June 15th that we have the

3 creation of the military police created by the Srebrenica TO, July 1st

4 that we have documents that show decisions made by the Crisis Staff, it

5 included creation of the War Presidency, and again the affirmation the

6 military police and the communications system, Hamed Alic communication

7 system being set up that would serve both -- and this is the issue that I

8 think Your Honour is reaching, that would serve both the military police

9 and the War Presidency, had a civilian/military role and even a role that

10 took it back to Bratunac.

11 That civilian authorities, the military authorities at times met

12 together, yes. That there might have been a type of sharing of powers or

13 sharing of resolutions of problems, yes. But let's not confuse what was

14 specific information about one incident and generalise it to information,

15 such as Mirzet Halilovic being a -- subordinated to Becir Bogilovic. Why

16 subordinate -- why resubordinate someone to someone who is already

17 subordinated? So there were certain lines that were clearer than one

18 would believe, and then confusion might have ensued afterwards, after

19 October 14.

20 But Your Honours, I think that both the Defence and the

21 Prosecution can state that the situation in Srebrenica at times followed

22 what would have been by the book under Yugoslav law, and at times it

23 reacted to the situation that was -- that it found itself in on the

24 ground, both the civilian authorities and the military authorities. That,

25 in a way, diminishes our case, Your Honour.

Page 16610

1 JUDGE ESER: Before I put my next question I would like to make

2 sure that I am not asking for speculations.

3 My question -- my next question is relating to the law, and here

4 we had evidence or submissions with regard to the military police,

5 submissions which would say there was no legal basis for establishing a

6 military police at all. There has been no clearer description of the

7 duties and authorities they would have.

8 Now, what would be the legal conclusion? What legal conclusion

9 would have to be drawn? My question goes again to both parties. There

10 would be two main solutions if we assume that there was no legal basis for

11 establishing a military police, but nevertheless, there have been certain

12 people within the SUP and the building behind the building.

13 Now, if these people in the building lacked authority, now,

14 what -- there could be two solutions. One solution could be since there

15 was no authority, there was no duty to protect. That would mean that

16 you -- a non-authorised person could take prisoners, put them at a certain

17 place and leave them without any protection. That would be one legal

18 conclusion.

19 Now, the alternative conclusion could be that even if somebody has

20 no authority to do a certain thing, to take a certain decision, to perform

21 a certain action, but if he does it, he has a certain duty with regard to

22 the persons concerned. So even that means if he takes this position, even

23 if there was no authority from a legal point of view, at least by taking

24 prisoners there was developed or there was resulted some duty to take care

25 of those people in order to let them unprotected.

Page 16611

1 Now, my question to both parties is: What legal opinion would you

2 have to this issue, to this alternative? What are the results? What

3 conclusion can be drawn from the lack of authority with regard to having,

4 nevertheless, some sort of duty to protect peoples who are under -- under

5 the protection or under the possibility to deal with?

6 Now, you could also ask when you are a guard, even if I have not

7 been authorised to be a guard, when you are a guard you become a guardian

8 with regard to protecting the people concerned. That would be the

9 question I have to the parties.

10 JUDGE AGIUS: Yes, Ms. Sellers. If you want to answer the

11 question.

12 MS. SELLERS: Certainly, Your Honour.

13 Your Honour, the Prosecution's position is that as we described

14 earlier there might be a bit of -- of a -- of a breach between the de jure

15 authority coming from Sarajevo and Tuzla. I mean, just put those

16 arguments to side because we're going to now what in essence the military

17 police whether it was up de facto, just meaning outside of the realm of

18 the Tuzla and Sarajevo establishment. It was established according to

19 what the situation in Srebrenica and those who declared themselves to be

20 the authorities, first the military authorities until the civilian

21 authorities were set up. So there was a de facto type of legality of the

22 military police, and therefore we could say the guards at the detention

23 centre in both the first and the second segment.

24 Now, for that individual guard, yes, you decide to be a guard, you

25 do have a duty, a responsibility. That would take place if we just had a

Page 16612

1 guard in any situation in a prison whether we were at war or not. Here we

2 have guards that are part of a military structure, the military structure

3 that evolved in Srebrenica.

4 Now, to show that the military structure, and in particular the

5 military police, considered that there were duties and their obligations

6 is that we have a lot of documentation, documentary evidence that talks

7 about when people steal weapons, when people steal food, to be arrested,

8 to be brought to a prison. Yes. There was not this unrealistic sense of

9 responsibility. Not only in terms of the civilian population but in terms

10 of the military population among themselves.

11 And, Judge Eser, I don't think that it is a leap to say that the

12 guards who were at the detention centres, irrespective of how the military

13 police were structured in terms of law with Sarajevo and Tuzla did have

14 duties to the prisoners.

15 In addition, international humanitarian law is applicable to that

16 situation. We know that the international community expects that when

17 you're in the hands of the enemy or when you're outside of combat and

18 placed in detention situations that the military guarding you, or the

19 powers that are guarding you, do have duties and those duties entail the

20 non-commission of crimes.

21 JUDGE AGIUS: I thank you, Ms. Sellers. Ultimately at the end of

22 the day the bottom line is would Naser Oric be responsible for it. This

23 is the whole question that needs it be addressed.

24 Yes, Mr. Jones.

25 MR. JONES: Yes. Yes, precisely Your Honour.

Page 16613

1 I would make just really two broad points. And one is, to a

2 certain extent, an objection to this -- this way of proceeding, because,

3 Your Honours, if we were on appeal before a court appeal could discuss

4 different theories of the law and think of different scenarios. I

5 emphasised before the Prosecution brings this case, they have to give us

6 notice of any theories which they intend to use, and that, Your Honour

7 Judge Eser, if at this stage you suggest or devise new theories that a

8 duty to act might arise from an omission. Well, I simply make this point,

9 Your Honour, that it's too late for any new theories. They have to be set

10 out by the Prosecution. And I want to make that point, that it's not just

11 -- we're not just --

12 JUDGE AGIUS: We're disputing theories, Mr. Jones. Let's calm

13 down.

14 MR. JONES: Yes. Well, Your Honours, in terms of the evidence,

15 the War Presidency set up the military police. The War Presidency is

16 responsible for their acts. The civilian police were authorised and

17 duty-bound to protect the detainees because the civilian police were

18 holding the detainees, as I've outlined today. And so if the Prosecution

19 wants to argue that there was a duty to act and an omission to act, that's

20 something which should have been in the indictment. It should have been

21 in their pre-trial brief. And then that's why I'm reluctant to -- to even

22 get into the whole theoretical aspect of this debate, because I see -- I

23 think -- correct me if I've misunderstood you, Judge Eser, but the essence

24 of your question is if the military police was not actually authorised,

25 not properly set up de jure, and we've argued that the Territorial Defence

Page 16614

1 could not have a military police component based on various documents,

2 there were, if de facto, nonetheless something calling itself the military

3 police itself set up, and if it detains people -- and as I say, the

4 evidence doesn't support any of these propositions, but I'm going with

5 your scenario, that the military police therefore detained people,

6 wouldn't that create a duty to act and, therefore, a omission to protect

7 those people a corresponding legal responsibility?

8 That's how I understand your question, and I think that's what

9 you're driving at. And my response only is factually that's not -- that's

10 not the scenario, and that, secondly, these omissions and duties to act

11 are not pled in the indictment, and it's not something which we are called

12 upon to respond to.

13 JUDGE AGIUS: Any further questions?

14 JUDGE ESER: Yes, yes, yes. I really would make clear, Mr. Jones,

15 that I -- that you brought a lot of legal arguments here, and if the

16 Judges want to have clarification with regard to certain legal arguments,

17 further information, I think it's completely appropriate to ask,

18 completely proper to ask.

19 JUDGE AGIUS: It is.

20 JUDGE ESER: And so just to refer to your own or the Defence's

21 presentation with regard to the question of committing, you referred to

22 the Krstic case, and you even brought it here, that committing covers

23 physically perpetrating a crime or engendering a culpable omission in

24 relation of criminal law. I think it's a very important question to ask

25 whether there was an omission or not, because an omission is considered as

Page 16615

1 a form of committing.

2 Now, since you referred to the German law at various places and

3 since you showed that you are familiar with the German law, I would like

4 to ask you what the position is with regard to the following: As you

5 certainly know, there are in many -- not only the German law, in many

6 domestic laws there's a duty to act which may be by virtue of taking a

7 factual position. In Germany it's called "garantenstellung kraft

8 ubernahme." There is another duty to act which may result from antecedent

9 conduct that refers, in particular, to the case where some -- where a

10 person has been brought in the situation in which this person is not --

11 unable to take care of himself or herself. Then those who have brought

12 this person into this situation have a certain duty to protect.

13 Now, there is a clear link, I think, between your own reference to

14 committing by acts or omissions -- and you may remember that in our 98 bis

15 decision we also made clear that both acts and omissions may incur

16 responsibility. That's an important question which has to be clarified:

17 On what kind of duty it may be based that an endangered person should be

18 protected.

19 MR. JONES: Yes. No, Your Honour, I -- when I cited Krstic, I was

20 well aware that it referred to the omission, and I imagined that Your

21 Honour Judge Eser would raise that part of the definition. And this is

22 why I go back to the point, that this isn't merely a question of what are

23 possible legal theories. It's a question of what did the Prosecution

24 allege.

25 Now, if you look at Krstic, it's engendering a culpable omission.

Page 16616

1 Now, the Prosecution hasn't alleged what culpable omission was committed

2 by Naser Oric's subordinates. They would have to allege that in the

3 indictment. They would have to say Naser Oric is responsible because his

4 subordinates engendered a culpable omission, and they have to describe

5 what culpable omission consisted of clearly so we know the case we have to

6 meet, and then they have to prove it as well. And I referred last week to

7 the complete evidential void as to how people got into the prison.

8 There are mens rea requirements. A culpable omission is not any

9 omission. It's not negligent omission. It's a culpable omission. And

10 especially if you're talking about something like murder. Then it's not

11 merely, as I say, leaving the door open which makes you a murderer. And I

12 gave an example in our closing brief that if a husband walks out the front

13 door and leaves the door open, maybe he shouldn't have done, maybe that

14 was negligent, and he omitted to close the door and a murderer goes in and

15 kills his wife, is he a murderer? Of course not. It's not any omission.

16 It's a culpable omission.

17 So my point is that has to be pleaded, firstly; and then,

18 secondly, it has to be proved. And I mentioned today how Radic and

19 Ivanovic spoke of how they were only beating in the evenings. Now, did

20 the guards culpably omit to lock the doors, or did they lock the doors and

21 the doors got broken down, as they said, people breaking in to mistreat

22 the prisoners? Did the guards -- did the guards notice the detainees were

23 being mistreated? We've got no evidence of that. We've got no evidence

24 that the guards said, "Oh, look, you're in a bad way."

25 I'm sure the Prosecution would like at the eleventh hour to say,

Page 16617

1 "Oh, well, that can be inferred," but these are all matters which have to

2 be pleaded and which have to be proved. And that's why, as I say, at the

3 eleventh hour saying, "Well, maybe we can put our case on this theory, on

4 a theory of omissions," is far too late for that, even as a matter of law

5 one can imagine a case which might be built on that.

6 And I would add, Your Honour, and I also made this point very

7 clear in our closing brief, what -- what normally happens in this sort of

8 a case, the case Your Honour has in mind where you have a camp and you

9 have detainees who are there and they are being mistreated -- and it's

10 quite reasonable, and I accept that if you have a camp with barbed wire

11 around it and you have a camp commander, if people get in and mistreat the

12 detainees, then he's going to be responsible, because after all, it's not

13 very savory to say, "Well, that's all right. People got in and mistreated

14 these detainees and no one's responsible." No. But that's -- that's your

15 camp commander JCE case. That's why the third type of JCE evolved, to say

16 if the whole detention itself is criminal, then -- you know, then of

17 course you can hold the commander responsible for everything that happens.

18 This is a case not based on JCE. It's based on classic 7(3)

19 superior to subordinate liability, and the Prosecution has to allege and

20 prove every single element of the mens rea and actus reus. That would be

21 my answer.

22 JUDGE AGIUS: Yes. I thank you. And in addition, if I may add,

23 there is always, at the end of it, that any law that applies to this case

24 must first and foremost be proven to have been part of international law

25 or customary law at the time of the commission of the crimes if these

Page 16618

1 crimes were committed.

2 So next question.

3 JUDGE ESER: Of course, I only took up what you call theories, but

4 I think they are part of the law. But particularly with regard to the

5 law, I was a little bit irritated -- or not "irritated" is not the right

6 word. I was puzzled a little bit when with regard to the interpretation

7 of Article 7(3) you would say it is up to the Prosecution to show that the

8 interpretation of the Defence is absurd.

9 Now, is it your position that the burden of proof does not only

10 refer to evidence and facts as is all over the world, or that also the

11 burden of proof is also with regard to the interpretation of the law?

12 MR. JONES: Your Honour has to take what I said there in context.

13 And I don't want to spend another hour on my submissions on committing,

14 but you'll recall the argument was -- was not that. The argument is this:

15 Article 7(3) says committing. It doesn't refer to any other forms of

16 liability. Now, Article 7(1) also refers to committing, and it

17 distinguishes it from aiding and abetting. So we say that obviously

18 committing doesn't included aiding and abetting, because in 7(1) the two

19 terms are contrasted. That's a classic argument -- forgive me. The term

20 escapes me. But it's clear from the plain words of Article 7(3) that it's

21 committing. That's -- that's the very first point of view that in a

22 word -- the same word in the same Article is going to have the same

23 meaning.

24 Then I said it's a matter of statutory interpretation that you

25 first of all read the plain words of an Article, and only if that leads to

Page 16619

1 absurdity or repugnance do you have to look for another meaning.

2 Now, it's the Prosecution who is saying, "We don't like

3 "committing" just meaning committing. We want it to include something

4 else." So of course because they're challenging the plain interpretation

5 they have the burden. And I'm not talking about burden in a broader sense

6 of a criminal trial. They're the ones who are challenging a plain reading

7 of an Article, so of course they have to show that that interpretation

8 leads to absurdity or repugnance. It's clear principle, a statutory

9 interpretation set out in Celebici and in other places.

10 And then I said, secondly, a literal interpretation is also a

11 principle of statutory interpretation and "committing" means

12 "committing." It means physically committing in any -- in any basic

13 sense of the English word.

14 Then I said, on top of that, and again it's a matter of statutory

15 interpretation known well to criminal lawyers, in dubio pro reo; if in

16 doubt, then the interpretation is the one in favour of the accused.

17 Then, Your Honour, I also pointed out that in Blagojevic, a

18 decision of this Trial Chamber, paragraph 794, the Chamber said that

19 "committing" means "committing." It doesn't mean these other forms of

20 responsibility. So again, if the Prosecution is challenging what a Trial

21 Chamber of this Tribunal has said, I would say it's fair enough that they

22 have a burden to show that that is not a viable interpretation.

23 Then, Your Honour, I went to all the Articles where "committing"

24 appears in the Statute, and I said that "committing" there clearly means

25 physically committing. And you may recall I said Article 1, which gives

Page 16620

1 jurisdiction to the Tribunal, means committing because it has to be on the

2 territory of Yugoslavia. If someone aids and abets a crime which is then

3 committed in France or Germany, it's not within the competence of this

4 Tribunal, and so "committing" means "committing."

5 I then went to Article 7, I believe it is, or 9, territorial

6 jurisdiction, where "committing" means "committing."

7 JUDGE AGIUS: Enough --

8 MR. JONES: And Article 2 as well, "committing or ordering to be

9 committed" -- means always well --

10 JUDGE AGIUS: I -- the --

11 JUDGE ESER: It was not my question that you repeat everything.

12 My simple question was: Does the burden of proof rule only refer to

13 questions of facts and evidence, or does it also refer to the question of

14 interpretation? That was my very simple question.

15 MR. JONES: Yes. And I answered that, which is that the burden is

16 on the Prosecution. It's a different burden. It's the burden of showing

17 that a literal interpretation of the Statute is not -- is not a correct

18 one. So its that burden.

19 JUDGE AGIUS: I think -- I think it's a very incorrect use of the

20 word "burden," because in matters of law, no one has a burden. In matters

21 of law, it's a question of whether you succeed in convincing the Trial

22 Chamber of the correct reading and sometimes interpretation of the law.

23 These are submissions basically. No one has a burden of proving that a

24 particular interpretation of the law is a correct one. You make your

25 submissions, and the Trial Chamber will eventually decide whether they

Page 16621

1 were convincing enough, whether we agree. They may be very convincing,

2 and we may completely agree with you or the Prosecution in matters of law.

3 MR. JONES: Yes. May I just say this just in case the point then

4 perhaps wasn't clear? It's the party which says that an Article should

5 not be interpreted according to its plain words has maybe not a burden, an

6 onus, but there's obviously something on them to say this word should not

7 be interpreted as it appears. If someone says -- all right. That's

8 fine. That's all I was saying.

9 JUDGE AGIUS: And ultimately, then there is this paradox

10 surrounding this whole argument: that we may hear a submission from you or

11 from the Prosecution on a particular legal issue and, as such, let's say

12 it could be, in our minds, a very poor submission, but ultimately we

13 ourselves can elaborate it further to the extent that what was initially a

14 very poor submission on your part, one or the other, becomes a very

15 strong, convincing argument which we will then apply in our decision.

16 So this -- we're not speaking of burdens. I mean it's --

17 certainly you need not -- and no one was trying to confuse this issue as

18 being amalgamated, being part and parcel or a horse-and-carriage

19 relationship with the onus of proving facts and proving the guilt of the

20 accused, which is almost absolute on the Prosecution in the sense that

21 they have to prove it beyond reasonable doubt.

22 Yes, Judge Eser.

23 JUDGE ESER: Just one sentence. But what has been said by the

24 Presiding Judge is exactly what -- that was exactly my point. I just

25 wanted to show some precedence against the inflationary use of the burden

Page 16622

1 of proof rule, because it's really limited to certain issues. It doesn't

2 cover the whole criminal law.

3 JUDGE AGIUS: Okay. Any further questions?


5 JUDGE AGIUS: So it's -- I understand, Ms. Sellers, that you

6 wanted to address the Trial Chamber before we give the floor to the

7 accused. Please be as brief as you can.

8 MS. SELLERS: Yes. Thank you, Your Honours. If I understand

9 correctly, Mr. Oric will now be addressing the Trial Chamber under

10 84 bis --

11 JUDGE AGIUS: No. I never invited Mr. Oric to address the Trial

12 Chamber under 84 bis. 84 bis relates to -- how I read it, to the initial

13 stages.

14 MS. SELLERS: Fine. That is my first--

15 JUDGE AGIUS: -- of the proceedings. This is something

16 different.

17 MS. SELLERS: Thank you very much. Fine. That's the first thing

18 we did want to clarify, Your Honours.


20 MS. SELLERS: And this morning I asked my learned friends would

21 Mr. Oric being addressing the Chamber, and they told me that yes, he would

22 be. That's when the Prosecution received notice on it. And we would like

23 to put on the record, first, the clarification in terms of 84 bis.

24 And then second is that not knowing that Mr. Oric was going to

25 address the Trial Chamber, it came subsequent to your invitation, not

Page 16623

1 knowing what would be the content or the gist of this address to the Trial

2 Chamber, of course Prosecution did not take into account that in its

3 submissions, particularly as it pertained to sentencing -- right. And we

4 would just like to state what is probably the obvious, that this is an

5 unsworn statement that has not been tested by the evidence.

6 Thank you, Your Honours.

7 JUDGE AGIUS: It's definitely an unsworn statement. It's

8 definitely -- and I draw a parallel now from 84 bis under the statement

9 "under the control of the Trial Chamber," and with the understanding that

10 he is not being compelled to make a statement, and also with the

11 understanding that neither we nor anyone else will ask him questions.

12 Then as in the case of 84 bis but not pursuant to 84 bis, we will

13 decide on the probative value of any statement that he may give, relevance

14 or whatever weight we decide to attach to it. But the decision that we

15 have taken is based on justice and not a particular -- a particular Rule.

16 Certainly not 84 bis.

17 Unfortunately, it seems that the -- while the Rules cover the

18 opening stage of the trial, and while the Rules also provide, under 85,

19 for any evidence on any relevant information that may assist the Trial

20 Chamber in determining an appropriate sentence and that is regulated by

21 evidence, when you come to the closing arguments - this is basically what

22 we are basing it upon - the parties shall also address matters of

23 sentencing and closing arguments, and on that basis we think that we

24 should give the opportunity to the accused to have the final -- the final

25 word before I declare the proceedings, the trial, closed pursuant to

Page 16624

1 Rule 90 -- 97 or whatever it is.

2 Yes. Mr. Oric, you have followed the debate these last few

3 minutes. I understand that you wish to make a statement. I want you to

4 confirm, first and foremost, that no one has compelled you to make this

5 statement; in other words, that what you are about to tell us you will be

6 telling us because you yourself, after consultation with your counsel, has

7 decided to address us.

8 THE ACCUSED: [Interpretation] Your Honours, I confirm that no one

9 has forced me, and after consulting my lawyers, I wish to address to Your

10 Honours. First --

11 JUDGE AGIUS: Okay. Before you proceed, I also want to make sure

12 that you are aware that anything that you may say will be considered by

13 this Trial Chamber in its deliberations, or may be considered by this

14 Trial Chamber in its deliberations even though it's not sworn evidence,

15 even though it's freely being provided.

16 THE ACCUSED: [Interpretation] Your Honours, yes, I'm aware of

17 that.

18 JUDGE AGIUS: Yes. Mr. Oric, you may proceed. Thank you.

19 THE ACCUSED: [Interpretation] Your Honours, first of all, I wish

20 to thank you for giving me the opportunity to address you. I will be very

21 brief.

22 Throughout the trial, I have listened very carefully to what my

23 Defence counsel have said, and I have nothing to add to this. I trust

24 Your Honours, and I trust that Your Honours will reach the right

25 decision. I wish to thank all of you, and there is nothing further I

Page 16625

1 wish to say. That's all.

2 JUDGE AGIUS: Okay. I thank you so much, Mr. Oric. Please be

3 seated.

4 THE ACCUSED: [Interpretation] Thank you.

5 JUDGE AGIUS: So I suppose you have got no further submissions to

6 make. So pursuant to Rule 87(A), which says: "When both parties have

7 completed their presentation of the case, the Presiding Judge shall

8 declare the hearing closed, and the Trial Chamber shall deliberate in

9 private."

10 The hearing is hereby declared closed, and we will be proceeding

11 to deliberate in private. Our hope is that we will be able to hand down

12 our final judgement end of June, the end of June. We will be doing our

13 utmost to meet that target. You will, of course, be informed in due

14 course by means of a Scheduling Order.

15 I thank you so much for all your useful submissions both in the

16 closing briefs but also the -- in the oral arguments that you have

17 submitted. I can assure you that they will be of great assistance to us

18 in our deliberations, which are -- this is not an easy case. So we

19 will -- we do appreciate the contribution that you have made.

20 Thank you so much, and you will see our faces again end of June.

21 Thank you.

22 --- Whereupon the hearing adjourned at 12.14 p.m.,

23 sine die.