Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Tuesday, 1 April 2008

2 [Appeals Hearing]

3 [Open session]

4 --- Upon commencing at 9.00 a.m.

5 JUDGE SCHOMBURG: A very good morning to everybody.

6 Madam Registrar, would you be kind enough to please call the

7 case.

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

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

10 JUDGE SCHOMBURG: Thank you.

11 May I have the appearances, first for the Prosecution, please.

12 MS. JARVIS: Good morning, Your Honours. Michelle Jarvis

13 appearing for the Prosecution, together with Ms. Christine Dahl,

14 Ms. Najura Nabti, Ms. Laurel Baig, Ms. Nicole Lewis, Mr. Paul Rogers, and

15 our case manager today, Mr. Sebastiaan van Hooydonk.

16 JUDGE SCHOMBURG: Thank you.

17 And for the Defence.

18 MS. VIDOVIC: [Interpretation] Good morning, Your Honour. Good

19 morning to my learned friends from the Prosecution, to everyone in the

20 courtroom and around the courtroom. Vasvija Vidovic and John Jones

21 appearing for Mr. Naser Oric, together with legal assistants, Jasmina

22 Cosic and Adisa Mehic and our intern Dimitri Ternousui.

23 JUDGE SCHOMBURG: Thank you so much.

24 In this context, I note that Mr. Oric is not present. Defence

25 counsel has notified the Appeals Chamber in writing that Mr. Oric has

Page 2

1 taken an informed decision that he does not want to exercise his right to

2 be present at this hearing. For the record, I will read the pertinent

3 part of the letter signed by Ms. Vidovic that was not officially filed

4 but sent to the Registrar on 18 March 2008:

5 "We have carefully considered the matter with our client, and we

6 are hereby writing to inform you that Naser Oric will not be exercising

7 his right to be present at the appeal hearing. This decision not to

8 attend was an informed one and that Mr. Oric understands that he would

9 have been guaranteed the possibility of attending without deprivation of

10 liberty."

11 May I ask Mr. Oric's counsel, does your client still want to

12 waive his fundamental right to be present and at the end of the hearing

13 to have the final word; and if so, can you please confirm this on his

14 behalf.

15 MS. VIDOVIC: [Interpretation] Yes, Your Honour, I can confirm

16 that Mr. Oric has been informed of his rights and that he continues to

17 waive his right to be present and to have a final word.

18 JUDGE SCHOMBURG: Thank you. This is the appeals hearing in the

19 case of Prosecutor versus Naser Oric. The events giving rise to this

20 case took place in the municipality of Srebrenica in Bosnia and

21 Herzegovina and its surrounding area between June 1992 and March 1993.

22 At the outset, I will briefly summarize the appeals which are pending

23 before the Appeals Chamber.

24 Both the Prosecution and Mr. Oric lodged appeals against the

25 Trial Chamber judgement rendered on 30 June 2006 by Trial Chamber II.

Page 3

1 The Trial Chamber found Mr. Oric guilty pursuant to Article 3 and 7,

2 para 3 of the Statute of the Tribunal for failing to discharge his duty

3 as superior to take necessary and reasonable measures to prevent the

4 occurrence of murder, Count 1; and cruel treatment, Count 2, from 27

5 December 1992 to 20 March 1993.

6 The Trial Chamber acquitted Mr. Oric of all other charges of the

7 indictment. Mr. Oric was sentenced to two years' imprisonment. Since

8 the imposed sentence was less than the time spent by Mr. Oric in

9 pre-trial detention, the Trial Chamber ordered his immediate release.

10 Mr. Oric filed his initial notice of appeal on 31 July 2006,

11 setting out 16 grounds of appeal. Pursuant to the Appeals Chamber's

12 direction, Mr. Oric filed an amended version of his notice of appeal on

13 5 October 2006, when he notified the withdrawal of his 12th ground of

14 appeal. In his appeal brief, two additional grounds of appeal were

15 withdrawn, to be precise grounds 9 and 10 -- 16, sorry, 16.

16 The Prosecution filed its response brief on 27 November 2006.

17 Finally, Mr. Oric filed an amended version of his reply brief on

18 15 December 2006.

19 I will now briefly summarize Mr. Oric's grounds of appeal

20 following the numerical order in his briefs.

21 Mr. Oric's first ground of appeal consists of nine subgrounds of

22 appeal in which Mr. Oric submits that the Trial Chamber made factual

23 findings which were unsupported or unsustainable on the evidence. Within

24 these subgrounds, he also alleges that the Trial Chamber committed three

25 legal errors.

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1 In his second ground of appeal, Mr. Oric alleges that the

2 Trial Chamber erred in law and, in fact, in failing to make proper

3 findings in relation to the credibility of certain witnesses'

4 testimonies.

5 Mr. Oric's third ground of appeal deals with alleged errors

6 related to the Trial Chamber's application of the burden of proof.

7 In his fourth ground of appeal, Mr. Oric submits that the

8 Trial Chamber misapplied the standard of proof and makes factual

9 challenges to the Trial Chamber's conclusions with respect to each

10 instance of murder.

11 Under his fifth ground of appeal, Mr. Oric submits that the

12 Trial Chamber erred in law in failing to provide a reasoned opinion with

13 regard to the alleged criminal responsibility of his subordinates, and

14 argues that the various forms of criminal liability the Trial Chamber

15 might have applied to his subordinates are not recognised under

16 international law.

17 In his sixth ground of appeal, Mr. Oric submits that the

18 indictment did not put him on notice of the alleged criminal conduct of

19 his subordinates.

20 Under his seventh ground of appeal, Mr. Oric challenges the

21 Trial Chamber's legal and factual findings regarding both the actus reus

22 and the mens rea of his allegedly culpable subordinates.

23 Mr. Oric's eighth ground of appeal relates to the testimony and

24 credibility of Becir Bogilovic.

25 Mr. Oric's ninth ground of appeal was withdrawn.

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1 Under his tenth ground of appeal, Mr. Oric alleged that the

2 Trial Chamber erred in law in its assessment of documentary evidence.

3 In his 11th ground of appeal, Mr. Oric submits that the

4 Trial Chamber erred in law in reaching self-contradictory and irrational

5 conclusion.

6 Mr. Oric's 12th ground of appeal was withdrawn.

7 This brings us to Mr. Oric's 13th ground of appeal that deals

8 with the admission and assessment of the recording of an interview

9 conducted between Mr. Oric and representatives of the Prosecution in

10 Sarajevo in April and May 2001.

11 Under his 14th ground of appeal, Mr. Oric submits that the

12 Trial Chamber erred both in law and, in fact, in finding that he had the

13 duty to prevent murder and cruel treatment by his alleged subordinates.

14 Mr. Oric's 15th ground of appeal relates to the Prosecution's

15 violations of its disclosure obligations and the Trial Chamber responds

16 thereto.

17 Finally, I note that Mr. Oric's 16th ground of appeal was

18 withdrawn.

19 I now turn to the Prosecution's appeal.

20 The Prosecution filed its notice of appeal on 31 July 2006,

21 setting out five grounds of appeal. It filed its correct appeal brief on

22 18 October 2006. Mr. Oric's response brief was filed on 27 November

23 2006, followed by the Prosecution's reply brief on 4 July 2006.

24 The Prosecution's first ground of appeal is composed of three

25 subgrounds that concerns the extent of Mr. Oric's criminal responsibility

Page 6

1 for the crimes of murder and cruel treatment. In the first subground,

2 the Prosecution submits that the Trial Chamber erred both in law and, in

3 fact, in finding that Mr. Oric did not have effective control over the

4 Srebrenica military police between 24 September and 16 October 1992. The

5 second subground deals with Mr. Oric's duty to punish crimes committed

6 before he had effective control. The last subground relates to

7 Mr. Oric's responsibility for failure to punish the crimes committed

8 between 27 December 1992 and 20 March 1993.

9 Under his second ground of appeal, the Prosecution submits that

10 the Trial Chamber erred in law in convicting Mr. Oric of the crime of

11 failing to discharge his duty as a superior to take necessary and

12 reasonable measures to prevent murder and cruel treatment, instead of

13 finding him guilty of the crimes of murder and cruel treatment that he

14 had failed to prevent.

15 On 7 March 2008, the Prosecution filed a notice of withdrawal of

16 its third ground of appeal pertaining to wanton destruction of Jezestica.

17 The Prosecution's fourth ground of appeal deals with sentencing

18 issues.

19 In its fifth and final ground of appeal, Prosecution alleges two

20 errors of law that have no impact on the verdict of sentence against

21 Mr. Oric but are, in its view, matters of general importance to the case

22 law to the Tribunal. The first alleged error concerns the

23 Trial Chamber's distinction between general and specific obligations to

24 prevent crimes. The second error relates to preemptive destruction of

25 civilian objects.

Page 7

1 Having explained the reasons of appeal, I recall that in the

2 addendum to the order scheduling appeal hearing issued on 10 March 2008,

3 the Appeals Chamber had invited the parties to address first previously

4 identified questions of particular importance during today's hearing. I

5 will not restate these issues now, but would like to stress that the

6 Appeals Chamber's invitations and the tentative scheduling order are made

7 without prejudice to any matter the parties or the Appeal Chamber may

8 like to raise, and they in no way constitute an expression of opinion on

9 the merits of the appeal.

10 On 25 March 2008, both parties accepted the Appeals Chamber's

11 invitation and filed written submissions in response to some of the

12 questions identified in the addendum to the order scheduling appeal

13 hearing.

14 I would now like, as it is custom, to briefly recall the criteria

15 applicable to errors of fact and law alleged on appeal. The appeal is

16 not a trial de novo, and the parties must not merely repeat their

17 respective cases as it was at trial; rather, in accordance with Article

18 24 of the Statute of this Tribunal, they must limit their arguments to

19 alleged errors of law which invalidate the decision or alleged errors of

20 fact occasioning an miscarriage of justice.

21 Additionally, it should be recalled that both parties have an

22 obligation to provide precise references to materials supporting the

23 arguments on appeal. Today and tomorrow this hearing will proceed

24 according to the addendum to the order scheduling appeal hearing issued

25 on 10 March 2008. This means that counsel for the Prosecution will

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1 present its submissions in response to the questions put to the parties

2 by the Appeals Chamber in relation to Mr. Oric's appeal for one hour

3 followed by counsel for Naser Oric for 30 minutes.

4 After a 20-minutes' pause, counsel for the Prosecution will

5 present its argument in reply for ten minutes. From 11.40 to 12.25, we

6 will hear the Prosecution's submission on its appeal. Following a

7 20-minutes' pause, counsel for Mr. Oric will have time to respond for 45

8 minutes, and counsel for the Prosecution will have 15 minutes to reply.

9 There will be a break from 13.45 to 15.15, after which we will reconvene

10 as scheduled.

11 I wish to remind the parties that the Judges may interrupt them

12 at any time to ask questions, or they may prefer to ask questions

13 following each party's submission.

14 Finally, I would like to draw the attention of both parties to

15 the importance of a distinction between, on the one hand, a

16 Trial Chamber's possible failure to make findings of fact and, on the

17 other hand, to the maybe lack of evidence to make certain findings.

18 Having said this, I would now like to invite counsel for the

19 Prosecution to present submissions in response to the Appeals Chamber's

20 question related to Mr. Oric's appeal. The Appeals Chamber open-mindedly

21 will listen to both party's submissions. It goes without saying that no

22 party needs to make use of all the time allotted to it. Experience shows

23 that sometimes it is in favour of each party to prevent the submissions

24 as short and as precise as possible.

25 The Prosecution has the floor, please.

Page 9

1 MS. JARVIS: Thank you, Mr. President and Your Honours. Good

2 morning.

3 Your Honours, the Prosecution's response to the questions raised

4 in the addendum to the Scheduling Order will proceed as follows this

5 morning: First of all, I'll address Your Honours on our response to

6 question 1; Ms. Dahl will follow with argument in respect of question 2;

7 and, finally, Ms. Nabti will follow with our response to question 3,

8 which has not been the subject of a response so far.

9 To turn, then, to question 1 which has posed in the addendum to

10 the Scheduling Order, which concerns the criminal responsibility of

11 Krdzic or other of Oric's subordinates and the evidentiary basis

12 supporting that existing in the trial record.

13 Your Honours, what I intend to do in my submissions this morning

14 is to touch upon three points that arise out of Oric's written

15 submissions of the 25th of March; and, in doing so, I'm going to focus in

16 particular on clarifying the evidentiary basis that we set out in our

17 written submissions of 25 March, in particular that supporting Krdzic's

18 liability.

19 Your Honours, my first point is concerning a matter in paragraph

20 36 of Oric's 25 March submissions, which reflects a misunderstanding that

21 Krdzic's liability rests on a superior responsibility analysis. We say

22 Krdzic's responsibility is properly characterized as aiding and abetting

23 by omission. Your Honours, the Trial Chamber sourced Krdzic's duty to

24 act, not from the existence of a superior/subordinate relationship

25 between himself and the perpetrators of the crimes, but from the duty

Page 10

1 that he owed to protect the prisoners in his custody. So Oric's

2 complaints about the Trial Chamber's treatment of Krdzic as a universal

3 superior with no corresponding subordinate vanish upon a proper reading

4 of the judgement.

5 We submit that the Trial Chamber was right to find the elements

6 of aiding and abetting satisfied in respect of Krdzic, and we refer Your

7 Honours to paragraphs 489 to 496 of the trial judgement where the

8 Trial Chamber sets out its findings that satisfy these elements.

9 First of all, in respect of the duty to act, in paragraph 490,

10 the Chamber found that the Srebrenica military police, having prisoners

11 in their care and custody, were bound to ensure their proper treatment;

12 in particular, the commander of that unit, Krdzic, was obliged to select

13 suitable guards, provide a proper space, and ensure that proper treatment

14 of prisoners at all times.

15 In respect of his failure to fact, in paragraph 496, the Chamber

16 found that Krdzic was conspicuously absent from the prisons. This

17 factor, viewed against the backdrop of the ongoing and pervasive

18 mistreatment of the prisoners, confirms that Krdzic failed to act to

19 protect the prisoners in accordance with his duty. As a result of this

20 failure, he made a substantial contribution to the crimes of murder and

21 cruel treatment in the sense of making the commission of those crimes

22 substantially less difficult.

23 Regarding Krdzic's mens rea, in paragraph 496, the Chamber also

24 finds that there is no reason why Krdzic, in his role as commander of the

25 military police, would not have known about the crimes against the

Page 11

1 prisoners, and that at the very least he must have been wilfully blind.

2 We submit that what the Chamber was saying here is that Krdzic, in

3 failing to act in accordance with his duty to protect the prisoners, was

4 at least aware of the probability that crimes were being committed and

5 that his failure to act would probably assist.

6 Your Honours, this leads me to the second point that I wanted to

7 make in respect of Oric's 25 March submissions, and that is based on the

8 assumption that Krdzic could not be liable as an aider and abettor unless

9 it was shown that he knew of the crimes, and this is reflected in

10 paragraph 24 of those submissions.

11 Your Honours, we say this conflicts with Appeals Chamber case law

12 confirming that, for aiding and abetting, it is sufficient if the accused

13 is aware of the probability that the crimes will be committed; and, in

14 that respect, I point Your Honours to the Ndindabahizi appeal judgement

15 at paragraph 122 and the Blaskic appeal judgement at paragraphs 45 and

16 50.

17 The triumph's findings in respect to Krdzic's mens rea satisfy

18 this standard.

19 On appeal, Oric bears the burden of showing that no reasonable

20 tribunal of fact could have concluded that Krdzic was at least aware of

21 the probability that crimes would be committed. We say the

22 Trial Chamber's findings, as to Krdzic's mens rea, are supported by two

23 factors.

24 First of all, when he took up command of the Srebrenica military

25 police on 22 November, Krdzic must have known that the prisons had been

Page 12

1 previously run under Halilovic's command in a climate of prisoner abuse

2 that needed correcting and monitoring.

3 As the Trial Chamber found, at paragraph 496, Krdzic must have

4 known about Halilovic's personal involvement in killing a prisoner.

5 Krdzic had been a member of the SAF staff since 26 May 1992, and he must

6 have known about this incident and the role it played in the removal of

7 Halilovic from the position of command. This is particularly so, given

8 that Krdzic was the one appointed to replace him.

9 The Prosecution accepts that, as Oric has pointed out in his

10 previous submissions, there is no express reference in Exhibit P84, the

11 memo pad, about the mistreatment of prisoners; but there is an express

12 reference, in respect of the 22 November meeting at page 28, about

13 Halilovic's dismissal and resignation and Krdzic's appointment, and it's

14 reasonable to infer that there was discussion amongst the SAF staff about

15 the reasons for this.

16 And, Your Honours, there is other express evidence where the

17 issue of prisoner mistreatment was discussed among members of the SAF

18 staff; in particular, in his interview, Oric stated that he had spoken

19 with both Hamed Salihovic and Ramez Becirovic, who were members of the

20 SAF staff, about Halilovic's involvement in the killing of a prisoner,

21 and they had specifically agreed that this sort of event would have to be

22 prevented in the future. I refer Your Honours to Exhibit 329, tape 18,

23 page 3; and the Chamber makes a finding on this matter at the judgement

24 at paragraph 550. Of course, the issue of Halilovic's involvement in

25 killing the prisoner was referred for investigation and various steps

Page 13

1 were taken in follow-up. So it was by no means a secret that it had

2 happened.

3 Importantly, Oric also stated in his interview that Krdzic was

4 working together with Salihovic and Becirovic in organizing the prisoner

5 exchange in the October period, and that's Exhibit 329, tape 3, page 5.

6 It's reasonable to infer, given Krdzic's role in the prisoner

7 exchanges in the first period, together with Salihovic and Becirovic,

8 that Krdzic knew about the Halilovic prisoner issue, and more generally

9 that he was aware of the conditions in which the prisoners to be

10 exchanged were kept.

11 Your Honour, the second factor we say is relevant to Krdzic's

12 mens rea is the appalling conditions confronting the Bosnian Muslims in

13 Srebrenica at the time, which was precipitated by actions of the Bosnian

14 Serbs. The risk of abuse against any Serb prisoner who landed in the

15 hands of the Bosnian Muslims at this time must have been palpable to

16 everyone in Srebrenica, especially Krdzic, the very person who had been

17 put in charge of protecting the prisoners' safety.

18 The Trial Chamber expressly found that the severe malnutrition

19 and psychological effect of being under siege were causing the people of

20 Srebrenica to behave erratically, and was an additional reason for taking

21 measures to reduce the vulnerability of the Serb detainees. That's the

22 judgement at 559 and also footnote 1384.

23 Consequently, Your Honours, Krdzic, when he took up command of

24 the military police, was on notice of an unacceptable risk that the Serb

25 detainees in his custody would be mistreated, and this was sufficient to

Page 14

1 rise to the probability threshold required for aiding and abetting.

2 But, Your Honours, even assuming that we remove Krdzic from the

3 picture, the Trial Chamber could equally have founded Oric's

4 responsibility on the criminal culpability of the military police more

5 generally. This leads me to the third point from Oric's 25 March

6 submissions, and that is his complaint that the military police cannot be

7 held responsible for the crimes because they are not a natural person,

8 paragraph 46.

9 We say this misstates the point of the relevant legal principle,

10 which is not to impose some form of corporate criminal responsibility;

11 rather, the point is that it's not necessary to identify by name a

12 particular subordinate who is criminally responsible. It's sufficient to

13 establish that subordinates within a particular group over whom the

14 superior exercised effective command, even if they are not individually

15 identified, bear criminal responsibility; and, in that respect, I point

16 you to the sources cited in footnote 20 of our 25 March filing.

17 Your Honours, it's clear that the military police were in control

18 of the prisoners, and they culpably failed to ensure the proper treatment

19 of those prisoners. The evidence establishes that during the second

20 period, when the crimes that we are concerned with occurred, the military

21 police were operating out of the police station building where the

22 prisoners were kept for at least part of the time, and that they were

23 recording and arriving the detention of the Serb detainees, taking them

24 from the police station for interrogation and returning them afterwards.

25 I refer Your Honours to the trial judgement at paragraph 485 in respect

Page 15

1 of that evidence. They must have been aware of the physical signs of

2 mistreatment of the prisoners, and they failed to carry out their duty to

3 ensure their proper treatment.

4 Your Honours, in our 25 March submission, we have also included

5 an alternative basis on which we say the Trial Chamber could have based

6 Mr. Oric's criminal responsibility under Article 7(3) of the Statute, and

7 that is in respect directly of the guards who were under his effective

8 control.

9 Your Honours, the Trial Chamber was not satisfied that the guards

10 were identified as members of the military police, but we say it should

11 not have stopped its inquiry there. Regardless of whether these

12 individuals were identified as members of the military police or not, the

13 real question was, by virtue of their function and the role that they

14 played within the chain of command under Oric, were they under his

15 effective control. We say, if the Chamber had asked itself this

16 question, the only answer it could have reached would be: Yes. Oric had

17 a de jure relationship of effective control over the guards.

18 We've given more detailed reasons in our 25 March filing, but in

19 essence, Your Honours, it would be unreasonable to conclude that Oric, at

20 the top of the command hierarchy having responsibility for the prisoners,

21 had put the prisoners in the direct custody of individuals that he could

22 not control. The trial record supports the conclusion that he could

23 control them, as one would suspect, but he chose not to do so.

24 Your Honours, this concludes my submissions on question 1. If

25 you have any questions, I will be happy to deal with them now, or

Page 16

1 alternatively Ms. Dahl will take the floor.

2 JUDGE SCHOMBURG: Judge Liu, please.

3 JUDGE LIU: Madam Prosecutor, from your statement, could I arrive

4 at the conclusion that -- are you suggesting that the Defence got

5 confused with two modes of the liability; one is the aiding and abetting,

6 the other is command responsibility in relation to the relationship

7 between Krdzic and the real perpetrator in Defence filings on the

8 25th March?

9 Thank you.

10 MS. JARVIS: Your Honour, we do suggest that, based on paragraph

11 36 of Mr. Oric's submissions where he refers to this problem of the

12 Trial Chamber's treatment of Krdzic as a universal superior, that it's

13 implicit in that he is interpreting the judgement as employing superior

14 responsibility as the legal characterization of Mr. Krdzic's

15 responsibility; whereas, we say, if the judgement is read in context in

16 proper light, it's clear that that wasn't the basis for saying that

17 Mr. Krdzic was criminally responsible, but that his responsibility rests

18 on aiding and abetting by omission.

19 JUDGE LIU: Thank you.

20 JUDGE SCHOMBURG: May I ask you, you put to us two alternatives

21 on which basis Mr. Oric should stay convicted, so could you please point

22 us to the notice of appeal where exactly you put the other party and the

23 Appeal Chamber on notice that you are challenging the findings or

24 identifying errors of fact or of law committed by the Trial Chamber; in

25 particular, in that what you now call in your alternative pleading, as

Page 17

1 you said, leaving Krdzic out of the picture for a period of time.

2 MS. JARVIS: Your Honour, certainly this is not a matter that the

3 Prosecution raised in its notice of appeal, and our position is that it

4 was not required to do so. If we had raised it at the time of the appeal

5 stage, it would have been an error without impact on the verdict, because

6 of course the Chamber had reached the same conclusion based on a

7 different process of reasoning.

8 When Mr. Oric appealed the Chamber's findings and challenged the

9 theory of liability applied by the Chamber, as part of our response to

10 Mr. Oric's appeal, we did, indeed, state our position that, even if he

11 was correct in establishing an error on the existing theory of liability,

12 that his conviction would equally have been sustained on the basis that

13 he was responsible directly for the guards. I point Your Honours to the

14 Prosecution's response brief at paragraphs 131 to 132.

15 Your Honours, we submit that a respondent to an appeal must be

16 able to put forward additional bases upon which to sustain the same

17 conclusion already reached by the Chamber in the event that Your Honours

18 were to decide the Trial Chamber's reasoning was, in fact, incorrect.

19 What Your Honours are most concerned with is to assess whether at

20 the end of the day the conviction in this case is safe and is justified.

21 We submit that this is reflected in the approach that the Appeals Chamber

22 has taken in other cases; and, in particular, I would point you to the

23 Blaskic appeal judgement where the Appeals Chamber on review determined

24 that Blaskic's conviction for ordering the use of prisoners as human

25 shields was not safe, but that there was an alternative basis based on

Page 18

1 his omission to act which would justify that conclusion and the Appeals

2 Chamber sustained it on that basis.

3 But my colleague Ms. Nabti will address you further in respect of

4 those relevant legal precedents.


6 But, nevertheless, because this might be crucial, is it your

7 point that when the Defence raises an appeal and you answer in response,

8 that this amounts to an appeal of your own, or wouldn't it be correct to

9 expect the Prosecution to point itself to an alleged error of the

10 Trial Chamber already in the notice of appeal?

11 MS. JARVIS: No, Your Honour. We submit that it is not incumbent

12 upon the Prosecution to raise in the notice of an appeal an error which

13 based on the judgement as it stands had no impact on the verdict. If the

14 Chamber has reached the same conclusion that we would advocate for under

15 the alternative basis, on the basis that they've used in the judgement,

16 then at that stage it is a harmless error.

17 It's only at the point where Your Honours, if Your Honours reach

18 the point of being satisfied that the existing basis is erroneous, it's

19 at that point that the issue arises. We say we have properly raised it

20 in the response brief. The Defence have had notice of this additional

21 basis of liability; and, of course, Your Honours' questions have given a

22 further chance to the parties to explore it.

23 JUDGE SCHOMBURG: Thank you. Maybe I will come back to this

24 question at a later point in time. Leaving for a second the role of

25 chairing this Appeals Chamber, as a personal note, I think in the civil

Page 19

1 law system, this would be without any problem that we have to take

2 together all the submissions of both parties. But here I think we need,

3 maybe later during the hearing, further clarification on this formal

4 approach, whether the response by the Defence can amount finally to an

5 appeal on the part of the Prosecution.

6 But for the time being, thank you so much. Maybe you can dwell

7 on this later. Thank you.

8 MS. DAHL: Good morning, Your Honours. May it please the Court.

9 I will address the second question and endeavor to be brief so as to

10 allow my colleague, Ms. Nabti, sufficient time to address orally

11 question 3 which has not had the benefit of a written submission.

12 In the second question, the Chamber asked what evidence in the

13 trial record supports or rebuts the allegation that Naser Oric knew or

14 had reason to know that the military police detained Serbs and that his

15 subordinates aided and abetted crimes against them.

16 In paragraph 560 of the trial judgement, the Trial Chamber found

17 that Mr. Oric knew of the cruel treatment and murder of prisoners between

18 September and October of 1992, and that this actual knowledge gave him

19 reason to know of the four murders and cruel treatment of five others at

20 the police station and the building between December 1992 and March 1993.

21 The Trial Chamber considered that Oric must have seen the

22 injuries visibly apparent when he visited the detainees. They were

23 covered with blood, and some could not stand. These severe injuries

24 could not have happened in a custodial setting without the involvement of

25 the guards and their superiors, either by inflicting the injuries

Page 20

1 themselves or failing to protect the prisoners against outsiders coming

2 in to treat them cruelly.

3 The Trial Chamber also found that specific information concerning

4 acts of murder and cruel treatment was readily available from Mr. Oric's

5 subordinates, men that Mr. Oric knew were charged with the care and

6 protection of the prisoners, their interrogation and detention while the

7 prisoners awaited exchange.

8 Mr. Oric did not concern himself with these matters, despite his

9 position as commander of the Srebrenica armed forces, his knowledge of

10 the obligation to care for the safety and well being of prisoners of war,

11 and his admitted appreciation of the obvious risk of abuse these

12 prisoners faced at the hands of soldiers and civilians alike.

13 The injuries sustained by the detained Serbs were visible and so

14 severe that Mr. Oric must have noticed them when he saw the prisoners.

15 One need only see the prisoners to know that they were being cruelly

16 mistreated.

17 Here we see Veselin Sarac, the way he looked the day he was

18 exchanged. These are frames from the video admitted into evidence

19 as P98. Fellow detainee Radic testified that this was how Mr. Sarac

20 looked the day he was detained. If I may return to the first picture, so

21 that all the members of the Bench can see it. This was from 16 October

22 1992.

23 JUDGE SCHOMBURG: Am I correct that it was two minutes and four

24 minutes later?

25 MS. DAHL: I'm sorry. I do not understand the question.

Page 21

1 JUDGE SCHOMBURG: If you could move backwards to the first

2 picture, please, I think I read - yes, you can see it - 1524, 1526, 1530.

3 So this was a row of pictures taken at the same time?

4 MS. DAHL: Yes, Your Honour. These are still frames taken from

5 the video. Rather than play the entire video, I thought it appropriate

6 to simply reflect the extent of the injuries that were visibly apparent

7 from Mr. Sarac the day he was exchanged.

8 JUDGE SCHOMBURG: But before leaving this picture, where in the

9 judgement can you find any finding or where in the appeal record can you

10 find any evidence that the injuries that led to this picture were -- or

11 that Mr. Sarac received these injuries in the detention unit and not

12 during the combat before he was arrested?

13 MS. DAHL: The victim in this instance, Mr. Sarac, did not

14 testify, but several of the prisoners who were in detention with him did

15 testify; and the Trial Chamber, in making findings about Mr. Sarac,

16 relied on the testimony of Messrs. Radic and Zigic. They indicated that

17 he was beaten in the -- while he was detained and that he looked like

18 this the day he was exchanged. They were also beaten and described what

19 had happened to them.

20 JUDGE SCHOMBURG: Thank you.

21 MS. DAHL: The Trial Chamber also considered that Mr. Oric had

22 the opportunity to see Sarac in this condition. He took him out with him

23 to put him on the radio during negotiations for a prisoner exchange. The

24 transcript of the negotiations is at P97. The negotiations were

25 intercepted and recorded. That is in evidence at P97; the translation is

Page 22

1 at P97.E.

2 At trial, Mr. Radic, who was detained with Sarac, confirmed that

3 Sarac was, in fact, taken out to participate in the negotiations. This

4 testimony is found at the transcript at page 3567. Radic testified that

5 Oric saw them the night before they were exchanged.

6 JUDGE SCHOMBURG: May I interrupt you. Judge Liu has another

7 question.

8 JUDGE LIU: I'm sorry to interrupt you. But however could I put

9 you a very simple question and that is: What the superior should have to

10 know. In your case from your presentation up to now, it gives me the

11 impression that the superior should have to know -- should have the

12 reason to know the crime has been committed as distinct from the reason

13 to know the subordinate's criminal conduct is sufficient to hold an

14 accused responsible under Article 7(3) of the Statute. Is that your

15 position?

16 MS. DAHL: In the context of crimes such as these that occur in a

17 prison setting, they are one and the same. When prisoners who are under

18 guard and kept in locked cells are covered with blood, have had teeth

19 broken and extracted, are bruised, and, indeed, as Mr. Zigic testified

20 had fresh blood, when the person in whose care these prisoners have been

21 entrusted sees this, this information is sufficiently alarming that he

22 should investigate further.

23 Prisoners cannot be cruelly mistreated in a locked environment

24 without the assistance of the person at the door. The visible injuries

25 of these prisoners and the death of some raises the strong inference that

Page 23

1 either the guards are perpetrating the criminal mistreatment and

2 inflicting the injuries that accuse the death, or that they are assisting

3 others to cruelly mistreat the prisoners by letting them in.

4 The testimony of the prisoners was that they were kept in a

5 locked cell under guard, that there were bars on the windows, that their

6 movements were controlled. One testified that whenever a particular

7 guard showed up -- a soldier showed up, they gave him the key, Beli, and

8 that he was able to take them. The prisoners said that they were beaten

9 when they were allowed into the hallway to go to use the lavatory, and

10 that some testified also that they were beaten during the interrogations

11 as well.

12 This point addresses, of course, question four that was put to

13 the Prosecution. Once a superior knows that his detainees have been

14 assaulted or murdered, by that very fact, he needs to investigate and

15 find out how that happened. The controlled environment should protect

16 the prisoners from outsiders' abuse. This is the same situation

17 confronted by the Krnojelac Trial Chamber, which found that Krnojelac had

18 reason to know of the involvement of the guards in the crimes against the

19 detainees there. The guards were in direct contact with and controlled

20 the detainees. Therefore, the Trial Chamber in Krnojelac considered that

21 some of them must have been involved. That finding was at paragraph 318

22 of the trial judgement.

23 The Appeals Chamber agreed, finding that knowledge of one act of

24 torture against a prisoner was sufficiently alarming information so as to

25 have alerted Krnojelac to the risk that more acts of torture were being

Page 24

1 committed or were about to be committed. That finding in the appeals

2 judgement can be found at paragraph 169.

3 JUDGE LIU: So your position is that Mr. Oric had a reason to

4 know that his subordinates aided and abetted by omission the mistreatment

5 of the detainees; am I right?

6 MS. DAHL: Yes.

7 JUDGE LIU: Thank you.

8 JUDGE SCHOMBURG: To make the picture complete, is there any

9 finding that Mr. Oric himself saw the situation in the detention camp, in

10 particular when Mr. Halilovic was no longer in office and replaced by

11 Mr. Krdzic?

12 MS. DAHL: The Trial Chamber imputed knowledge to Mr. Oric based

13 on the actual information that he knew about during September and October

14 of 1992. The Trial Chamber found, with respect to the cruel treatment

15 and murder between December 1992 and 1993, that Mr. Oric did not avail

16 himself of the readily available information from the persons, his

17 deputies, who he knew were in contact with the detainees. For instance,

18 the Trial Chamber rejected as not credible Mr. Oric's denial of knowledge

19 that there were Serbs being detained at the building. That is at

20 Trial Chamber paragraph 554.

21 He knew that his deputy frequently visited detainees there.

22 Mr. Tursunovic was involved in checking on the detainees' conditions.

23 Many of the prisoners testified that Mr. Tursunovic saw them frequently

24 and inquired as to their well being. Mr. Oric was also present at a

25 meeting in December 1992 where the use of a building as a prison or a

Page 25

1 detention facility was discussed.

2 The Trial Chamber considered that Mr. Oric simply didn't concern

3 himself with the well being of prisoners because he had, in his view,

4 more important matters to attend to. These findings are at paragraphs

5 558, 559, and the ultimate conclusion is reached at 560.

6 JUDGE SCHOMBURG: Yes. This brings me to the point raised by

7 your colleague, Ms. Jarvis, when she submitted that the conspicuous

8 absence or the wilful blindness of Mr. Oric amounts to the awareness of

9 the probability which is a test in both Ndindabahizi and Blaskic.

10 Is it your both that indeed conspicuous absence and wilful

11 blindness, and you just mentioned that he had to deal, first of all, with

12 other matters, this suffices to fulfil the test as set out in

13 Ndindabahizi and Blaskic?

14 MS. DAHL: Before I answer your question, I think that

15 Ms. Jarvis's submission pertained to Mr. Krdzic's wilful blindness. But,

16 in this instance, Mr. Oric is liable because he had actual knowledge of

17 sufficiently alarming information that triggers a duty to investigate, to

18 further inquire. When he sees prisoners beaten and bloody, he knows that

19 something is going terribly wrong in their detention. In his interview,

20 he admitted knowing of the risk of retaliation and reprisals faced by

21 prisoners. In discussing the removal of Mr. Halilovic, he acknowledged

22 the difficulty of imprisoning Halilovic for, in his view, killing a

23 Chetnik, because how could he explain to his people what the difference

24 was once that Chetnik became a prisoner.

25 In this, in the area of care and protection of prisoners of war,

Page 26

1 there is a specific, affirmative obligation to make sure that the

2 prisoners are well-treated. There needs to be a system of monitoring in

3 place. Commanders need to make themselves aware of what is happening to

4 ensure their safety. It is a very dangerous time for prisoners, and

5 international law requires that they be safe.

6 In this instance, these people, the prisoners, faired even worse

7 under Krdzic's tenure than they did under Halilovic. Where Mr. Oric had

8 turned his attention to matters he considered more important in his view

9 than checking on his prisoners, he fails in his duty to investigate the

10 alarming information that the Trial Chamber found he had actual knowledge

11 of.

12 JUDGE SCHOMBURG: Thank you very much.

13 MS. DAHL: At this point, I would like to turn the proceedings to

14 Ms. Nabti to address the next question. Thank you.

15 MS. NABTI: Your Honours have asked what the appropriate course

16 of action would be if you were to find that the Trial Chamber failed to

17 make the proper factual findings on legal elements required for Oric's

18 conviction under Article 7(3) of the Statute. The Prosecution responds

19 that, according to the jurisprudence of the Tribunal, the appropriate

20 course is to determine whether the Trial Chamber's ultimate findings with

21 respect to Oric's criminal conviction are sustained on the trial record.

22 This approach is consistent with the Appeals Chamber's corrective

23 function under Article 25 of the Statute, which includes the discretion

24 to revise the decisions taken by the Trial Chamber where appropriate. It

25 also accords with the Appeals Chamber's ultimate role: To prevent

Page 27

1 miscarriages of justice. This applies both with respect to safeguarding

2 the rights of the accused and with respect to ensuring that verdicts that

3 are well-supported by the evidence are upheld.

4 An acquittal is not in the interests of justice where the

5 evidence proves the legal elements underline the conviction. In making

6 this assessment, the Appeals Chamber may consider factual evidence in the

7 trial record, in addition to factual findings referred to in the trial

8 judgement. To this end, the parties have directed the Appeals Chamber to

9 the portions of the trial record they deem relevant.

10 The Defence have urged that, if the Appeals Chamber finds that

11 the Trial Chamber convicted Oric without making proper findings, it must

12 reverse his convictions and find him not guilty. This is incorrect

13 because reversal of a conviction is not appropriate where evidence

14 supports the conviction. The evidence may sustain a conviction even

15 where the Appeals Chamber finds that the Trial Chamber failed to make

16 proper findings on that evidence.

17 With respect to the Defence's concern that the Appeals Chamber

18 would be sitting at a second Trial Chamber, in assessing whether the

19 Trial Chamber's findings on Oric's criminal responsibility are sustained

20 on the trial record, the Appeals Chamber still owes deference to the

21 Trial Chamber's factual findings and evaluates the evidence --

22 THE INTERPRETER: Would the counsel please slow down.

23 MS. NABTI: -- in that context.

24 This does not preclude the Appeals Chamber from performing its

25 corrective function and revising the decision of the Trial Chamber where

Page 28

1 it has made improper or inadequate findings; rather, this Chamber has

2 found that the appropriate course of action in such a case is to

3 determine whether the conviction is sustained on the trial record.

4 This is the case both where the Appeals Chamber finds that the

5 Trial Chamber has failed to make clear and complete findings on each

6 legal element required for a conviction and where it finds the

7 Trial Chamber has not properly addressed the elements of the appropriate

8 theory of criminal responsibility or mode of liability. With Your

9 Honours' indulgence, I would like to touch briefly on a few examples.

10 Where the Trial Chamber has failed to make clear and express

11 factual findings on each element of the crime, the Appeals Chamber has

12 found it appropriate to ascertain whether all legals were, indeed,

13 established on the trial record. As you will recall, in Kordic, the

14 appellant had argued that the Trial Chamber had committed errors of law

15 by failing to make explicit findings and give a reasoned explanation with

16 respect to each necessary element of each crime committed.

17 The Appeals Chamber agreed and found, at paragraph 384, that the

18 Trial Chamber did not make specific explicit factual findings with regard

19 to each element of the crimes; although, the Trial Chamber had expressly

20 concluded that the crimes were established.

21 Your Honours, I refer you to paragraph 386 of the appeal

22 judgement which should be coming up on the screen before you, and I quote

23 in relevant part: "The Appeals Chamber considers ... that this does not

24 automatically lead to a dismissal of the charges and ... that, in this

25 particular circumstance, the issue before it is to establish whether the

Page 29

1 Trial Chamber's findings that the crimes were established are sustained

2 on the record."

3 This Chamber found, that under the circumstances, it was required

4 to re-assess a plethora of evidence in order to find out whether or not

5 all constituent elements of the crimes were established during trial.

6 For example, the Trial Chamber had failed to make specific findings with

7 respect to the elements of the crime of unlawful attack on civilians.

8 There was no finding that civilians were actually killed in a particular

9 attack.

10 At paragraphs 410 through 413, the Appeals Chamber looked to the

11 trial record to assess whether a reasonable trier of fact could have

12 concluded beyond a reasonable doubt that numerous civilians were targeted

13 and killed in the relevant time and location. In its assessment, the

14 Appeals Chamber made factual findings beyond those expressly made in the

15 trial judgement. The Appeals Chamber ultimately, concluded at paragraph

16 415, that on the basis of this evidence that was before the

17 Trial Chamber, a reasonable trier of fact could come to the conclusion

18 beyond reasonable doubt that the elements of the crime had been met.

19 Another type of case where the Trial Chamber has failed to make

20 proper findings on a particular -- is a case where the Trial Chamber has

21 failed to make proper findings on a particular theory of criminal

22 responsibility or mode of liability. For example, in the Aleksovski

23 appeal, at paragraphs 170 and 171, the Appeals Chamber found that the

24 Trial Chamber did not make necessary findings regarding Aleksovski's

25 individual responsibility under Article 7(1) of the Statute for

Page 30

1 mistreatment of prisoners outside the compound.

2 According to the appeals judgement, the Trial Chamber did not

3 make these findings because it misconstrued the Prosecution's theory of

4 the accused's individual responsibility under Article 7(1), in that it

5 evaluated the evidence based on Aleksovski's direct participation in the

6 criminal act, rather than participation by way of aiding and abetting.

7 In evaluating this deficiency, the Appeals Chamber noted that

8 considerable evidence had been provided by the prisoners of their

9 mistreatment when they were digging trenches outside the prison. The

10 Appeals Chamber then recounted and relied upon this testimony in

11 paragraphs 165 through 169.

12 The Trial Chamber had considered the testimony of these witnesses

13 elsewhere in the trial judgement, but it had not made express factual

14 findings with respect to their testimony regarding mistreatment outside

15 the prison. The Trial Chamber had found that the poor physical state of

16 the prisoners who returned from digging trenches had established that

17 Aleksovski was aware of the traumas suffered by the detainees.

18 The Appeals Chamber's conclusion should be appearing on your

19 screen. It found at paragraph 172, I quote: "The Appeals Chamber

20 accepts that the only finding which could reasonably have been made by

21 the Trial Chamber, in light of its other findings, is that the appellant

22 was individually responsible for mistreatment by the HVO soldiers outside

23 the prison by way of having aided and abetted in it. Any finding to the

24 contrary would have been unreasonable in those circumstances. The

25 Appeals Chamber accordingly makes that finding."

Page 31

1 A further example, in Blaskic, this Court found, at paragraphs

2 659 to 670 of the appeal judgement, that the Trial Chamber's reasoning in

3 convicting Blaskic under Article 7(1) for ordering the use of civilian

4 detainees as human shields was flawed, yet it did not undermine the

5 conviction. Despite finding that there was a lack of evidence for

6 ordering, the Appeals Chamber affirmed Blaskic's conviction under Article

7 7(1) as "correct in substance," based on the alternative theory of

8 criminal responsibility through omission.

9 I note that in Blaskic the Prosecution did not appeal the

10 Trial Chamber's failure to initially convict Blaskic on the basis of

11 omission liability.

12 In confirming this conviction, under Article 7(1) the Appeals

13 Chamber relied on the Trial Chamber's findings regarding Blaskic's

14 knowledge that human shields were being used. It then made additional

15 findings on the remaining elements of Article 7(1) through omission,

16 relying on the mode of liability through omission based on the trial

17 record.

18 I refer you again to your screens for the Appeals Chamber's

19 conclusion. At paragraph 670, it stated: "The Appeals Chamber concludes

20 that the appellant's conviction for the use of human shields ... was

21 correct in substance; however, in the absence of proof that he positively

22 ordered the use of human shields, the appellant's criminal responsibility

23 is properly expressed as an omission pursuant to Article 7(1) as charged

24 in the Second Amended Indictment. The Appeals Chamber accordingly finds

25 that the elements constituting the crime of inhuman treatment have been

Page 32

1 met. There was an omission to care for protected persons which was

2 deliberate and not accidental, caused serious mental harm, and

3 constituted a serious attack on human dignity."

4 Although those particular findings had not been made by the

5 Trial Chamber, Blaskic's conviction under Article 7(1) was affirmed on

6 this alternative basis.

7 Finally, Your Honours will find another such example in the Simic

8 appeal, in which this Chamber rejected the Trial Chamber's finding of

9 criminal responsibility under Article 7(1) pursuant to a theory of JCE,

10 yet then found Simic responsible as an aider and abettor based on the

11 Trial Chamber's findings as supported by other evidence in the trial

12 record. I would point Your Honours to findings at paragraphs 75 through

13 77, 130 through 138 of the appeal judgement, and footnote 391.

14 In sum, should the Appeals Chamber find that the Trial Chamber

15 failed to make the proper factual findings on the legal elements required

16 for Oric's conviction under Article 7(3) of the Statute, it should then

17 assess whether those elements are otherwise met based on the

18 Trial Chamber's findings and the underlying trial record.

19 Those are my submissions unless you have any questions.

20 JUDGE SCHOMBURG: I can see no questions. Thank you for staying

21 exactly in time because the Prosecution started ten minutes later.

22 Thank you for this, and now we have the time for the Defence to

23 respond.

24 MR. JONES: Yes. Thank you, Your Honour. May it please Your

25 Honours, in the next hour, I'm going to deal with five main issues.

Page 33

1 First, I'm going to deal with the inaccuracies in the Prosecution's

2 references to the evidence, both today and in their written submissions;

3 second, I'm going to identify the core fallacies in the judgement which

4 also re-appear in the Prosecution's arguments; and, thirdly, I'm going to

5 discuss the guards as a topic because that's the key issue in many ways,

6 who were the guards, who were they under in terms of hierarchy; fourth,

7 the Prosecution's new theory - and I emphasise that, new theory - of

8 aiding and abetting by omission which was not in the indictment, which

9 was not a trial issue, and which was in any event not proved.

10 And at the outset, I would say in response to the first question

11 by Judge Liu, we're certainly not confused about aiding and abetting by

12 omission or liability under 7(3). We're having to respond to a

13 Trial Chamber judgement which doesn't make the basis of liability clear,

14 and the Prosecution themselves admit that, it's in their response brief,

15 paragraph 126: "The Trial Chamber did not expressly designate the legal

16 classification for the responsibility of the SMP for the crimes of murder

17 and cruel treatment."

18 So the Prosecution, themselves, admit it's not clear in the

19 judgement. The Prosecution are coming up with new theories all the time.

20 It's a different case we hear today from the case which was in the

21 indictment. So we're having to respond to all these different possible

22 arguments, possible bases of liability. We're not confusing anything.

23 It's what we call a belt and braces approach. We're making sure we've

24 covered all the bases.

25 In relation to -- I'm sorry, my fifth topic will be dealing with

Page 34

1 the Prosecution's argument that the guards were Oric's subordinates even

2 if they weren't members of the MP, and that is in your argument, too. In

3 relation to a question asked by Your Honour Judge Schomburg, and the

4 suggestion by the Prosecution that they can defend the conviction on a

5 different basis from that which is in the judgement, that might be the

6 case, but that alternative basis still has to be in the indictment, it

7 still has to be a trial issue.

8 It's not the case that the Prosecution didn't need to raise it in

9 their appeal, because consider that argument that the guards were

10 subordinated of Oric even if they weren't in the MP. That would be a

11 ground for their ground 1, their appeal, and they didn't put it in their

12 notice of appeal. So they thought of it later, and they should have

13 raised it in their own appeal.

14 That also goes to question 3 and its idea that the Appeals

15 Chamber can make findings and see whether the decision is sustainable.

16 Blaskic, in Blaskic, the indictment contained charges brought under 7(1)

17 and 7(3), so it was in the indictment. We're in a totally different

18 situation here where you're being invited to uphold a conviction on a

19 place which was not ever pleaded.

20 Now, because time is so short, I fear my -- I may run out of time

21 before correcting all the inaccuracies in the submissions, oral and

22 written, of the Prosecution. So I'm just going to give a few examples,

23 and I trust and know that the very competent representatives of the

24 Chamber or assistants, rather, will check the references very carefully

25 page by page, because appearances can be very deceptive. Perhaps there's

Page 35

1 know more eloquent deception than the video which we saw, because anyone

2 seeing that would think that's terrible that they were in that shape and

3 that Oric saw them in that condition. But it's completely false, and you

4 know it's completely false.

5 If you go back to the trial record, you'll see two things.

6 Firstly, you'll see that Zigic -- sorry, Radic repeatedly said that there

7 were no visible injuries on their faces. This is at P3619 to 3622, and,

8 in fact, the transcript will appear on your pages as we go along, where

9 he was asked -- or he confirmed, rather, that it was dark in the morning

10 and the evenings in the cells.

11 "Q. So in fact it was very hard to see any real detail of

12 people's faces in the cell?

13 "A. It was difficult to see ..."

14 We need to switch to the Defence -- we need to ask the technical

15 booth to switch so we can see the transcript, but I'm going to, given the

16 shortness of time -- Now, there it is.

17 "Q. So in fact it was very hard to see any real detail of

18 people's faces in the cell?

19 "A. It was difficult to see, that's one thing; secondly, there

20 were no visible injuries on our faces."

21 He said it again: "You couldn't discern the details of injuries

22 on our faces." That's at 3629: "Our faces." He wasn't just speaking of

23 himself, and he explained why.

24 This is at 3613: "In terms of beatings, you also told us

25 yesterday that Kemo and the others hit you on the chest mostly to avoid

Page 36

1 leaving visible marks?

2 "A. Yes, I did state that and that is true.

3 "Q. My question is: Isn't it right, then, that the people who

4 beat you didn't want there to be signs that they were beating you?"

5 The answer is: "Probably."

6 Then in this video, P98, both Zigic and Radic - one of them

7 appeared in that video - testified that the detainees were cleaned up

8 that morning before being exchanged, and that the worst injuries actually

9 occurred on that day. And you'll find that at Zigic, 16/12/04, T3319.

10 "Q. Mr. Radic doesn't seem to have any bruises or injuries on

11 his face; do you agree?"

12 THE INTERPRETER: Would you mind slowing down. Thank you.

13 MR. JONES: "A. I agree that I do not see any because in the

14 morning we were told wash off everything down to the last drop of blood

15 from ourselves."

16 And so all the injuries you see, all the blood occurred after the

17 last occasion on which they would allegedly have been seen by Oric."

18 THE INTERPRETER: Could counsel please slow down. Thank you.

19 MR. JONES: I'm told to slow down. I'm going as slowly as I can.

20 They testified, Zigic and Radic, that the worst wounds of the

21 detainees occurred on the day of their release, and we'll provide the

22 reference to that in a moment. So, in fact, when you look at the

23 Trial Chamber's judgement, you'll see that they weren't necessarily

24 satisfied that Oric had seen any of these signs of injuries. And if you

25 look at footnote 1500 of the judgement, the Chamber says: "However, even

Page 37

1 if one were to assume arguendo that the accused did not have actual

2 knowledge of cruel treatment, the conclusion would still be that from the

3 moment he became aware of the killing of Kukic he was on notice."

4 So they've left open the possibility that Oric did not have

5 actual knowledge of mistreatment, and so evidently the Chamber was not

6 necessarily satisfied that he had seen his signs of injury.

7 Some other matters which are in the written submissions and

8 raised today. Paragraph 12 of the Prosecution's written submissions,

9 they say: "Witnesses also confirmed that Oric visited the detainees at

10 the hospital, where they were under armed guard."

11 And they cite Mujkanovic and Ivanovic. But Ivanovic said nothing

12 at all about Oric visiting detainees at the hospital, and you can see

13 that for yourself at T4086 to 4088. And Mujkanovic in fact, denied

14 knowing of any Serb detainees. That's at T5000. So his later answer has

15 to be seen in that light. I mention this illustrations just to show how

16 deceptive their submissions can be of the obvious knowledge on the part

17 of Oric or the others.

18 As far as Krdzic is concerned, Oric in his interview never said

19 Krdzic was physically present at an exchange of prisoners; so for any

20 assumption that he must have known of injuries, that evaporates, too.

21 Nikolic didn't say that Oric "participated in the

22 transportation -- his transportation out of the field to Srebrenica,"

23 that's paragraph 14 of the written submissions, rather, they shared part

24 of a journey together to Potocari.

25 Just one more example. P97, which was referred to, allegedly a

Page 38

1 tape of Oric negotiating about the release of prisoners, according to the

2 Prosecution's own records "has not been authenticated." That's D162 that

3 shows that.

4 And Sarac -- sorry, the voice was not recognised as Oric's by

5 Radic, even though Radic had allegedly spoken to Oric and therefore knew

6 his voice. So we said at trial and we still say that transcript

7 shouldn't even say Naser Oric.

8 And so these details matter -- one last detail Tursunovic,

9 there's no evidence that he reported to Oric about prisoners, and you see

10 that in the judgement at paragraphs 523, 527, and 548. So the idea again

11 suggested today that he had notice through Tursunovic was not found to be

12 a fact by the Chamber. And, in fact, there's the classic catch-22 with

13 Tursunovic that if he did inform Oric, then Oric is going to be held of

14 notice; and if he didn't, that's seen as evidence that Oric didn't take a

15 sufficient interest in the prisoners. I'll come back to that catch-22

16 later.

17 Now, another preliminary remark is this, I've touched on already,

18 but every time the Prosecution presents it's case, we see a different

19 case being presented. You've seen one in the indictment, a different

20 case in the appeal filings, and really a different case today. And for

21 us nearly two years after the trial to have to respond to new legal

22 theories is simply not right, and it's said that well now that this issue

23 has been raised we can respond to it. But it was not -- this is a trial

24 about evidence, it's not about armchair theorizing: Well, surely this

25 would have been the case and that would have been the case. Those are

Page 39

1 questions to put to the witnesses. It's a question of hard, cold

2 evidence, and that's not we've not seen today.

3 So start off, I want to set out - it's a very useful German word,

4 leitmotif - with certain light motifs which appear in the judgement and

5 in the Prosecution's arguments. I think it is useful to look at some of

6 this issues conceptually.

7 The first leitmotif is what I call a daisy chain criminal

8 liability. It's the liability where Oric is at best three or four steps

9 removed from the actual perpetrators, and we have a slide to illustrate

10 that; Oric to Krdzic, Krdzic to other military police members, who are

11 responsible for maybe guards, responsible for maybe perpetrators, and

12 with the most attenuated forms of criminal liability in between, not in

13 aiding and abetting, but this aiding and abetting by pure omission.

14 Without wishing to sound flippant, it's like the quaint Edwardian

15 song: I dance with the man, who danced with a girl, who danced with

16 Prince of Wales. It can go on forever, this daisy chain of liability.

17 But it's a fallacy because that amount of remoteness is not a reasonable

18 basis for conviction, and the Celebici Appeals -- sorry, the

19 Trial Chamber was clear on that. They said: "Great care must be taken

20 lest an injustice be committed and holding individuals responsible for

21 the acts of others where the situation of the link of control is absent

22 or too remote." That's paragraphs 377 to 378.

23 So where the link is absent or too remote. We say an injustice,

24 a deep injustice, has been done here with an alleged link and it's absent

25 altogether or at least is at the very remotest.

Page 40

1 The second leitmotif or fallacy is the universal superior

2 fallacy, and we maintain that that fallacy runs through the judgement and

3 the Prosecution's arguments. It's the fallacy of a superior being liable

4 without any identifiable subordinate under him who committed crimes.

5 Let's be absolutely clear at the outset that we're not saying, we've

6 never said, that it has to be someone identified by name. It would be a

7 misrepresentation of our position to say that we're taking that position.

8 We know full well that's not required.

9 But this must be identified by someone, so at least you even know

10 that he or she exists. You have to know at least two things about a

11 subordinate: One, that he is a subordinate of the accused; and two, that

12 he committed crimes. Without that, you don't have command

13 responsibility.

14 The Prosecution and the Trial Chamber is not in a position to say

15 that of anyone in this case. As I say, not identified by name but just

16 someone you can point to and say, ah, that is the subordinate who Oric is

17 responsible for. They've tried to do it with Krdzic; and for reasons

18 which we've tried to set out and we'll continue to set out, Krdzic is not

19 someone of whom it can be said that he attracted any liability.

20 Let this also be very clear that Krdzic was absolutely not an

21 issue at trial. You'll see we have a list of the references to Krdzic,

22 and most of them are about him being a TO commander in Osmace. It simply

23 wasn't an issue. Witnesses weren't asked about what Krdzic knew or

24 didn't know or what Krdzic did or didn't do. Prisoners or detainees

25 weren't asked did Krdzic visit. They didn't show photographs to

Page 41

1 detainees to establish whether Krdzic visited or not. There's a complete

2 evidential void, and that's why the Prosecution now has to speculate

3 everyone in Srebrenica knew the risk. That's the sort of argument they

4 have to make, because if everyone knew, well, then Krdzic must have

5 known.

6 So that evidence was not produced and that's why the Chamber

7 clearly held that none of the guards or perpetrators could be even linked

8 directly to Oric, never mind being military police. You have a quote at

9 paragraph 530 that says: "As already stated, the identity of the guards

10 and of the individuals who entered the Srebrenica police station and the

11 building to beat detainees is not such as to relate them directly to the

12 accused, especially since there is no evidence that any of them were

13 members of the Srebrenica military police."

14 That was the whole basis of the case, that the guards were linked

15 to Oric by being members of the military police. So, time and again, the

16 Prosecution tries to say that it doesn't matter that Oric is a universal

17 superior without a corresponding subordinate. Of course, they don't put

18 him in those terms, but that's what they're driving at.

19 So you see it in the written submissions and we heard it this

20 morning. That's at paragraph 7: "Oric was at the top of the command

21 hierarchy having custody of the Serb prisoners."

22 But, in fact, that's nonsense. What command hierarchy over the

23 prisoners? There was no evidence of a command hierarchy over the

24 prisoners. There were attempts to establish hierarchy within the SAFS

25 and with the military police.

Page 42

1 But this is, again, a new theory. I'll come to it in a moment in

2 distinguishing Krnojelac. Krnojelac, let's recall, is a camp warden or a

3 governor of a prison. It's an institution, a prison; he's the governor;

4 and, therefore, there's a hierarchy over the prison. There's no attempt

5 in this case to say this prison had a governor who answered to this other

6 person and Oric was in that command hierarchy, nothing at all of that.

7 So that leads me to the next fallacy or leitmotif, number 3, and

8 that's the Trial Chamber and the Prosecution trying to hold Oric

9 responsible for a non-natural person, a corporate entity. That's been

10 touched on this morning as well and you'll see that at paragraph 496 of

11 the judgement.

12 It's a very illustrative the way it's even worded: "The only

13 conclusion to draw from this evidence is that the Srebrenica military

14 police through its commanders, i.e., Mirzet Halilovic, and Atif Krdzic

15 respectively, are responsible for the acts and omissions by the guards at

16 the Srebrenica police station and at the building."

17 So the Trial Chamber effectively hold the military police

18 criminally responsible. You see the Trial Chamber's own conclusion, and

19 that's why I said it's such an interesting passage, in the misuse of the

20 plural form, because if the military police is responsible, they should

21 say "is responsible," but they say "are responsible" because they are

22 equivocating between the alleged individual liability of Halilovic and

23 Krdzic and the corporate liability of the military police. So the

24 Chamber isn't even clear in its own mind what it's actually doing.

25 Just as an aside, throughout the trial and in the exhibits, the

Page 43

1 military police was referred to as the "MP," and that's "VP" in Bosnian.

2 So I would just say that the use by the Prosecution in the latest filings

3 of "SMP" is misleading, and they should stick to what was used at trial.

4 It's misleading because you will see "VP" in the documents. You won't

5 see "SMP" or "SVP." That's just as an aside.

6 Now, you'll find the Prosecution's use of the corporate liability

7 fallacy. In paragraph 57 of their respondent's brief, they refer there

8 to "the SMP's past criminal behaviour," so the criminal behaviour of a

9 corporate body. That runs directly counter to Article 6 and 7(3) of the

10 Statute in which it's clear, reading them together, that subordinates

11 have to be natural persons.

12 Now, leitmotif 4 is what I call the phantom military policemen,

13 the "PMP," because when the Prosecution's arguments about Krdzic fail,

14 they go for this "PMP," as they're bound to do, because they know that

15 Krdzic and what he knew or did was not a trial issue. So, instead, the

16 PMP, let me define it, is someone who you don't know, no witness has ever

17 mentioned or seen or heard. But you are asked to assume five things

18 about him.

19 You're asked to assume that he exists; you're asked to assume

20 that he had a duty to prevent crimes; you're asked to assume that he

21 failed in that duty; you're asked to assume that that failure which you

22 know nothing substantially assisted the principal perpetrators to commit

23 crimes, substantially assisted because as we know from Blagojevic you can

24 have an assistance that is less than substantial assistance, you have to

25 assume that; and you have to assume, when he did all these things as

Page 44

1 phantom military policemen, that he possessed the necessary mens rea.

2 So that's at least five assumptions that you have to make about

3 someone who no witness testified about, in fact about whom there's

4 evidence that he or she existed. In the words of Wittgenstein: "If

5 that's allowed, then anything is allowed."

6 The Prosecution, of course, again don't call him the phantom

7 military policeman, because that would be a give away. They don't know

8 anything about him. Instead, they say in their written submissions

9 paragraph 5: "The relevant SMP members," as if that solved the problem;

10 but, of course, it doesn't. Who are the relevant SMP members? Who were

11 the irrelevant SMP members? They don't know, you don't know. The

12 relevant SMP member is the phantom military policeman.

13 So how can the Prosecution invite you to uphold a conviction on

14 such an extraordinary basis, making assumptions about hypothetical people

15 about who there was no evidence. It's the peculiarly persuasive power of

16 circular reasoning. Someone must have failed in their duty because

17 prisoners were mistreated; and at the bottom, time and again, that's the

18 argument and the Chamber's argument. It's circular because by

19 definition, whenever a crime occurs, someone has failed to prevent it,

20 because if they had prevented it, it wouldn't have occurred. That's why

21 it's circular. But you don't convict a man or uphold his conviction on

22 the basis of circular reasoning like that, that the Oric or the Krdzic,

23 some unknown MP member must have failed to prevent the crimes because the

24 crimes occurred.

25 I don't know if Your Honour, Judge Shahabuddeen, had a question.

Page 45

1 No.

2 JUDGE SHAHABBUDDEEN: No, Mr. Jones, I was just enjoying your

3 presentation.

4 MR. JONES: Thank you. I'm very much obliged, Your Honour.

5 So we say, that in a criminal trial, you need evidence, not a

6 circular definition of liability. So that's leitmotif 5, circular

7 reasoning. And if applied in this way, it would created strict

8 liability, which is the final leitmotif, the attempt to always try to

9 push 7(3) towards strict liability. The Prosecution understandably likes

10 strict liability because it removes the need to bring that very

11 inconvenient thing: Evidence.

12 So, time and again, you'll see the argument in different forms,

13 whatever happened to the prisoners, however it was caused, the MP or

14 Krdzic or Oric is responsible. That's thinly disguised, strict

15 liability. In fact, one of the best titles of a book I read was:

16 "Thinly Disguised Autobiography," because, in fact, many books are thinly

17 disguised autobiographies. We say the title of this judgement should be:

18 Thinly disguised strict liability.

19 So even if Oric and Krdzic were saints, even if they did all they

20 could to prevent crimes, they would still be liable because the crimes

21 occurred; ergo they didn't prevent the crimes and ergo they're guilty.

22 So those are the six fallacies and I assure you they'll crop up time and

23 again in the judgement and in the Prosecution's arguments.

24 Now I turn to a much more factual issue, a very important one:

25 The guards. What do we know about the guards? Well, we know, first and

Page 46

1 foremost, that there's no evidence that they were members of the military

2 police, and that's a hundred per cent clear from paragraphs 489 and 530

3 of the judgement. I've quoted 489, but 530 again is in these terms: "No

4 evidence to prove they were part of the military police."

5 Now, that's no evidence, note, no evidence at all, not the merest

6 scintilla or jot of evidence. This is in a trial where the Prosecution

7 was trying to prove that proposition beyond a reasonable doubt. The key

8 question is this: If the guards were not members of the MP, who were

9 they? This leads to the Prosecution's speculation that, well, they must

10 still have been under the effective control of the MP, and you know their

11 arguments of that proposition.

12 But note, even in paragraph 530, it said that they're not even

13 directly linked to Oric. So just to allude back to what I mentioned

14 earlier, this is a completely different situation from Krnojelac, where

15 the Prosecution never properly pleaded, or pleaded at all the chain of

16 command over a prisoner. You have that submission.

17 But, in fact, in this regard, what's important is that the SUP

18 first detention facility was a civilian police building, and that's what

19 SUPs were up and down the former Yugoslavia. They're now called MUPs,

20 and it stands for Ministry of the Interior. It's a civilian police

21 building. So the normal assumption would be that the police chief is

22 responsible for that and is the same as saying that the guards were

23 civilians. But we don't know who the prison guards are. Oric was not

24 alleged or found to be a prison warden or prison governor, nor was Krdzic

25 alleged or proved to be a prison governor or a prison warden.

Page 47

1 So the Prosecution can't use the Krnojelac argument to say, well,

2 there are unnamed perpetrators but who nonetheless belong to a unit

3 subordinated to Oric, and that's what Krnojelac in some ways is all

4 about. They simply can't get there because the Trial Chamber excluded

5 that.

6 THE INTERPRETER: Could counsel please slow down. Thank you.

7 MR. JONES: My apologies.

8 So, in fact, with the guards, the Prosecution has one or two

9 avenues to go down; and, in some ways, the issues are reminiscent of

10 Nicaragua. They say either the individual guards were directly

11 subordinated to Oric - this is what they would have to say, but that's

12 impossible because none of the guards are even linked to Oric - or they

13 have to say that the guards were in a unit subordinated to Oric. But it

14 wasn't the MP, it was some other unit, a unit of guards.

15 There was no evidence at trial at all of any unit, brigade, or

16 regiment of guards. There was no commander that guards unit. I mean,

17 guards is a job description. It's not a unit, in the context of our case

18 in any event.

19 Moreover, and again it's very important to emphasise, it was

20 never pleaded in the indictment or at trial that the guards were either

21 individually subordinated to Oric or that there was an identifiable unit

22 of guards under his command. We can't emphasise strongly enough how

23 important it is that these things were not trial issues and witnesses

24 were not asked questions about it.

25 So Your Honours might well ask: How could the Trial Chamber find

Page 48

1 Oric guilty on these facts? The answer, in short, is that the

2 Trial Chamber basically held that the MP was strictly liable for whatever

3 happened to detainees, and they got there through a complete misreading

4 of the third Geneva Convention. That's set out in our appeals brief at

5 paragraphs 323 to 330.

6 In essence, the fallacy is this: The Geneva Convention, third

7 Geneva Convention, quite sensibly says and states: If you have prisoners

8 of war in your custody, you're responsible for what happens to them. You

9 can't shirk it off by saying, no, it was this unit or this individual.

10 You as the state must ensure that they're taken care of.

11 That makes perfect sense in the context of the Geneva

12 Conventions, and it makes perfect sense even to the extent that it's a

13 form of strict liability because this is inter-state relationship. So

14 there's no harm there in saying, and indeed great benefit, in holding

15 states strictly liable for what happens to detainees.

16 But where it doesn't work in a criminal trial where the same

17 structure, the same argument is used to make the military police

18 responsible for absolutely whatever happened to the detainees. Moreover,

19 it's a complete misreading, because Article 12 of the convention makes

20 clear that the detaining power is the state. It's not a unit or an

21 individual.

22 Yes, thank you, Your Honour. I'm obliged. I'm sorry if I ran

23 over.

24 JUDGE SCHOMBURG: [Microphone not activated]

25 THE INTERPRETER: Microphone for the President, please.

Page 49

1 JUDGE SCHOMBURG: Thank you. My apologies.

2 We will continue at ten minutes after 11.00. Thank you.

3 --- Recess taken at 10.48 a.m.

4 --- On resuming at 11.11 a.m.

5 JUDGE SCHOMBURG: Thank you, Mr. Jones, you are already on your

6 feet and may we continue immediately. However, I think it would be of

7 assistance for both the Judges, but primarily for the interpreters, if

8 you could slow down a little bit. I know your heart is full, but

9 nevertheless it would be helpful if you could slow down.

10 MR. JONES: Yes, I'm obliged, Your Honour. It's not the first

11 time I've been told that I speak too fast.

12 JUDGE SCHOMBURG: Okay. Thank you.

13 MR. JONES: Now, before the break, I was dealing with this issue

14 that the evidence to establish that any of the guards individually could

15 be linked to Oric. So then there's a question of whether there's a unit

16 of guards that can be linked to him.

17 The fact is that the evidence at trial established that the only

18 persons identified as having a role in detention and being in any unit

19 were Nurija Jusufovic and Zele, who was the one-armed civilian policeman,

20 and they were both civilian policemen. So we're going to briefly review

21 that evidence because, in our submission, it's the crux of the case in

22 many ways.

23 As I alluded to earlier, first and foremost, one needs to

24 remember that the SUP is a civilian police building, in Bosnian. It's

25 the Sekretarijat Ununtrasnjih Poslova, SUP; and that in turn is the

Page 50

1 building of the public security service, SJB, of which Becir Bogilovic

2 was the chief. We'll hear a lot more about Bogilovic, I imagine, in the

3 course of today. So there's no dispute about that. That's what SUPs,

4 now renamed MUPs, the Ministry of the Interior, are in Yugoslavia.

5 So, surely, the Trial Chamber should have started from the

6 assumption that since mistreatment was occurring in the SUP, civilian

7 police station, that that came under the auspices, authority, and

8 responsibility of the civilian police and the civilian authorities, right

9 up to the civilian War Presidency, the WP, which in Bosnian is RP, Ratno

10 Predsjednistvo. That was the highest authority in Srebrenica as the

11 Trial Chamber found.

12 So, if we look at that evidence briefly, we need to have the

13 Defence display activated. So, first of all, we see Radic, and you have

14 the reference there:

15 "Q. You were in the civilian SUP, and it was the civilian police

16 who were questioning you?

17 "A. Yes."

18 That's at T3695.

19 Let's look at the next slide. Ivanovic was asked about his

20 detention at the police station. It should be there, yes, if we can move

21 it back. He said: "Once there, there were police officers who were

22 bearing blue uniforms, the kind they used to wear in the former

23 Yugoslavia," and that's civilian blue police uniforms.

24 Then we see Nikolic, and it should be at T2721, where he referred

25 to the fact that it was the -- the guards were civilian policemen. It's

Page 51

1 the next page, yes.

2 "Q. Now, the guards, they were civilian policemen, weren't they?

3 If they told you that, you were able to see that?

4 "A. Yes, yes."

5 So these are three different detainees at the SUP saying the same

6 thing, that they were detained in the civilian police building by the

7 civilian police.

8 Now, the Trial Chamber discounted their evidence to a certain

9 extent, saying that, well, the Serb detainees were least able to see

10 essentially who they were being detained by; but, in our submission,

11 that's not a correct basis for discounting that evidence, because this

12 is -- this was a conflict in which the detainees were from the area, from

13 the very area around Srebrenica. They knew what different buildings

14 represented. They knew what uniforms civilian police wore.

15 It's not like an international armed conflict where, let's say,

16 if a Filipino fell into the hands of the Japanese during the Second World

17 War and would have no idea who were detaining them. These are people

18 from that very area and they know very well what the civilian police

19 building is and what civilian police uniforms look like.

20 Then we go on to D871, and now we're going to look at the

21 evidence in relation to Nurija Jusufovic and Zele. You see from D871

22 that's a list of members from the Srebrenica SJB, that's the public

23 security station, that Nurija Jusufovic and Elvir Dzozic, which the

24 evidence established was Zele, were both members of the civilian police,

25 and that wasn't in dispute.

Page 52

1 So, then, when we look at the evidence of Ivanovic, 24th January,

2 2005, T4004, this is what happened when he first arrived at the SUP and

3 he refers to Nurija.

4 "A. Nurija was standing in the hallway of the police station,

5 and he asked he, 'Chetnik, do you know Pero Milosevic?' And I said,

6 'Yes, he is my wife's uncle.'"

7 Then we go down and we see that he refers to him then being taken

8 to his cell, to the right of the entrance to the police station.

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

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

11 radiator."

12 So that's Nurija Jusufovic, and the evidence establishes that

13 that's Nurija Jusufovic basically receiving a Serb detainee, one of the

14 detainees in the indictment, and essentially being there as he's placed

15 in his cell. That should tell you something about who, in fact, was

16 detaining these Serbs. He's one of the very few people identified and

17 he's the chief of the civilian police, Nurija Jusufovic.

18 So, in our submission, there's enough there to raise a reasonable

19 doubt that the guards were subordinated to Oric. So that's at the SUP,

20 the first location. And if we turn to the second location, the building,

21 P475, Prosecution exhibit, and this was a list of detainees kept by the

22 detainees. You'll see there, there was a note: "Not knowing whether

23 Nurija was the SUP commander."

24 So, in our submission, that indicates that the detainees were

25 coming into contact with Nurija Jusufovic at the building, the second

Page 53

1 location, and were wondering exactly what his role was. The evidence

2 established that he was, indeed, the civilian police chief.

3 And, then, if we look at D987, this is a note from Nurija

4 Jusufovic as the commander of the SJB, and this is to Avdic. Avdic,

5 Hajrudin Avdic, was the president of the War Presidency: "Avdic, I have

6 here imprisoned the Serb citizens from Karno, nine of them. They were

7 brought in during last night and they are now here. Please decide and

8 tell us what to do with these citizens."

9 So that's the civilian police chief with Serb prisoners in his

10 custody asking the president of the War Presidency what he should do with

11 them. In our submission, that's very clear evidence of who was detaining

12 the Serb detainees.

13 But then let's see how the Trial Chamber dealt with that

14 evidence. In footnote 1367 of the judgement, the Chamber said: "There

15 is other written evidence allowing for the inference that at another time

16 the civilian authorities in Srebrenica were involved in detaining Serbs

17 as well."

18 But this doesn't relate to another time. The evidence

19 established that it was August 1992, and that's clear from T14660 and

20 T13303 to 13300, and T13304. We even have a video of that, of the

21 detainees from Karno being questioned by Mustafa Sacirovic. That's T866.

22 In our submission, this is a failure to make proper findings. This is a

23 key exhibit, and the Trial Chamber surely can't be permitted simply to

24 reject it with no or with a faulty explanation and yet the conviction

25 still be sound.

Page 54

1 So we see Nurija Jusufovic, civilian police chief, involved in

2 the detention of Serbs, both at SUP and at the building, both locations.

3 Then we see his relationship to Bogilovic. We see the next slide, and

4 it's from 18 March 2005, T6247. He admitted that he oversaw the work of

5 Jusufovic.

6 "Q. Did you ever oversee or come and see what the work of Nurija

7 Jusufovic was at the SUP building during the time-period of August,

8 September, or October?"

9 This is 1992, the very period, the first period in the

10 indictment.

11 "A. Yes. From time to time, whenever I was able to do so, when

12 somebody would drive me there; but, on most occasions, Nurija would come

13 and see me."

14 He goes on and discusses this Nurija Jusufovic. So this is the

15 very Jusufovic who received Ivanovic at the SUP, being supervised by

16 Bogilovic, the SJB chief. It's all the more reason to take what

17 Bogilovic said with a very large pinch of salt, because essentially he

18 knew that if Oric wasn't in the dock he would be. This is mistreatment

19 in his police station.

20 Then Zele, the one-armed policeman - that's him in D1011 - he

21 also was identified by witnesses at both locations. We see from that

22 Mitrovic's evidence, 18/01/05, T3809. He recalls Zele as being someone

23 who, in fact, took him out of the SUP to stay in another building. Then

24 we see him again involved in relation to the second building.

25 [French on English Channel]

Page 55

1 MR JONES: I received a French translation. I'm sure we all did.

2 Guster, if we go back to that slide, 20/01/06 T15462, here Guster

3 was explaining how a Serb detainee was taken from the building, the

4 second location, and handed over to UNPROFOR. He was asked about who was

5 involved in that, and he refers to this one-armed man. Sorry, if we go

6 back to the first slide. Yes.

7 "Q. Prior to this event, did you know of this person," if we go

8 to the previous one, "this person without an arm, wearing civilian

9 clothes ..." -- please go back to the previous one. Just leave it

10 there.

11 "This person without an arm, wearing civilian clothes, who had

12 come out of that house, came to us and told us that the APC had left for

13 Zvornik and not Tuzla."

14 This is an APC that features in the indictment taking him across

15 the Serb lines.

16 "Q. Prior to this event, did you know this person who had one

17 arm missing?

18 "A. No.

19 "Q. When the APC left, did you get to know anything about this

20 man?

21 "A. Yes. We took quite an interest in him because he was with

22 the UNPROFOR men. We started yelling at him, telling him why we weren't

23 able to be evacuated with the APC since we were wounded as well. The

24 people who were close by addressed by the name of Zele, and told us that

25 Zele was a policeman.

Page 56

1 "Q. After this happened, were you able to see this one-armed

2 policeman."

3 Then he says how he saw him again, and everyone said that he was

4 a policeman. And as it says, it was Elvir Dzozic. There is no dispute

5 that he was a civilian policeman. He pops up again in relation to

6 Svetlana Trifunovic, who was a Prosecution witness who was also detained.

7 She too refers to: "Some Zele who either didn't have an arm or he was

8 wounded in the right arm."

9 So we have Zele and Nurija Jusufovic intimately involved with

10 putting prisoners in and out of cells at both locations. They're both

11 subordinates of Bogilovic, and we can see in the next chart the hierarchy

12 which was explained by witnesses and by the Prosecution's own exhibit,

13 P84, that Halilovic, as commander of military police, and Jusufovic,

14 chief of civilian police, were both under Bogilovic of the SJB who in

15 turn reported to Avdic. We'll later come to all the evidence that

16 Halilovic and Jusufovic and Bogilovic all brought their reports to Avdic

17 in the War Presidency.

18 If we move onto the next exhibit P45, this is possibly the most

19 important exhibit in this case. If we see and if we look at P45 very

20 carefully, all of the people listed there are the victims in this

21 indictment: Dzakic, murder victim; Sekulic, murder victim; Ilic, murder

22 victim; Nikolic, victim of beating; Ivanovic, victim of beatings;

23 Milovanovic, murder victim; Pejic, victim of beatings; and Popovic,

24 further down, murder victim. So you'll see all those names at paragraph

25 25 of the indictment. This is a document of the committee for mediation

Page 57

1 and exchange under the War Presidency, the municipal War Presidency.

2 So, in our submission, could it be any clearer where

3 responsibility lies for the very victims in the indictment. It's not

4 Oric or Krdzic or the military police who are offering the prisoners for

5 exchange, it's the civilian War Presidency. We would ask you to think

6 long and hard about that. This is a Prosecution exhibit and it gives the

7 lie to their whole case.

8 D247 is also an absolutely key exhibit on this issue. Now, this

9 is the War Presidency receiving the report of the prison, and the

10 Trial Chamber didn't consider this document at all. It's not referred to

11 anywhere in the judgement, and we ask rhetorically: Is that the sort of

12 thing covered by the Kvocka presumption that the Trial Chamber did its

13 job properly? It never even mentioned this exhibit.

14 This is the civilian War Presidency receiving the prisoners

15 report for 1993, the prison where Serb detainees were held. It's the

16 work report for 1993. As we know, reports were always sent to superiors.

17 The War Presidency, therefore, obviously considered itself the superior

18 for the prison since it received the work report for the prison. So it

19 in turn would be responsible for the prison where murders and beatings

20 occurred.

21 You can see it was a municipal prison, that's how it's referred

22 to. So the Serbs were detained in the civilian municipal prison and the

23 civilian police station, the SUP. Almost the sole basis of the Chamber

24 finding otherwise, not finding that the Serb were detained by the

25 civilian authorities, was Bogilovic, the very person with the greatest

Page 58

1 interest to serve in saying that the civilian authorities had no role in

2 detaining Serbs. It all rests, as I'm sure you're aware, on this notion

3 that on the ground floor was the military police, and on the first floor

4 was the civilian police, and that people were detained on the ground

5 floor.

6 You've seen that the evidence, in fact, show that there were

7 detainees, Serb detainees, on the first floor as well. It shows also

8 that detainees were taken up to the first floor for questioning, and you

9 see that with Nikolic, 6/12/04, T2605. He's at the police station and

10 he's taken upstairs for interrogation, to the first floor where,

11 according to Bogilovic, the civilian police were based.

12 Zigic too said the same thing, 15/12/05 T3218: "On another

13 occasion, I went to the first floor," because this was on the ground

14 floor where he was being held. "So this time I went to the first floor

15 where the questioning was conducted by the police."

16 So, in our submission, from the above, when you look at the

17 evidence properly, as the Trial Chamber failed to do, we have the answer

18 who were the guards. They were municipal guards, civilian police, and it

19 was certainly enough to raise a reasonable doubt that the Serbs were

20 guarded by civilian guards rather than military. The Prosecution, in our

21 submission, should be asked to explain or how do they explain Nurija

22 Jusufovic and Zele being so involved at the SUP or at the building, if

23 the civilian police had not role at all in detaining Serbs.

24 THE INTERPRETER: The speaker is kindly asked to speak into the

25 microphone.

Page 59

1 MR. JONES: I apologise.

2 I come to Krdzic in this regard. Krdzic was never seen at either

3 location, either at the SUP or at the building. Now shouldn't the

4 Trial Chamber have inferred from that that it's because he wasn't

5 involved in detention, it was nothing to do with him. Now, instead, they

6 essentially inferred guilt on that basis by taking it to show neglect of

7 his duties. So, in our submission, that shows how unfair the Chamber's

8 approach was and that everything was seen through this prism of presumed

9 guilt.

10 The civilian municipal guards were obviously not subordinated to

11 Oric, and there was never any suggestion of that and it would be absurd.

12 The civilian police was under the civilian War Presidency, the supreme

13 authority in Srebrenica, as the Trial Chamber found at paragraph 250. So

14 that position is not even inconsistent with the military police arresting

15 Serbs and taking them to the prison and even taking them out for

16 questioning. Now, our position is we deny that that's actually what

17 occurred, and that finding of the Trial Chamber is based not on witness

18 testimony but on suspect exhibits which were confirmed by no one, and

19 with a forged signature in the case of P17.

20 As I say, the -- it's possible to imagine a situation in which

21 one authority is detaining Serbs or anyone and another authority is

22 arresting them and taking them for question. So think, for example, if

23 the FBI arrested an al-Qaeda suspect and he's been held in a federal or a

24 state prison, and the FBI take him out every once in a while for

25 questioning, the guards at the state or federal prison are not

Page 60

1 subordinated to the FBI. They're doing quite a different role,

2 obviously, in cooperation with them. But, as I say, the position is

3 consistent even with the finding by the Chamber that the military police

4 were involved in arrested and questioning Serbs.

5 Let's also recall in relation to the guards that, as we've

6 pointed out, that the Chamber found no evidence that they were members of

7 the military police. We say the evidence clearly shows they were

8 civilian police, but it's not for us to prove that. It's for the

9 Prosecution, it was for the Prosecution at trial, to prove that beyond a

10 reasonable doubt. Since we're at appeal, and this is an alternative

11 basis for upholding the conviction, that the guards were Oric's

12 subordinates even though they weren't members of the military police, the

13 threshold is even higher.

14 The Prosecution has to persuade you that no reasonable

15 Trial Chamber can fail to consider it proved beyond a reasonable doubt

16 that the guards were Oric's subordinates even if they weren't members of

17 the MP. When you see the evidence reviewed and the absence of evidence

18 on the other side, you'll see that that, in our submission, is completely

19 untenable and there's no evidence that the guards were Krdzic's or Oric's

20 subordinates.

21 I move to the next subject which is aiding and abetting by

22 omission. It's right to say that in their written submissions the

23 Prosecution aren't arguing, it appears, command responsibility on the

24 part of Krdzic. It's all premised on this, if I may say, nebulous

25 concept of aiding and abetting by pure omission; and I emphasise pure

Page 61

1 omission because it's aiding and abetting where the accused is not even

2 present at the scene. We have the Furundzija example also discussed in

3 Brdjanin where an accused is present and has authority and does nothing,

4 that that can be construed as aiding and abetting by omission. In fact,

5 one wonders if one needs the concept of omission because, in fact, his

6 being there and doing nothing is tacit encouragement.

7 But, on this concept of aiding and abetting by omission, first we

8 would allude again to this issue of remoteness, the daisy chain fallacy,

9 as I refer to it. Oric is now to be held responsible via Article 7(3)

10 for Krdzic, aiding and abetting omission, non-subordinates, guards, who

11 in turn aided and abetted probably by omission other non-subordinates,

12 perpetrators to commit crimes. So it's incredibly attenuated form of

13 liability at best.

14 The second, in our submission, is that there is no doctrine of

15 aiding and abetting by pure omission in international humanitarian law.

16 As I say, it is a different matter if the person is present, and that's

17 clear from Brdjanin where the Appeals Chamber allowed for aiding and

18 abetting by omission if the accused: "Held a position of authority, he

19 was physically present on the scene of the crime, and his

20 non-intervention was seen as tacit approval and encouragement." That's

21 paragraph 273 from the Brdjanin appeals judgement.

22 There's no support for the proposition that, in as a matter of

23 international humanitarian law in 1992, there was liability for aiding

24 and abetting by pure omission, and there's no allegation that Krdzic was

25 ever at the scene of the crimes. In our submission, it would absolutely

Page 62

1 violate the principle of legality to use it now to uphold Oric's

2 conviction, and we'll come back to the question of legality later today.

3 Moreover, the case was never presented or pleaded on the basis

4 that Krdzic aided and abetted crimes by pure omission.

5 As to whether or not the doctrine of aiding and abetting by pure

6 omission is being which the Tribunal might consider now as a possible

7 basis of liability, in our submission, you should be very suspicious

8 about the notion of aiding and abetting by pure omission, as it would

9 completely cover and go way beyond command responsibility, because with

10 command responsibility, you always have a duty on the part of a superior

11 and an omission to fulfil that duty which assists the commission of the

12 crime. So, in every case of command responsibility, that would ipso

13 facto be a case of aiding and abetting by omission. So at a stroke 7(3)

14 would be redundant, but it would go way beyond command responsibility

15 because there would be no need for the Prosecution to prove that there

16 were any subordinates or effective control.

17 So a form of liability for which there's no precedent, in our

18 submission, which would go way beyond command responsibility and render

19 Article 7(3) completely redundant, as well as violate nullum crimen sine

20 lege, is a form of responsibility of which you should be very suspicious.

21 So even if it had been pleaded, it should be rejected.

22 As far as the mens rea, the proposed mens rea for aiding and

23 abetting by pure omission is concerned, the Prosecution's probabilistic

24 awareness standard conflicts with the established authority that aiding

25 and abetting must be intentional. In fact, what the Prosecution has done

Page 63

1 is taken the mens rea for aiding and abetting where the person is present

2 and applied that to aiding and abetting by pure omission, because they

3 can't cite a single case of aiding and abetting by pure omission, so they

4 borrowed the mens rea from that very different form of aiding and

5 abetting.

6 What evidence is there anyway that Krdzic had this awareness of a

7 probability? At the very most, based on their speculation about what

8 everyone in Srebrenica would have known, would be maybe a possible

9 awareness of a possibility of crimes occurring. But the Prosecution also

10 forget a factual matter, which is that Krdzic was a commander in Osmace,

11 for some 13 kilometres away at an enclave, a zone, at the time, for much

12 of 1992 and only came to Srebrenica in late 1992 to take up his post.

13 As to whether he must have known that he was being appointed to

14 replace Halilovic because of mistreatment of detainees, that's pure

15 speculation. Sometimes someone can take over someone else's post with no

16 idea of the history behind that. He simply knows he's been appointed to

17 a post. We've pointed out, in our written submissions, the complete

18 dearth of evidence that mistreatment of detainees was ever discussed at

19 meetings. In fact, the Prosecution -- my apologies, the Trial Chamber

20 found that the treatment of detainees was not discussed from the start.

21 If you'll give me a moment, Your Honour, just to confer with my

22 colleague.

23 JUDGE SCHOMBURG: If you please could conclude your submissions

24 within the next one minute. Thank you.

25 MR. JONES: I think, Your Honour, rather than embarking on a new

Page 64

1 topic, I'll conclude there. Thank you.

2 JUDGE SCHOMBURG: I thank you.

3 It's time for the submissions by the Prosecution in reply for

4 further ten minutes.

5 MS. JARVIS: Thank you, Mr. President, and Your Honours. In the

6 time available, I obviously will not be able to touch upon all of the

7 issues that have been raised; and, in any event, many of them are perhaps

8 more appropriately dealt with by way of the Prosecution's response to the

9 Defence appeal which we have time for later.

10 But what I did want to do in the time available to me now is to

11 make six brief points that address issues relating to the first three

12 questions that Your Honours have raised. Perhaps I can start, first of

13 all, with the -- one of the later points raised by Mr. Jones, and that is

14 whether the concept of aiding and abetting by pure omission is recognised

15 in international criminal law or in the jurisprudence of this Tribunal

16 more generally.

17 Your Honour, we submit that it is and that there is ample

18 authority for that in our own case law, that aiding and abetting may take

19 the form of an omission. We refer you, for example, to the Krnojelac

20 appeal judgement paragraphs 37 and 43; the Ntagerura appeal judgement at

21 paragraph 338; and a number of Trial Chamber judgements, for example, the

22 Krnojelac trial judgement at paragraph 88, the Kunarac trial judgement at

23 paragraph 391. There are a series of cases that have affirmed the

24 concept of aiding and abetting by omission.

25 Perhaps, in particular, what I can do is cite to the recent

Page 65

1 Mrksic trial judgement at paragraph 553, where the Chamber specifically

2 noted that: "Responsibility for having aided and abetted a crime by

3 omission may arise regardless of whether the accused's presence at the

4 scene of the crime provided encouragement to the perpetrators when the

5 accused was under a duty to prevent the crime but failed to act."

6 So we submit that's a very clear recognition in our own case law

7 of the price form of liability that we are concerned with here.

8 Your Honours, the second point I want to deal with is the issue

9 of whether the -- Oric's responsibility, based directly on a

10 superior/subordinate relationship with the guards, was an issue that was

11 raised at Trial Chamber and of which the Defence had notice. Your

12 Honours, I submit that, in fact, one of the clearest indications of the

13 fact that the Defence was very much on notice of this issue are the

14 submissions that Mr. Jones has just given now.

15 The issue of whether the guards were, in fact, under the control

16 of civilian authorities as opposed to military authorities, including

17 Oric, was a hotly contested issue at trial, and it underscores that the

18 Defence was very much on notice that their -- that Mr. Oric's liability

19 was encompassing the prospect that he had a superior/supported

20 relationship with the guards. Your Honours, we say that, if you look at

21 the indictment, it's very clear that what the Prosecution is doing now is

22 not proposing a third new theory of liability, but in fact pointing Your

23 Honours to a theory that was encompassed within the indictment and the

24 pre-trial documents. It was argued throughout the trial, and it would

25 have been a valid basis for conviction.

Page 66

1 In particular, if Your Honours refer to paragraphs 22, 23, and 26

2 of the indictment, in these places, it was alleged that the Srebrenica

3 military police detained Serb prisoners, that they were subjected to

4 mistreatment by the guards and/or by others with the support of the

5 guards, and that Oric knew or had reason to know that his subordinates

6 were carrying out the mistreatment and he failed to take the necessary

7 and reasonable measures to prevent or punish.

8 Your Honours, certainly it was the Prosecution's case at the

9 outset of the trial that the guards were members of the military police.

10 But at the 98 bis stage, in the decision rendered by the Chamber, the

11 Chamber specifically found that the identity of the guards had not been

12 established, and I point Your Honours to the transcript of the 98 bis

13 decision at page 8999 and also 9004 to 9005. Nevertheless, the Chamber

14 specifically found the accused had a case to answer, regardless of the

15 identity of the guards, based on the existence of a superior relationship

16 between Oric and the guards.

17 So from that point, Oric certainly was on notice that regardless

18 of their individual identification, he was defending against a case based

19 on Oric's control over the guards and, in fact, the trial record

20 discloses that he did defend against that charge. In particular in our

21 response brief at paragraph 209, we have pointed out the evidence

22 elicited in cross-examination by the Defence that confirms that they were

23 fully aware that this was a potential basis for their liability.

24 Your Honour, in respect of the pleading issue concerning Krdzic

25 as an individual, perhaps I can just make a general response and indicate

Page 67

1 that Ms. Baig is available for further questions on that issue tomorrow;

2 but certainly, Your Honour, the pleadings in this case put the Defence on

3 notice that Oric was alleged to have been the superior of the military

4 police who were in charge of the prisoners, and it must be implicit

5 within the boundaries of that that the commander of that very unit,

6 Krdzic, was amongst that group.

7 Your Honours, Mr. Jones has raised a point that I would like to

8 clarify, although it's a small point, and that was his complaint about

9 the Prosecution's use of the abbreviation "SMP" or Srebrenica military

10 police in this case. Of course, this was simply a shorthand way of

11 referring to the military police in Srebrenica, and I think that's clear

12 from the context in which we've used that in the brief and it is not

13 accurate to say that this could give rise to any misunderstanding.

14 Your Honours, to conclude, in terms of the Trial Chamber's

15 approach to the guards and their direct relationship with Oric, we say

16 the Trial Chamber became preoccupied with the label of whether they were

17 military police or not and lost sight of the more significant question

18 whether by virtue of their function they played a role in Oric's command

19 hierarchy.

20 Your Honours, I'd like to underscore the reasonableness of the

21 conclusion we seek to arrive at by pointing out that, of course, the

22 prisoners in this case were militarily valuable assets. They were

23 detained for two main reasons: They were interrogated for Serb military

24 information and they were exchanged for Bosnian Muslim corpses. And we

25 see from the trial record that Bosnian Muslim military personnel were

Page 68

1 involved with the prisoners from the moment of their capture through to

2 their exchange and the prisoners were confined and monitored throughout,

3 as you would expect. In particular, the prisoners were captured by

4 Bosnian Muslim forces, often during combat operations in areas around

5 Srebrenica.

6 Oric was involved personally in the transport of one of the

7 prisoners, Ratko Nikolic, in January 1993 when he was transported back

8 into Srebrenica. During the course of their imprisonment, the prisoners

9 were interrogated by Bosnian Muslim military personnel. Hamed Salihovic

10 played a key role in overseeing the interrogations, and he was the SAF

11 chief of security and intelligence. The military police were recording

12 the arrival and detention of the prisoners, and they took them from the

13 police station for interrogation and returned them afterwards.

14 Members of the SAF visited the prisoners during their

15 interrogation -- during their detention. Zulfo Tursunovic, in

16 particular, frequently visited the Serb prisoners. And, finally, members

17 of the SAF negotiated the exchange of the prisoners and the evidence

18 demonstrates their continued involvement throughout.

19 Your Honours, obviously these were militarily valuable assets,

20 they were kept in a confined, controlled environment, and it would be

21 entirely unreasonable to conclude that the guards in charge of these

22 prisoners were not under the effective control of the military commanders

23 and authorities, the top of whom was Oric. And we submit that that is a

24 reasonable finding and would support the conviction as an alternative

25 basis.

Page 69


2 This concludes the submissions on the questions raised by the

3 Chamber, and we will continue immediately for the next 45 minutes with

4 the Prosecution's appeal as such.

5 MR. ROGERS: [Microphone not activated]

6 THE INTERPRETER: Microphone, please.

7 MR. ROGERS: Your Honours, I'll be dealing with ground 1 and

8 subground 1 on behalf of the Prosecution, dealing particularly with the

9 considerations relating to effective control in the first period. Your

10 Honour, the Chamber's error, we allege, in this case was in failing to

11 find that Oric had effective control over the military police in the

12 first period when crimes were being committed. And it fell into that

13 error, we would say, by losing sight of the evidence as to how the

14 military police functioned as a military unit throughout when considering

15 how the armed forces staff, and Oric in particular, exercised effective

16 control over it.

17 And, Your Honours, we're grateful to Mr. Jones for pointing out

18 the use of "SMP" and "MP" because it's right to focus back on this as a

19 military unit, as a military police unit, and not to try to accord it

20 some form of special status because it was in Srebrenica. The

21 Trial Chamber found that the Srebrenica TO, later renamed as the

22 Srebrenica armed forces staff, established the military police,

23 paragraphs 181 and 499 of the judgement.

24 And if Your Honours have in front of you P109, which I hope is

25 displayed on the screen, there is a part of that decision which has been

Page 70

1 highlighted where you will see in the centre, this is a decision of the

2 TO Defence staff, I hope it's sufficiently clear, dated the 2nd of July,

3 1992, that: "A decision was made to form war-time military police," and

4 that Mirzet Halilovic was appointed as the commander of that unit.

5 And the Trial Chamber found that the TO did, in fact, appoint

6 Halilovic as the commander. Oric was the commander of the armed forces

7 staff from the 20th of May, 1992, trial judgement paragraphs 141 to 144,

8 and he remained in that position as commander throughout the period of

9 the indictment. And they further found that he was de jure commander of

10 all the Bosnian Muslim armed groups operating in the Srebrenica area

11 during the time-frame of the indictment, trial judgement paragraph 698 to

12 696.

13 Your Honours, in those circumstances, with the totality of

14 evidence in mind, the Prosecution say that no reasonable Trial Chamber

15 could have then found that Oric did not have effective control. Your

16 Honours, the SMP, military police, was regarded as and functioned as a

17 military police unit from its foundations, and it would make no sense, we

18 say, for the unit to then be somehow hived off or subordinated to a

19 civilian entity whilst the unit was carrying out military functions. In

20 particular, Your Honours, we would show P4, which I think hopefully will

21 be there, yes, P4, showing the foundation of the -- early foundations of

22 this unit. And Your Honours will see at item 10, which has been

23 highlighted, this is before any War Presidency was established, this was

24 in the very early days, you can see at item 10 that: "Services that are

25 to be attached to the Srebrenica TO, one of which is VP, the organization

Page 71

1 of which to be carried out by Mirzet Halilovic."

2 And, on VP, we're grateful to Mr. Jones clarifying in his earlier

3 submissions that "VP" does in fact refer to Vojna policija, military

4 police. He will remember very well that he made a point act this in his

5 own submissions relating to that, saying the translation was unclear;

6 plainly, it isn't.

7 That original foundation is developed through the other available

8 documents and upon which the Trial Chamber relied. P84, the memo pad of

9 the 15th of October, 1992, pages 10 and 11, show this developing position

10 and the fact that the military police remain within the armed forces

11 structures; and also at P80, pages which we have again here, pages 3, 7,

12 and 8. Your Honours, I've just picked up page 3 here which is a document

13 from -- admittedly from 1993, but it looks back at the formations as they

14 existed. And you can see, Your Honours, that it's consistent with the

15 contemporaneous documents that existed at the time, in particular P4 and

16 the others, where the armed forces come under the operational control --

17 sorry, the military police come under the operational control of the

18 armed forces.

19 In addition, Hogic gave evidence at trial transcript 8120 of what

20 the functions of an MP unit are. He said that they organized and secured

21 the rear of combat units. They brought in military persons that commit

22 crimes, that they themselves would not go into combat but secure

23 transport, and that they secured prisoners of war in detention and took

24 them to be exchanged. And he clarified that often they would take to the

25 exchange. He said it didn't necessarily mean that they were involved

Page 72

1 directly in the negotiations, although in this case we say Naser Oric

2 was. So far as the function of the military police is concerned, they

3 may not themselves arrange the exchanges.

4 So when my learned friend relies on the document showing the

5 civilian commission involved with the prisoners, that's not something on

6 Hogic's evidence that you would be surprised to see, particularly as the

7 civilian organizations had developed at that stage.

8 Your Honours, this wasn't a small unit. P590E, which I hope will

9 come on the screen again, yes, is a list of members. This is the second

10 page of that list, it's dated the 31st of July, 1992, and it has the name

11 of Halilovic as the commander at the bottom. I accept that there were

12 challenges as there were to almost every document in this case by the

13 Defence and that some witnesses suggested that some of the names on this

14 list may not have been members of the military police; however, that

15 evidence related to only four or five particular names out of a list of

16 60-odd.

17 And Your Honours will see the name of Sead Ademovic, forgive me

18 if I mispronounce that to the B/C/S speakers. But Ademovic is listed

19 there, and he produces a report which says document P609E of the 14th of

20 August, 1992, within the normal command structure; and the significance

21 of this document, Your Honours, is that it shows military functions being

22 carried out by the military police. There are a whole series of actions

23 that you would expect them to be doing consistent with the evidence of

24 Hogic. Your Honours have it, I'm not going to go through it, but it's

25 clear from there, escorting the army, that type of duty, rear guard

Page 73

1 duties are evident.

2 In addition, P84, the memo pad of the 3rd of October, 1992,

3 page 9, paragraph 9, shows that the military police were being used in

4 military operations at the rear. Military police "must take mobile radio

5 transmitters and walkie-talkies."

6 P84, 23rd of October, 1992, admittedly just outside of the

7 time-frame that we're first concerned with here; however, consistent

8 involvement with the military police is being demonstrated here in

9 operational activities and in their military police activities. The SAFO

10 staff decided - it's not the War Presidency - decided that the military

11 police would go to Poluznik [phoen], apologies if I've mispronounced it,

12 ringing to custody guards who had refused to perform duties. This is

13 well before the organizational changes of the 22nd of November, 1992.

14 Your Honours, prisoners of war were being detained within the

15 police station at this time throughout, to Oric's certain knowledge, as

16 is demonstrated by his own interviews. He confirmed what the role of the

17 military police was. P329, tape 3, page 1, he says this concerning the

18 detention of prisoners, he says: "So when they got down there," that is,

19 the prison, "they were handed over to the military police and the

20 military police had its own part of a job to do."

21 No suggestion of hand-over to the civilian police despite the

22 suggestions by the Defence that that was the true position. Why would

23 Oric be saying in his interview they were handed over to the military

24 police if, in fact, it was the civilian police to his certain knowledge.

25 And he must have known because he was both on the War Presidency and part

Page 74

1 of the armed forces staff.

2 He goes on to say: "Together with -- in coordination with

3 Mr. Halilovic, then Hamed Salihovic," who you know, Your Honours, was the

4 head of intelligence because before the war he had been a military

5 officer, and they go on to talk about further involvement with the

6 prisoners.

7 And he also says tape 3, P329, page 4, that Halilovic was the

8 commander of the military police; he was the prison warden. Your Honours

9 will remember Mr. Jones using that phrase about Krdzic when he made his

10 submission, saying there was no suggestion that he was a prison warden.

11 There's very clear evidence that Halilovic was. And, further, on tape 3

12 and page 9 and tape 16, page 11, he said it was up to the military police

13 to carry out this part, i.e., detention, this part of the job.

14 There was consistent military involvement with the prisoners from

15 arrest to detention and processing. Salihovic and Becirovic, both of

16 whom were involved with the armed forces staff, were appointed in

17 September of 1992, P79E and P255E. Both of those individuals were

18 involved from the outset, showing military involvement. That is the

19 purpose for referring to them, to show the continued military involvement

20 with the detention of prisoners and a consistent pattern developing

21 throughout the time-period.

22 Oric refers to those as persons to whom Halilovic would report,

23 P329, tape 3; Salihovic was interrogating the prisoners as head of

24 department, P329, tape, page 8. I've said Oric visited the prisons;

25 we've dealt with that, and Oric was involved directly in their exchange,

Page 75

1 P339, P100E. On the 10th of June, 1992, well before this period of

2 detention, he's involved in the exchange of prisoners. P77E and 78 shows

3 him directly negotiating or being involved with negotiations with Serb

4 commanders relating to release of prisoners. And, finally, of course,

5 P97, the intercept relating to the exchange of Radic and Sarac.

6 Your Honours, as commander of all the Bosnian Muslim armed

7 groups, he has exercised effective control over the military police. The

8 Trial Chamber looked ultimately for hallmarks of effective control at

9 paragraph 312 of their judgement. In our submission, they simply failed

10 to attach appropriate weight and significance to the multiplicity of

11 evidence that showed his control. Among the factors that they are

12 identified with the procedures of appointment for a superior, I've taken

13 you to that evidence already. The power to issue orders, I've taken you

14 to some of that evidence, and by virtue of his position as commander he

15 plainly able so to do. They identified the ability to take disciplinary

16 action. Halilovic was dismissed ultimately by the armed forces staff,

17 P84, page 28; but what is significant is that it was Oric that initiated

18 the investigation into Halilovic, plainly showing he was able so to do

19 and ultimately was involved in his dismissal. That's in his interview,

20 tape 3, page 2. All these references are at P329.

21 He had the capacity to transmit reports to competent authorities,

22 another factor that they identified, in fact whilst communications were

23 functions he was doing that, P266E of the 23rd of June, 1992; and he

24 refers again to it in his interview, and plainly he had the capacity to

25 sign orders. P109, the very order which sets up, we say, this

Page 76

1 appointment is one signed by him or at least has his name upon it.

2 Also significant, we say, as a small piece of evidence but

3 perhaps important, is P5E admittedly slightly later of the 29th of

4 October, 1992, is an order to MPs from him; and on the 31st of October,

5 1992, an order assigning a number of the military police as being

6 attached to the armed forces staff, P167E. I'll deal with this a little

7 bit more tomorrow. But when you look at it, you can see that the same

8 code is given for the Srebrenica armed forces staff as is given for a

9 series of other smaller units, and the military police is one of them and

10 takes the armed forces staff code as item 6. That's also consistent with

11 the other documents relating to organization in P80 and P84.

12 Finally, they attach significance or suggested that it would be

13 significant if an individual had a high profile, in other words, what was

14 the nature of their profile. I've already touched the documents P339E of

15 the 10th of June, 77 and 78 of the 10th of July and the intercept, which

16 all show Oric's involvement in the negotiation of prisoners exchanges at

17 that stage. He had that high profile and was commander.

18 Your Honours, contrary to the Trial Chamber's findings, the only

19 reasonable conclusion was that Oric effectively controlled this military

20 unit insofar as it carried out military functions. To hold otherwise

21 would be to hold that a military unit performing military functions was

22 not answerable to the military but to the War Presidency, as is

23 suggested, on all the evidence a fledgling civilian authority struggling

24 to establish itself and establish credibility. It would be absurd, in

25 our submission, to suggest that a military commander would divest himself

Page 77

1 of control of the military unit of the size of this unit as is evidenced

2 within the trial record.

3 In those circumstances, we would invite the Appeals Chamber to

4 overturn the findings insofar as they relate to effective control in the

5 first period. Unless I can assist Your Honours, those are my

6 submissions.

7 JUDGE SCHOMBURG: I have only one small question. Maybe I'm

8 confused as regards the different periods of times, but wouldn't it be

9 correct to say that the images of this seriously injured person, this

10 morning on the screen, that was during the period of Halilovic's

11 tenure --

12 MR. ROGERS: Yes.

13 JUDGE SCHOMBURG: -- and that it was correct that Oric apparently

14 on this basis initiated investigations into Halilovic's conduct?

15 MR. ROGERS: Your Honour, the first answer is: Yes, it would

16 have come within Oric -- within Halilovic's period of command. Whether

17 he initiated investigations into the cruel treatment as opposed to the

18 murder is moot. The evidence would suggest that he initiated an

19 investigation into a murder which he understood Halilovic had committed.

20 So that may not entirely answer Your Honour's question, but that is what

21 the evidence is.

22 JUDGE SCHOMBURG: I only wanted to make sure that we are speaking

23 of - when we saw this picture of the seriously injured person that was

24 under the period - of responsibility of Mr. Halilovic.

25 MR. ROGERS: Yes.

Page 78


2 MR. ROGERS: Yes.

3 JUDGE SCHOMBURG: [Microphone not activated]

4 MS. JARVIS: Your Honours, I'm going to continue submissions on

5 the Prosecution's appeal by addressing Your Honours in respect of

6 ground 2 concerning Oric's conviction for a separate dereliction of duty

7 crime and also ground 4 regarding the manifestly inadequate sentence of

8 two years that he received.

9 Ms. Baig will complete our submissions and address you on

10 ground 1, subground 4 concerning Oric's responsibility for failing to

11 punish crimes in the September and October period, the issue of successor

12 commander as we will refer to it. Your Honours, we won't in the time

13 available make submissions on other matters in the Prosecution's appeal,

14 but certainly we are available to assist you if you have particular

15 questions on those other matters.

16 So, Your Honours, the two issues that I'm going to be dealing

17 with this morning are both issues that reflect one of the Prosecution's

18 core concerns in bringing this appeal, and that is that the outcome of

19 the trial judgement in this case has the effect of trivializing superior

20 responsibility to such an extent that it no longer forms a meaningful

21 part of international criminal law. Moving to the first issue, and that

22 is characterization of Article 7(3) as we submit a mode of liability for

23 holding superiors responsible for the same crimes as their subordinates.

24 Oric was convicted for the crime of failing to discharge his duty

25 to prevent the occurrence of murder and cruel treatment. He should have

Page 79

1 been convicted for the murder and cruel treatment he failed to prevent.

2 The conceptualization of Article 7(3) as a separate crime of dereliction

3 of duty is a departure from the overwhelming majority of cases prosecuted

4 before this Tribunal. As set out in the Prosecution's appeal brief, the

5 Appeals Chamber's approach in previous cases confirms that Article 7(3)

6 is a mode of liability for the subordinates' underlying crimes. This is

7 also consistent with customary law underpinning the doctrine and the

8 conceptualization of it in Article 7(3) of our Statute.

9 To the sources we've already set out in our appeal brief, I would

10 add the Kamuhanda appeal judgement at paragraph 75, which refers to

11 superior responsibility under Article 6(3) of the ICTR Statute, as

12 quoted: "A distinct mode of responsibility from individual

13 responsibility for ordering a crime under Article 6(1) of the Statute."

14 I won't repeat the material in our brief, but what I would like

15 to do is focus on explaining to Your Honours why convicting superiors for

16 the underlying subordinate's crime does not represent an unacceptable

17 departure from the culpability principle. The Tadic Appeals Chamber

18 described this principle at paragraph 186 as the notion that nobody may

19 be held criminally responsible for acts or transactions in which he has

20 not personally engaged or in some other way participated.

21 Let me start with failure to prevent part of the doctrine which

22 is the basis upon which Oric's conviction rests. Treating failure to

23 prevent as a mode of liability does not depart from the culpability

24 principle. Although the Blaskic Appeals Chamber at paragraph 77

25 confirmed that causation is not an element of Article 7(3) that requires

Page 80

1 proof in all cases, there is inherently an element of causation in

2 failure to prevent cases. This was recognised by the Hadzihasanovic

3 Trial Chamber at paragraph 193, which emphasised the fact that a

4 superior's failure to take necessary and reasonable measures to prevent

5 crimes creates or heightens a real and reasonably foreseeable risk that

6 crimes will be committed.

7 In failure to punish cases, there is no direct causal link

8 between the commission of the crime and the superior's subsequent failure

9 to punish. However, the Tribunal's case law has recognised failure to

10 punish as an acceptable departure from the causation requirement. In

11 particular, in the Blaskic appeal, the Defence challenged the validity of

12 the failure to punish aspect of superior responsibility precisely because

13 there is no causal nexus to the crimes. Blaskic argued that the creation

14 of criminal responsibility for failing to punish a subordinate's unlawful

15 act without any nexus to the prevention of the commission of future

16 crimes must be considered to exceed the scope of the Statute.

17 The Blaskic Appeals Chamber specifically cited this argument at

18 paragraph 78 of the judgement before rejecting the corresponding Defence

19 ground of appeal. The Appeals Chamber went on to uphold Blaskic's

20 conviction for grave breaches of the Geneva Conventions based on his

21 failure to punish, and that's at paragraph 633 of the Blaskic appeal

22 judgement. So the Appeals Chamber very clearly employed failure to

23 punish as a mode of liability notwithstanding the absence of the direct

24 causal link.

25 In considering the validity of this result, we need to look at

Page 81

1 the issue, not through the lens of domestic criminal law, but through the

2 distinctive lens of IHL and armed conflict out of which the command

3 responsibility concept grew. As the Appeals Chamber emphasised in the

4 Hadzihasanovic command responsibility appeal decision at paragraph 14,

5 command responsibility is derived from the notion of responsible command,

6 which is the trigger for both the rights and duties conferred by IHL. So

7 when a soldier in the field kills another human being in combat, he

8 benefits from the immunity IHL grants against personal criminal

9 culpability because he is acting under a responsible command.

10 Conversely, a commander is responsible for the crimes of his subordinates

11 unless and until he dissociates himself by taking necessary and

12 reasonable steps.

13 That's not to say, Your Honours, that the principle of personal

14 culpability is irrelevant to an assessment of superior responsibility.

15 But the contours of the doctrine as it's developed under international

16 law have sufficient limitations built in. It is not strict liability or

17 even liability based on a negligence standard, it is not liability that

18 can be imposed unless a superior is actually in a position to effectively

19 control his subordinates, and a commander is not expected to be the

20 impossible. His responsibilities are assessed by what is reasonable in

21 the circumstances in which he is operating. In sum, the failure to

22 punish aspect of superior responsibility is a valid exception to the

23 causation requirement that operates within fair and reasonable limits.

24 It's justified having regard to the distinctive factors of the doctrine

25 that find no parallel in domestic criminal law; and, in particular, the

Page 82

1 special relationship of effective control between the superior and the

2 subordinate and the critical role that commanders play in the enforcement

3 of IHL.

4 As the ICRC commentary to Article 86 of Protocol I notes: "In

5 fact, the role of commanders is decisive. Everything depends on

6 commanders and without their conscientious supervision, general legal

7 requirements are unlikely to be effective."

8 THE INTERPRETER: Could counsel please slow down a little. Thank

9 you.

10 MS. JARVIS: The implementation of international humanitarian

11 law, and thereby the protection of the most vulnerable people on earth,

12 depends on the preservation of superior responsibility as a genuine

13 deterrent. That's why a superior responsibility has developed under

14 customary law as a mode of liability for subordinates' underlying crimes,

15 and I submit that's also why the Appeals Chamber of this Tribunal has

16 upheld this application of the doctrine in cases before this Tribunal.

17 Your Honours, I'll move now to my second issue, and that is the

18 manifestly inadequate sentencing.

19 The two-year sentence imposed on Oric does not meet the

20 Tribunal's main sentencing objectives of retribution and deterrence. A

21 two-year sentence for a commander who chose not to take steps to prevent

22 the murder of four prisoners in his custody and the prolonged cruel

23 treatment of five others does not duly express the international

24 community's outrage over these crimes, nor does it provide a meaningful

25 incentive for commanders in the future to take their IHL obligation

Page 83

1 seriously and to use their powers to impose order in the chaos of

2 conflict.

3 I'm going to focus in my submissions on just two factors, two of

4 the primary factors leading to the Trial Chamber's trivialization of the

5 crime committed and the inadequate sentence imposed.

6 First of all, the characterization of superior responsibility as

7 in the Chamber's word a mere dereliction of duty; and, secondly, the

8 Trial Chamber's erroneous consideration of the prevailing humanitarian

9 crisis in Srebrenica as the pivotal factor in determining sentence.

10 Your Honours, moving to the first of those topics, as I

11 explained, the Appeals Chamber has previously treated superior

12 responsibility as a mode and not a separate crime of dereliction of duty.

13 In this case, the Chamber was wrong to find, in paragraph 724, that sui

14 generis nature of superior responsibility allowed for even greater

15 flexibility in determining sentence; and in echo of that theme, I would

16 also point Your Honours to the judgement pronouncement, transcript page

17 16657.

18 The Chamber referred at various junctures throughout the

19 judgement to superior responsibility as a mere dereliction of duty. For

20 example, in paragraph 293, the Chamber said that: "Superior

21 responsibility is characterized by the mere omission of preventing or

22 punishing crimes committed by subordinate others, and further that the

23 superior is held responsible merely for his neglect of duty with regard

24 to the crimes committed by others."

25 The Chamber's approach is entirely at odds with the Appeals

Page 84

1 Chamber's pronouncement in the Celebici case that responsibility of a

2 superior is not per se less serious than the conduct of the subordinate

3 perpetrators, and that's at paragraph 735.

4 To that, I would also add the 11 bis decision in the Delic case

5 of 9 July 2007 at page 9, noting that the accused is no less culpable for

6 his failure to act under Article 7(3) than he would be for the commission

7 of crimes under Article 7(1).

8 And, thirdly, Your Honours, we have to bear in mind the

9 privileged position of power and control occupied by the superior and the

10 crucial duty he is entrusted with to enforce IHL. The breach of a

11 commander's duty is inherently very grave. Ultimately, the two-year

12 sentence imposed on Oric is solid proof that the Chamber viewed a

13 superior's breach of duty as a trivial matter. Even if Your Honours were

14 to agree with the Trial Chamber that superior responsibility is a

15 separate dereliction of duty crime, we ask you to make it clear that it

16 is not a trivial offence and that it will attract a meaningful penalty.

17 Your Honour, the second factor I'm going to consider is the

18 prevailing circumstances in Srebrenica as the pivotal factor in

19 determining sentence. The Trial Chamber expressly stated that this was

20 its pivotal consideration in establishing Oric's sentence at paragraph

21 767. Your Honours, the Trial Chamber accepts that the Trial Chamber was

22 entitled to take into account Oric's youth and the enormous burden placed

23 on his shoulders at the time of the crimes, but he was given separate

24 credit for those factors, and I refer Your Honours to the trial judgement

25 at paragraph 755 to 757. Our concern is that Oric should not have been

Page 85

1 given separate credit for the generally difficult or chaotic

2 circumstances confronting Srebrenica.

3 Your Honours, there is a disconnect between the Trial Chamber's

4 sentencing analysis and the findings in the body of the judgement, which

5 confirm that the prevailing circumstances had no impact on Oric's ability

6 to exercise effective control or to take necessary and reasonable

7 measures to prevent crimes. It was his choice to do nothing. In

8 particular, at paragraph 771, the Chamber found, and I quote: "That Oric

9 was not reasonably impeded from fulfilling his duty, nor was he

10 constrained by impossibility, and yet he preferred to do nothing." And

11 further: "Oric wilfully decided not to do anything about it, not even at

12 least to try and inquire about the situation of the prisoners."

13 So the prevailing circumstances did not impede Oric's ability to

14 perform his command function; it was his preference to do nothing. Your

15 Honours, the Appeals Chamber's case law rules out the generally harsh or

16 chaotic context of war as a mitigating factor for war crimes, and I point

17 Your Honours to Blaskic appeals judgement paragraph 711 and the Bralo

18 appeal judgement at paragraph 413.

19 Your Honours, the Bralo case is instructive because the

20 Trial Chamber accepted that there was a demonstrating military and

21 political situation in Central Bosnia between 1992 and 1993, that there

22 was tension, animosity, enormous pressure placed on everyone, and that it

23 was notorious that such pressure existed. So the Bralo Appeals Chamber,

24 in rejecting these factors ...

25 JUDGE SCHOMBURG: One second, please.

Page 86

1 [Appeals Chamber confers]

2 JUDGE SCHOMBURG: Sorry for this interruption.

3 MS. JARVIS: Your Honours, I'll conclude. The Trial Chamber's

4 analysis of the prevailing situation in Srebrenica boils down to the fact

5 that Oric was party of a very difficult war against militarily superior

6 Serb forces in the humanitarian crisis of Srebrenica. Out of sympathy

7 for the plight of the Bosnian Muslims, the Chamber lost sight of the

8 gravity of the crimes at issue which should have been the pivotal

9 sentencing consideration.

10 Your Honours, this is a dangerous path for international criminal

11 law to pass down. It resurrects shades of the long discredited just

12 cause theory, whereby breaches of IHL are excused if committed by a party

13 to the conflict with a just cause. IHL applies equally to both sides of

14 the conflict regardless of who is militarily superior and regardless of

15 the validity of their cause. The Chamber was wrong to treat the plight

16 of the Bosnian Muslims in Srebrenica as a factor mitigating Oric's

17 crimes, or alternatively it was wrong to give it so much weight in

18 mitigation.

19 Your Honours, those -- that concludes my submissions and I'll

20 take any questions or hand the floor to Ms. Baig.

21 JUDGE SCHOMBURG: There's apparently no question; however, I have

22 to state that there are only five remaining minutes, taking into account

23 the short break, for the Prosecution right now.

24 MS. JARVIS: Okay. Thank you, Your Honour.

25 JUDGE SCHOMBURG: Thank you.

Page 87

1 [Prosecution counsel confer]

2 MS. BAIG: Your Honours, in the very little time that remains for

3 the Prosecution appeal, I'd like to begin by answering two of the

4 questions raised in our addendum to the Scheduling Order. First, with

5 regard to question 5, the Prosecution agrees with the Defence that the

6 date of death of Mizret Halilovic was 16 January 1993, and we draw your

7 attention to Exhibit P507E and Oric's own account in P329, tape 11,

8 page 4.

9 In response to question 6, the Prosecution did not argue at trial

10 for a departure from the Appeals Chamber's Hadzihasanovic interlocutory

11 decision of 16th July 2003. The reason for this is simple, neither the

12 Prosecution nor the Defence at trial knew that the Trial Chamber would

13 break-up Oric's effective control into two separate periods, before and

14 after the 27th of November, 1992.

15 The Defence suffered no prejudice since it fully defended against

16 the allegations of failure to prevent and punish throughout the entire

17 period of the crimes charged. For this same reason, the Prosecution was

18 never in a position to argue against the Hadzihasanovic appeals decision

19 because the factual situation arose only at the time the judgement was

20 rendered. Given the limited time, I would refer Your Honours to our

21 appeals brief with regard to the cogent reasons that we have advanced on

22 appeal that directly undermine the majority of the Appeals Chamber's

23 position that a number of instruments in international law militate

24 against an interpretation of the customary international law norm of

25 command responsibility which could include a successor/commander factual

Page 88

1 situation.

2 I think that it's best that I open myself to questions if I can

3 assist the Chamber in any way in relation to the successor/commander

4 problem.

5 JUDGE SCHOMBURG: It seems not to be the case, and I think it's

6 clearly litigated and we know about the question before us. Therefore,

7 thank you for your submissions.

8 The reason why we had this short break, and without any courtesy

9 interrupting Ms. Jarvis, we thought that it would be wise to have the

10 long lunch break already now, so that we can fully contritely listen to

11 further submissions. I can see no objections from the parties; and,

12 therefore, we will resume at 2.00 sharp.

13 --- Luncheon recess taken at 12.34 p.m.

14 --- On resuming at 2.01 p.m.

15 [Appeals Chamber and legal officer confer]

16 JUDGE SCHOMBURG: Please understand that I want to avoid the

17 impression that we have an accused today present here, so let's change

18 the seats first. As regards in our following schedule, as you all know,

19 we have to change the tapes, so we can't continue until the very end of

20 the day without having another break. We will now continue with the

21 response and the reply, having then another break of 20 minutes and then

22 continue as scheduled.

23 Mr. Jones, you have the floor.

24 MR. JONES: Thank you, Your Honour. I'm obliged.

25 I'm going to deal with the Prosecution's appeal, but not in the

Page 89

1 strict order in which they've presented it. I beg your indulgence in

2 that respect.

3 I deal first with the Prosecution's plea for a longer sentence,

4 and I start with three basic principles of sentencing: Firstly, that the

5 penalty must reflect the culpability of the offender; second, and here

6 there's authority too abundant to mention, but that the Trial Chamber has

7 a wide discretion in the sentence it imposes; and, thirdly, and

8 particular to this appeal, the Appeals Chamber has held that double

9 exposure to sentencing with the consequent stress and anxiety amounts to

10 double jeopardy, and that's Aleksovski appeals judgement paragraphs 190

11 to 363.

12 In this case, the Trial Chamber was at pains to stress the

13 extraordinary limited basis on which they found Oric liable, and I quote:

14 "The present case is unique in its particulars, and no real comparison

15 can be drawn with other previous cases, both in regard to the accused's

16 very limited responsibility and the extraordinary circumstances in which

17 he operated." That's paragraph 780.

18 At paragraph 771, the Chamber said: "The Trial Chamber comes to

19 the conclusion that it was a short time following the replacement of

20 Mirzet Halilovic with Atif Krdzic and the commencement of the Serb winter

21 offensive."

22 I break there because this was a very important part of the case,

23 that there was this terrible offensive which would have led to the fall

24 of Srebrenica in April 1993. We said and witnesses backed us up that

25 what happened in July 1995, the genocide, the massacres in two or three

Page 90

1 days of 8.000 boys and men in killing fields around Srebrenica, that that

2 would have happened in April 1993 if it hadn't been made a safe area, and

3 that's what this winter offensive is about.

4 So I continue: "During that time, the accused had a duty to

5 prevent the reoccurrence of murder and cruel treatment of prisoners.

6 During this short time, he was not reasonably impeded from fulfilling

7 this duty, nor was he constrained by impossibility."

8 I break there to say that is one of our ground of appeal, this

9 impossibility test.

10 They continue: "Yet he preferred to do nothing."

11 THE INTERPRETER: Please read slowly, please.

12 MR. JONES: Now, you won't come across, in our submission, words

13 like that in any other case before this Tribunal; and the situation in

14 1992 to 1993, as the Chamber heard with copious evidence, was truly

15 appalling and had the most tragic outcome of which our client was himself

16 the victim, having lost scores of friends and relatives in the massacres

17 in 1995.

18 So the Trial Chamber had the benefit of hearing for a year and a

19 half all the poignant evidence about the situation in Srebrenica, seeing

20 the footage, amputations in the hospital without anaesthetic, and matters

21 like that which everyone had to endure. They knew in the midst of that

22 he displayed humanity to all, to Serb and Muslim alike. It's not

23 evidence that we rely on; but if you look at the Prosecution's evidence

24 of alleged visits by Oric, it's always about inquiring as to the

25 condition of the detainees, whether they're being fed and whether they're

Page 91

1 being mistreated. We see with Halilovic his intervention there. Let's

2 not be hypocritical, in a situation where in Srebrenica, every day people

3 were dying from starvation from the sniping and shelling campaign by the

4 Serbs, dying horrifically, being injured horrifically, we had a witness

5 here who was a boy, who was blinded from a shell from the Serbs, that

6 hearing of one detainee who had been killed or possibility, we'll come to

7 actually what Oric heard, nonetheless, was so concerned, even though he

8 was defending the lines against -- so they wouldn't fall to the Serbs,

9 that he made sure the War Presidency looked into it and the person was

10 removed.

11 In our submission, that's a very high level of compassion and

12 concern showed for the enemy in the midst of the most terrible adversity.

13 So the Chamber found him liable on the narrowest possible basis, and we

14 say they were wrong to find him liable at all. You know all of our

15 reasons for saying that.

16 But if you accept the conviction, if you allow the conviction to

17 stand despite our complaints, if you are of the view that they didn't

18 amount to errors of fact or law, and still despite all the matters we

19 mentioned, you allow the conviction to stand, but the sentence is then

20 viewed in isolation, and you say, simply, well, two years for war crimes,

21 it's not enough, then that's the ultimate injustice, because the sentence

22 is hard-wired into the whole approach taken by the Chamber to this case,

23 into the factual matrix. You can't just extract it and look at the

24 sentence apart from all that.

25 We have one illustration of that which is the phrase in the

Page 92

1 judgement that, due to the ultimate disposition of this case, the Chamber

2 was satisfied that we weren't too prejudiced by the breaches of

3 disclosure. The Trial Chamber found the breaches of Rule 68, and it said

4 all in all we weren't prejudiced. So what it really meant, the Trial

5 Chamber, was that with a two-year sentence, Oric was immediately

6 released. So the sentence reflects all sorts of thing that happened at

7 trial; and, as I say, it can't be viewed in isolation.

8 This finding by the Chamber of these extraordinary circumstances

9 came from a Chamber which heard Prosecution witnesses, I'll just give you

10 two examples, saying things such as the following: This is Nedret

11 Mujkanovic on the 21st of February 2005, T5363, this is a doctor in the

12 War Hospital doing heroic work savings lives there.

13 "He was a very young person, this Oric. He carried a tremendous

14 burden. He was only 25 years old and had no prior military experience

15 because he used to be a policeman before that. People used to sing songs

16 about him, so he was immortalized in several songs that were played and

17 performed. He was known as a very brave, very able fighter. This is

18 what people said about him in Srebrenica; this is how people saw him."

19 Before that, he said how Oric never blew his own trumpet, if you

20 like, but only extolled the virtues of others. Colonel Tucker, the

21 British colonel who was awarded the military cross, with great experience

22 in military matters, answered the following question this way.

23 "Q. As a military commander with his appalling possibility of

24 the lines falling, the town falling, and ensuing massacre, do you agree,

25 as a decorated military man, that this is a terrible burden for a

Page 93

1 commander, certainly a young commander, to bear."

2 He replied, as a Prosecution witness, Colonel Tucker, T6139: "He

3 was operating in the most adverse and most difficult of circumstances. I

4 cannot imagine having to operate in such circumstances."

5 Now, the Prosecution refer to Bralo, and, in fact, they had a

6 separate filing on Bralo, saying it is wrong for the Chamber to take into

7 account the armed conflict because that's the very matrix in which the

8 crimes occur. But Srebrenica, in 1992 and 1993, firstly was a million

9 miles away from the situation in Central Bosnia; but, secondly, and this

10 is the absolutely key point, it wasn't because the Trial Chamber because

11 it sympathized with what he had been through, that they were giving him a

12 lesser sentence. It was because of this appalling threat that he didn't

13 take action, that he didn't do more to prevent crimes. That was the

14 Trial Chamber's understanding that the reason why he didn't actually do

15 more, and they blamed him for it. They convicted him for it.

16 It was because he had to deal with this. So it's not that he

17 chose sitting in tranquility and was given the option, "Well, do you want

18 to prevent murders," and he said, "Well, no, I don't care about Serb

19 life." It was because he was on the lines fighting to prevent thousands

20 from being killed, and that was the crux of the Trial Chambers

21 mitigation, if you like.

22 I believe that's all I want to say about sentence.

23 Turning to the ground that Oric is guilty of the murder and cruel

24 treatment crimes that he failed to prevent, the Prosecution referred to

25 the fact that causation isn't a requirement, as if it were relevant to

Page 94

1 this issue. Really, in our submission, causation is a red herring

2 because, of course, the duty to punish a crime can't have a causal

3 element because the crime already occurred.

4 Really, all we say in relation to this ground is that there is an

5 abundant authority for the proposition -- position taken by our

6 Trial Chamber that the crime is a dereliction of duty offence. In ICTY

7 law, ICTR law, Special Court for Sierra Leone recently affirmed it in the

8 Brima and the Fofana cases. And post-World War II case law, Yamashita

9 and High Command case, both in our submission indicate that it's a

10 failure to discharge his duty crime. So we say no error of law has been

11 demonstrated.

12 The sort of policy matter, in our submission, it's not a

13 principle to stand to say that Oric should have been found guilty of

14 murder and cruel treatment; rather, it's a call for him to be branded

15 with the mark of Cane, when in fact his liability is so much more

16 attenuated. At best, it's a liability for failing to prevent

17 subordinates from aiding and abetting by omission and it goes on; and yet

18 the Prosecution wants the world to see Oric and say murderer. That's

19 wrong in our submission.

20 They also, to be fair to the Prosecution, they talk about

21 deterrence; but to suppose that a commander in the field is going to

22 modify his behaviour depending on whether he stands to be convicted of

23 murder or dereliction of duty is, to our mind, completely unrealistic.

24 That's not the sort of calculation is commander is going to enter into.

25 Since time is short, I'll just list our authorities supporting

Page 95

1 obviously the Trial Chamber position, which say is sustainable.

2 At Krnojelac appeals judgement, paragraph 75: "It cannot be

3 overemphasized that where superior responsibility is concerned an accused

4 is not charged with the crimes of his subordinates with his failure to

5 carry out his duty as a superior to exercise control."

6 The Bagilishema appeals judgement, paragraph 35. His Honour

7 Judge Shahabuddeen's dissenting opinion in the Hadzihasanovic decision:

8 "Command responsibility imposes criminal responsibility on a commander

9 for failure to take corrective action --

10 THE INTERPRETER: Slow down, please. Thank you.

11 MR. JONES: -- in respect to a crime committed by another; it

12 does not make the commander a party to the crime committed by the other."

13 Well, if it does make him a party, then, in our submission, it's

14 not accessorial liability either.

15 JUDGE MERON: [Microphone not activated]

16 THE INTERPRETER: Microphone, please.

17 MR. JONES: Yes, I'll repeat it. It was: "Command

18 responsibility imposes criminal responsibility on a commander for failure

19 to take corrective action in respect to a crime committed by another; it

20 does not make the commander a party to the crime committed by that

21 other."

22 Judge Hunt took the same position in his dissenting opinion; the

23 Halilovic trial judgement at paragraph 78, and the reference is there in

24 paragraphs 38, 41, 54.

25 Hadzihasanovic trial judgement, paragraph 75; Strugar trial

Page 96

1 judgement paragraphs 357, 359; and as I say Fofana and Brima, the CDF and

2 RUF trials at the Special Court.

3 We do also say that the High Command case in Yamashita has

4 language to the same effect; but in the interest of moving on, I won't

5 cite that. I'll just mention, in relation to the ICC, on its position of

6 Professor Kai Ambos, that Article 28 there creates a separate dereliction

7 of duty offence. Article 28 can be characterized as "a separate crime of

8 omission, since it makes the superior liable only for a failure of proper

9 supervision and control of his or her subordinates, but not," at least

10 not directly, "for crimes that they commit."

11 That's in the Cassese and others commentary to the ICC Statute.

12 Just while I mention Ambos, I just want to mention Ambos, and I just want

13 to correct one matter, which is in our response brief. We cited an

14 article by Ambos. We had received an earlier draft where he had certain

15 wording. Apparently, that wasn't the final draft. So, in the final

16 article, those words don't appear, so we would withdraw those words, and

17 apologise if anyone's been misled.

18 So, in our submission, the case law and commentaries clearly

19 establishes the position taken by the Trial Chamber.

20 Now, I'd like to move on to documents as a general topic. My

21 learned friend Mr. Rogeres referred to a number of documents in relation

22 to their ground 1. Now, interestingly, I would like to start with what

23 the Prosecution say in their response brief at paragraph 109, and they

24 refer to Kunarac appeals judgement at paragraph 207, for the primacy of

25 eye-witness testimony, and they say: "The Trial Chamber was correct to

Page 97

1 place more weight on eye-witness testimony than the documentary

2 evidence."

3 And that's our starting point, really. What you wouldn't

4 understand, what you wouldn't gather from the Prosecution's presentation

5 is how thoroughly and completely impeached their exhibits were at trial.

6 They were impeached by witnesses or not shown to witnesses; although,

7 there's an interpretation or a spin on the document which no witness

8 confirmed, and that's separately one of our grounds of appeal. But just

9 to give you a few examples.

10 P80 was referred to by my learned friend. Now, P08, a

11 Prosecution witness, Hakija Meholjic, said, and this is T6963: "I

12 believe that this has nothing whatsoever to do with the reality of the

13 situation on the ground. This looks like a very good homework somebody

14 was given to do and did really very well." You can here the sarcasm in

15 his voice.

16 "However, this document has nothing whatsoever to do with the

17 reality of the situation at the time," and other witnesses described P80

18 as pure fantasy, not even 100 per cent correct, et cetera.

19 Now, can you think of a more damning enunciation of a document by

20 a Prosecution witness and to say it has absolutely nothing to do with

21 reality. Yet it is still relied upon by the Prosecution, and the

22 Trial Chamber relied on it and referred to it.

23 P109 was also referred to. That was -- the evidence is simply

24 that was an report by the staff on formations and appointments made by

25 the War Presidency. That was the evidence of Sacirovic at T13289. And

Page 98

1 Bogilovic, Prosecution witness, testified that the very reference in P109

2 to a decision of the TO staff was probably a mistaken formulation.

3 That's T6425. No witness confirmed the truth of the contents of this

4 document.

5 P109 -- sorry, P4 was very similar. No witness confirmed the

6 truth, accuracy, reliability, authenticity of P4. Many Prosecution

7 witnesses, in fact, cast doubt on it. We've got all the references, and

8 we provided the references. In fact, we had many of these references in

9 an annex B to our response brief, but that was struck out. But I think

10 you'll find in our appeals brief and our closing brief that you'll find

11 what we say about these exhibits.

12 And, finally, just on that, we saw this list of military police.

13 It was said, well, it was a big unit and look at how many people were in

14 it. But, again, one has to look at what witnesses said about this. Two

15 witnesses said that Sead Ademovic, who appears on P590 and P609, said

16 that he wasn't in the military police at all, and there was evidence that

17 people on that list weren't even in Srebrenica at the time. So that

18 paper, that exhibit is practically worthless. It's a suggestion that

19 people were in military police which were actually not just not confirmed

20 but impeached, and it's T13202, T14662 to 14663.

21 What we complain of - I'm responding to the Prosecution's appeal,

22 but I can't help also mentioning our position - is that the Trial Chamber

23 erred terribly by regarding these as authentic, as having been proved as

24 authentic beyond a reasonable doubt, and even beyond that committing the

25 fallacy of thinking what if something's authenticity and its contents are

Page 99

1 true. Of course, that doesn't follow. A document can be authentic in

2 the sense that it's properly signed by the purported author, and yet its

3 contents are completely false. The Trial Chamber has systematically

4 conflated those two issues.

5 Interestingly, in looking on case law on this, I found a decision

6 in the Blaskic Trial Chamber from the 30th of January 1998, holding that

7 documents shown to a witness that are not identified are excluded. That

8 happened many times in our case where the documents weren't excluded.

9 What's interesting to know of that case is that it concerned Defence

10 exhibits, and it's sad if there's a perception, justifiable perception,

11 that Defence exhibits get excluded if they're not confirmed, and their

12 not Prosecution exhibits.

13 But why, you might wonder, why these exhibits are so unreliable,

14 and there are two reasons which we submitted throughout the trial. The

15 first, as the Trial Chamber found, the situation in Srebrenica was

16 uniquely chaotic and disorganized, and, therefore, aspirations on paper

17 often didn't reflect the reality.

18 Prosecution witness General Delic put it and he said: "The paper

19 will suffer anything." And when I asked him what that meant he said:

20 "This is an expression that we use in Bosnia which means you can put

21 anything on paper; however, when it comes to implementation, this is

22 where the problems arise." That's T8694.

23 Another witness said to the Prosecution: "I can't think where

24 you get your documents from; you must have realized they contradict one

25 another." T11153.

Page 100

1 The other reason why the documents are so unreliable is, as we

2 pointed out, when Srebrenica fell, and with these terrible massacres, all

3 of the documents in Srebrenica fell into the hands of the Serbs, the very

4 forces who had the ultimate incentive to try and shift the blame if at

5 all possible. It's been a long-term propaganda exercise on the part of

6 the Serbs, to say that they were provoked to commit the massacres in

7 1995; and, of course, our client is part of that whole conspiracy

8 theory -- well, conspiracy theory, that pretext.

9 That's referred to at footnote 68 of the judgement. In fact, the

10 Prosecution themselves have, said in relation to Srebrenica, that the

11 Serb authorities cannot be trusted in any serious matter because they

12 were systematically distorting the truth about Srebrenica. So I'll come

13 back to that later today, but that was why throughout the trial we

14 insisted -- we submitted that the Chamber should be extremely circumspect

15 with these documents. And, as we say, that's our grounds of appeal, but

16 it's also our response to a lot of what the Prosecution has said in

17 relation to their appeal.

18 But the Prosecution's approach has always been that we can have

19 almost a trial by correspondence, that wasn't doesn't need witnesses;

20 just look at these exhibits, even if they were impeached, even if no one

21 confirmed their contents. So, as we pointed out in the respondent's

22 brief, in terms of live witnesses, the Prosecution only cited three

23 witnesses out of the 79 who testified at trial in their appeal, and only

24 one of them was even in Srebrenica at the time. Hogic who was referred

25 to was not in Srebrenica. So whatever he said about military police was

Page 101

1 speculation based on the situation in Tuzla, a much better-organized town

2 than Srebrenica which was under siege.

3 And no prizes for guessing who the one witness is in Srebrenica

4 who is relied upon. It's Bogilovic, the Bogilovic who was found to be so

5 evasive when he testified that Judge Agius had to repeatedly reprimand

6 him, and he went to far as to say that he didn't believe a bit of what he

7 was saying: "I don't believe that a little bit, Mr. Bogilovic." And he

8 had the highest incentive for not telling the truth because, as I said,

9 he would have been in the dock otherwise.

10 The four other matters, factual matters, arising from my learned

11 friend and Mr. Rogeres' submissions, he mentioned our client's interview

12 and relied on the interview, as the Prosecution does. Time and again, as

13 was said in the interview, it was just taken out of context. That's our

14 first observation.

15 Secondly, you have our ground 13, which is that the translation,

16 among other things, was so poor that, really, there was such scope for

17 confusion that it should have been excluded in the interests of the

18 integrity of the proceedings.

19 Thirdly, the Trial Chamber and the Prosecution repeatedly treated

20 it as sworn testimony, so that anyone hearing the appeal or reading the

21 judgement would think that Oric gave evidence under oath and was

22 cross-examined, which, of course, he didn't, and the Trial Chamber didn't

23 follow its own strictures in that regard.

24 But if you look at it, especially the section on Halilovic which

25 we'll come to, you'll see also that Oric there seemed to think that

Page 102

1 Krdzic was the head of the civilian police. So you'll see how much

2 confusion there was at the time. The gist of the Prosecution's

3 submissions is that you can presume an organized military hierarchy in

4 Srebrenica.

5 The Trial Chamber --

6 JUDGE SCHOMBURG: Would you please, in particular in the

7 interests of the French translators but also the other interpreters, slow

8 down a bit.

9 MR. JONES: Yes, my apologies.

10 JUDGE SCHOMBURG: Thank you.

11 MR. JONES: The Trial Chamber didn't find that Oric was at the

12 apex of a command structure; they found that he was only in charge of a

13 group -- of his group of fighters in Potocari, a group of 20 to 30

14 fighters. That's at footnote 402 of the judgement.

15 The situation in Srebrenica of the fighters there trying to

16 organize themselves would be comical if it weren't so tragical. There

17 was evidence given at one point of a commander, a group of fighters, who

18 would beat his troops if they asked for basic equipment. It was so

19 primitive that actually even asking for equipment gets you beaten by your

20 superior. There are many other examples.

21 So, if you bear that in mind when we turn to P84, the so-called

22 war diary or memo pads, the Trial Chamber and the Prosecution rely on

23 that hugely. But I'll ask you to look at the original firstly, and

24 you'll see it just scrolls in different hands even. You know from our

25 own experience, even more auspicious circumstances, maybe even in minutes

Page 103

1 of meetings in Chambers, mistakes are made about who was there maybe or

2 what was said by whom.

3 Imagine in the midst of an armed conflict in Srebrenica where

4 paper often wasn't even available and there's shelling and sniping going

5 on, there's great scope for that memo pad being unreliable. So wouldn't

6 it be useful to actually call the author of P84 to give evidence? The

7 Prosecution knew who the author was; it's Mustafa Salihovic. He was on

8 their 65 ter list, but they didn't call him. So everything on P84 is

9 just so much speculation. It's just open a page and, oh, well, it looks

10 like so-and-so was present when this was discussed.

11 But look at the original and see whether there's any basis for

12 that, as I say, armchair theorizing. In a criminal trial, there should

13 have witness who said, "I was at that meeting. Krdzic was there. Oric

14 was there. This was said." We never had any of that evidence, well, I

15 mean to that extent. You'll see the evidence. I don't want to make an

16 over-sweeping statement.

17 JUDGE SCHOMBURG: May I ask you one question. If you find P84 in

18 that way unreliable, was any attempt on the part of the Defence to call

19 the author of this document?

20 MR. JONES: No, to be perfectly honest. We considered it. We

21 also considered that it was for the Prosecution to prove their case

22 beyond reasonable doubt. What we did do is we insisted on a better

23 translation being provided because we became aware of all sorts of

24 problems in the translation, and that was a subject of a motion and there

25 was a later corrected translation.

Page 104

1 The Trial Chamber didn't call Mustafa Salihovic either. I just

2 know that because they did call their own witness. They exercised the

3 right of the Chamber to call evidence. They called a graphologist. But

4 why didn't they call Salihovic if P84 was so important. Not only that,

5 when one looks at P84, it helps us to the extent of actually if believed,

6 it would lead to an acquittal.

7 Sorry, one moment.

8 [Defence counsel confer]

9 MR. JONES: In fact, the war diary shows that it was the War

10 Presidency which proposed reorganizing the military police and which

11 therefore had authority over it. That's at page 84 of the English, and

12 that's ERN 0211-5078 -- sorry, page 55, it's P84. Osman reported on the

13 position of the RP, that's Ratno Predsjednistvo, War Presidency,

14 regarding the reorganize of the VP, military police. That was dealt with

15 by Djilovic. We always actually showed P84 to witnesses and got their

16 confirmation of our theories. That's Djilovic, T15420 to 15421.

17 So my learned friend talks about there being a fledgling War

18 Presidency. It was a fledgling military police; and, again, their own

19 witness, Bogilovic, testified that it couldn't function at all, the

20 military police, right until demilitarisation. He said it didn't have

21 the conditions to work during the whole indictment period, and he also

22 said, very important, the military police would only be accountable to

23 the army in theory, but in reality it didn't work that way. The

24 references are T6426, T6430, T6433.

25 He also said: "There was always a problem in terms of seniority.

Page 105

1 We didn't know whether the Presidency came first or the staff. It was

2 here that I finally found out that the army was subordinated to the

3 army," that's what he said, "and independent of the Srebrenica

4 Presidency."

5 And as we said, we find that troubling that here, which can only

6 mean in The Hague, he discovered how things had functioned before, but

7 which to us suggests that the investigators were somewhat overzealous in

8 proofing, because obviously what's important is what his impression was

9 at the time, not whether he changed his mind when he cam here.

10 I think I'm probably running short on time. I wanted to address

11 the premise of the Prosecution's ground 1, which was that the military

12 police was de jure under Oric. We've showed with Prosecution exhibits

13 that it wasn't only not de jure under him, it was actually ultra vires

14 for the military police to be in the TO staff. That's dealt with P253,

15 Hogic, T8146, and P123.

16 I'll just say in a nutshell, what those exhibits show is that

17 there were directives from the RBiH that municipal TO staffs were not to

18 have military police units. They were forbidden to have military police

19 units. Those units could only be established at the district or regional

20 level, and that was borne-out by testimony and exhibits, in essence

21 because the higher-level authorities didn't want abuse at the lower level

22 by military police units being established in small towns or

23 municipalities.

24 I also wanted to mention Judge Omerovic who was in Srebrenica and

25 who also testified that absolutely nothing worked in Srebrenica according

Page 106

1 to the rules, a Prosecution witness.

2 I wonder if I can ask for an indication of how much longer I've

3 got.

4 JUDGE SCHOMBURG: [Microphone not activated]

5 MR. JONES: I've got much more time than I thought.

6 JUDGE SCHOMBURG: [Microphone not activated] -- for all of us.

7 MR. JONES: I'm obliged and I apologise again.

8 Now, we also say, in relation to ground 1, that the Chamber's

9 predicate findings, many of which we disagree with, that their reasoning

10 from those findings was sustainable, and there are about four which are

11 challenged by the Prosecution which we would defend.

12 So the fact, if it were a fact - we deny it - but if it were a

13 fact that the Srebrenica armed forces established the military police,

14 the Chamber said that doesn't establish who controlled it. And we say

15 that is a reasonable conclusion open to the Chamber on the evidence. A

16 mere fact of establishment doesn't show who had effective control.

17 That's a perfectly reasonable conclusion.

18 The military police was not de jure subordinated to anyone when

19 established, if that's the conclusion which follows from the judgement,

20 but that's also -- that was open to the Chamber to find on the evidence

21 that the situation was so chaotic, the evidence of Meholjic, Bogilovic,

22 Mujkanovic, Omerovic, and all Defence witnesses, that nothing functioned

23 according to the rules. So it was open to the Chamber to say, well, if

24 there was such chaos, then that could be the position.

25 I should mention, and you may well be aware of it from your

Page 107

1 reading of the evidence already, but Srebrenica initially in April 1992

2 was occupied by the Serbs, and they burned and looted and then they were

3 ejected. And with the exodus of people from Srebrenica, all the educated

4 people - the judges, the prosecutors, anyone with a university education

5 or functionaries - all left. And practically everyone in Srebrenica were

6 people only with a primary school education at best.

7 So you see, and we heard at trial, how nobody knew how things

8 should or did run. So it was open to the Trial Chamber to say the MP was

9 just disorganized at the beginning, not subordinated to anyone.

10 The de jure authority does not equate to de facto control was a

11 conclusion open to them on the evidence; and, in fact, in our submission,

12 in relation to what I said about how you couldn't even -- you weren't

13 even allowed to have military police units in Srebrenica TO, there's

14 nothing for that Celebici presumption to even bite on. You know, there

15 wasn't a de jure -- finding de jure authority which would lead to any

16 rebuttable presumption that there was de facto control.

17 If there were such presumption, it would be a purely evidentiary

18 one because legal burdens on the Defence are a violation of Article 6,

19 and that's been held in Lambert and other cases. An evidential burden is

20 pretty easy to discharge, as long as we create a reasonable doubt, and we

21 say there was certainly reasonable doubt in the first period about

22 effective control.

23 So, in sum, the Prosecution's binary approach, if you like,

24 either Oric controlled the MP in the first period or someone else did is

25 overly simplistic. Maybe no one controlled it. That's what chaos is.

Page 108

1 But, in fact, as you know, our submission is that the MP were, in fact,

2 part of the civilian police, part of the SJB under Bogilovic.

3 The Prosecution also say, well, chaos can explain why there was

4 lack of effective control, but it can't explain lack of de jure

5 authority. In our submission, that doesn't follow for reasons I've just

6 set out.

7 So it was open to the Trial Chamber to find that no one had

8 effective control over the MP in the first period and certainly to find a

9 railroad that Oric did. Just give me a moment.

10 I'll turn now to Prosecution ground 1H, the suggestion that the

11 Appeals Chamber should overrule your previous ruling in Hadzihasanovic,

12 that a commander may become responsible for crimes committed by

13 subordinates before he assumed command. If you need to hear from us on

14 that subject --

15 JUDGE SCHOMBURG: Sorry. Let me just come back to another

16 question, when you stated nobody had effective control, it was a

17 submission earlier today that, indeed, Mr. Oric took the necessary steps

18 that Mr. Halilovic would be prosecuted for other reasons in another

19 context.

20 Only to provoke you that we have all possible scenarios open for

21 us, couldn't one argue that having done this, i.e., prosecuting

22 Halilovic, that it emanates from this, that he had, indeed, reasons to

23 know that something was wrong in the area of these detention buildings,

24 and thus he was under the duty to take care that those events had

25 happened under the tenure of Mr. Halilovic would not be repeated under

Page 109

1 the tenure of Mr. Krdzic?

2 MR. JONES: Could I respond to that firstly by saying that, in

3 relation to this matter of Halilovic, what's clear from the interview is

4 that it was a question of Oric reporting to the War Presidency, you know,

5 that something had occurred. Just as a private citizen, I could report a

6 crime. I just mention that at the start.

7 But to answer Your Honour's question, Oric would have known that

8 Halilovic, Mirzet Halilovic, was a problem. That would have been what he

9 would have been clearly aware of, and that that problem would be solved

10 by removing Halilovic from his post; and under the circumstances at the

11 time, that was all that he could reasonably be expected to do, in our

12 submission.

13 Now, you can define "notice" as broadly as you like. Was he on

14 notice only that there was risk from Halilovic? Was he on notice that

15 there was risk in that particular location? Was he on notice that there

16 was risk everywhere in Srebrenica with the detainees? Was he on notice

17 that the crime might soon occur or that it might occur months from then?

18 What we oppose is the "once on notice, always on notice" idea.

19 Let's remember the crimes in the second period that occurred months later

20 in a different place at a different time by different people.

21 We have -- I have the whole extract of his interview, Oric's

22 interview, on this subject, as well as the question of Hogic; Hogic, a

23 Prosecution witness, said that, in no circumstances, no judges, no

24 prosecutors, if the matter were reported to the highest authority, the

25 War Presidency, and they removed the man from his post and he died

Page 110

1 afterwards, that, really, one had done all that they could.

2 Oric wasn't on notice that Krdzic had a violent temperament. In

3 fact, there's no evidence that he did. From the interview, you'll see

4 with Halilovic was from getting drunk, acting like a sheriff, is how it

5 was described. So it was very much a problem of that particular person.

6 In our submission, you can have a problem which is just one person.

7 Of course, the Prosecution dwells a lot on the fact that this was

8 war, and there was a high risk of mistreatment. I mean, that's one that

9 would be true in any conflict, I imagine. There's always a risk. I

10 can't be specific enough on the risk of mistreatment of the enemy.

11 Sorry.

12 [Defence counsel confer]

13 MR. JONES: Shall I continue?

14 JUDGE SCHOMBURG: I thank you very much for this clear

15 clarification, if this not a -- clear clarification. But as regards your

16 question, I don't think that it's necessary to dwell on the legal issues

17 you were about to address.

18 MR. JONES: All right. Thank you.

19 It may be that there was one other matter after that, if you will

20 just give me a moment.

21 Now, in fact, Your Honours, I won't address the Hadzihasanovic

22 issue. If there is time, I could read the extract relating to Halilovic

23 being reported to the War Presidency.

24 JUDGE SCHOMBURG: I think it is helpful for us when we can read

25 it ourselves in camera. It's better to digest.

Page 111

1 MR. JONES: I'm obliged. The reference is P329 V000 to 2920,

2 tape 3 pages 4 to 7. I thank Your Honours.


4 Then it's for the Prosecution to give their submissions in reply

5 for a further 15 minutes.

6 [Prosecution counsel confer]

7 MS. JARVIS: Your Honours, just a few points by way of reply to

8 the Defence submissions. The first one is in relation to the sentencing

9 question raised in the Prosecution's appeal. The Defence have emphasised

10 what the Trial Chamber referred to as the uniquely limited basis of

11 Oric's conviction, and that's a matter that we'll be addressing in more

12 detail tomorrow in our response to the Defence appeal.

13 But I would like to make a comment on the reliance, in particular

14 on a portion in the sentencing reasoning at paragraph 771. I'd like to

15 ask Your Honours to compare this with the findings set out in the body of

16 the judgement at paragraph 570, where the Trial Chamber found, based on

17 the evidence, that: "In the present case, the obligation of the accused

18 to prevent extended over a considerable period of time, namely, from the

19 appointment of Atif Krdzic on 22 November 1992 until the 20th of March,

20 1993, during which time Oric was not always at the front line and found

21 time to attend meetings in Srebrenica at least until the winter

22 offensive, the Serb winter offensive which started in late January or

23 early February 1993."

24 The Chamber continued: "It was not impossibility that stood in

25 the way of the accused preventing the maltreatment of the prisoners, nor

Page 112

1 was it because he was all the time in a situation where one could not

2 reasonably expect him to address such matters. It was his preference not

3 to give the matter any further attention throughout the entire period and

4 not only when he was engaged in military action."

5 That's the basis for our concern that the Trial Chamber erred in

6 finding that Oric's sentence was substantially mitigated on the basis of

7 the prevailing circumstances in Srebrenica.

8 Your Honours, another matter in respect to sentence. The Defence

9 have suggested that the two-year sentence was intrinsically linked to

10 disclosure breaches by the Prosecution in this case, and has referred to

11 the beginning section of the trial judgement where the Chamber commented

12 on this.

13 Your Honours, we submit that the Trial Chamber's comments cannot

14 be meaningfully understood to suggest that they mitigated Oric's sentence

15 on the basis of disclosure breaches during the trial; rather, the comment

16 by the Chamber was directed towards the fact that the ultimate

17 disposition in the case in terms of the convictions entered was more

18 limited than that charged in the indictment.

19 If Oric had received specific sentencing credit for disclosure

20 breaches, you would expect to see a reference to that in the sentencing

21 portion of the judgement. We submit that it would be entirely

22 inappropriate for a Chamber to have done that when, as we've pointed out

23 in our response to the disclosure issues in our response brief, remedies

24 were given for any disclosure breaches that were identified during the

25 course of the trial, and there would be no basis to then tie the sentence

Page 113

1 in this case to those disclosure breaches.

2 Your Honours, in respect of our argument that Article 7(3) does

3 not set out a separate dereliction of duty offence, Mr. Jones has

4 conveyed the impression that the case law of this Tribunal fully supports

5 this characterization. We submit that a fair reading of the pre-existing

6 case law must point in the direction that overwhelming it has been

7 considered a mode of liability; and although it's possible to point to

8 language in the case law which emphasizes a commander's failure to act or

9 dereliction of duty, that's not the same thing as convicting of a

10 separate dereliction duty crime which is what the Chamber in this case

11 did.

12 In particular, Your Honour, the Krnojelac appeals judgement which

13 was specifically relied upon by Mr. Jones, I invite you to look at the

14 disposition in that judgement which convicted Krnojelac or affirmed the

15 convictions made for torture, for example, based on his failure as a

16 superior.

17 Your Honours, the other cases that support our submission in this

18 respect are set out at paragraphs 161 to 163 of our brief and I won't

19 dwell on them, but I would just note that certainly there is a recent

20 trend at the Trial Chamber level of re-interpreting Article 7(3) in the

21 light of a dereliction of duty offence. We certainly acknowledge that

22 that was done in the Halilovic trial judgement; although, as we point out

23 in our brief, the ultimate acquittal of Halilovic was for the underlying

24 crimes of the subordinates, not for a separate dereliction of duty crime

25 and in the Hadzihasanovic judgement. But we submit that's one of the

Page 114

1 very reasons why the Appeals Chamber should at this juncture intervene

2 and correct the direction of the jurisprudence on this matter.

3 Your Honour, Mr. Jones has also relied on the ICC Statute, and

4 not even the ICC Statute, but rather an interpretation of it by a

5 commentator. Your Honours, we've also set out our position on this

6 matter in our reply brief at paragraph 56, and it's clear from the

7 wording, the express wording, of Article 28 of the ICC Statute that that

8 is envisaged as a mode of liability for the subordinates' underlying

9 crimes.

10 THE INTERPRETER: Kindly slow down for the sake of the record and

11 the interpreters, please.

12 MS. JARVIS: Your Honours, I have one final point, and then I'll

13 hand to Mr. Rogers who may make a few brief points in reply on the

14 effective control issue. But the final point relates to a question from

15 Your Honour Judge Schomburg, which Mr. Jones has commented on just prior

16 to completing his submissions, and that is the issue of whether Oric was

17 on notice only of the killing of the prisoner by Halilovic and whether

18 his action in respect of Halilovic was sufficient to have discharged his

19 duty to control the situation and to protect the prisoners.

20 Your Honours, I point you in the first instance to paragraph 550

21 of the trial judgement, where the Chamber specifically found that Oric

22 had actual knowledge, not only of the death of a prisoner and of

23 Halilovic's role in the death of a prisoner - and it's not clear that

24 those two deaths and one and the same - but also of the cruel treatment

25 of the five other detainees. The Chamber specifically finds that no

Page 115

1 action was taken in respect of the cruel treatment, the beatings, as

2 distinct from the death of a prisoner.

3 JUDGE SCHOMBURG: Sorry to interrupt, but this is also this

4 observation these crimes related to the conduct of Mr. Halilovic,

5 correct?

6 MS. JARVIS: Your Honour, there's no suggestion on the record

7 that Oric thought the cruel treatment was related to Mr. Halilovic in

8 particular. What he knew was that Mr. Halilovic had been implicated in

9 the death of one prisoner. But the Chamber also found, based on

10 Mr. Oric's personal observations of the detainees in the prisons when he

11 went on several occasions prior to 16 October, that he had actual

12 knowledge, based on the beatings and the obvious signs of physical

13 mistreatment, that those crimes had taken place. As a result, he was on

14 notice that the problem of prisoner mistreatment was a pervasive one, and

15 there was a climate of prisoner abuse in the detention centre.

16 Your Honours, that's one part of the answer as to why it was not

17 sufficient to simply remove Halilovic, but the other part of the answer

18 is that it's clear from both our case law, and also international

19 precedents more generally, that when it comes to prisoner protection, the

20 obligation on a commander is to both set up a comprehensive system to

21 ensure protection and, importantly, to thereafter monitor its successful

22 implementation.

23 So even if Oric had taken a step towards setting up an

24 appropriate system by removing Halilovic, that wasn't the end of the

25 matter. He had to monitor its implementation and make sure that it was

Page 116

1 working in practice, and that's what he failed to do during the second

2 period. Your Honours, I point you, in particular, to the Blaskic appeal

3 judgement at paragraph 627.

4 There the Appeals Chamber noted in respect of mistreatment of

5 detainees that Blaskic was responsible -- ultimately responsible for,

6 that there was some action on Blaskic's part to protect the detainees.

7 On at least two occasions, he had responded to allegations of

8 mistreatment of prisoners, and there was also an instance of him

9 exercising military discipline over HVO personnel for misconduct and the

10 commission of crimes.

11 The Appeals Chamber, nevertheless, concluded that, I quote:

12 "Aside from these examples, there is insufficient evidence to suggest

13 that the appellant initiated a systematic effective process for punishing

14 perpetrators of detention-related crimes in the area of his command over

15 whom he exercised effective control."

16 So we submit that, at best, what Oric did in respect of the

17 first-period crimes was a partial inadequate solution and there was no

18 follow-up or monitoring, and it was right for the Trial Chamber to find

19 that he had not sufficiently discharged his obligations.

20 Your Honours, I'll hand over to Mr. Rogers for a few moments.

21 MR. ROGERS: Your Honours, I suspect that I've only got a couple

22 of minutes, so I'll just, if I may --

23 JUDGE SCHOMBURG: To be precise, six minutes.

24 MR. ROGERS: I'm grateful. It's longer than I thought.

25 Your Honours, I'm sure Mr. Jones and I will be clashing swords

Page 117

1 over the course of the next day or so on the evidence, and the first

2 salvo has already been fired in relation to that. But so far as

3 Mr. Jones seeks to rely on the documents and the authenticity of

4 documents and challenges in that regard, I remind the Appeals Chamber,

5 respectfully, of the standard of review that he has to meet in relation

6 to that. He has to show that the Trial Chamber, where he challenges it,

7 had taken a course of action that no reasonable Trial Chamber could have

8 taken in relation to that; otherwise, we will be converting this Tribunal

9 into a trial de novo, which of course is not our function.

10 All of the challenges that Mr. Jones raises, skillfully and ably,

11 on behalf of his client are matters that he raised before the

12 Trial Chamber largely and has raised, of course, again in his brief.

13 Most if not all of them have been adjudicated. The Trial Chamber devoted

14 no less than, I think, 23 pages of its judgement in section 2 to dealing

15 with these -- precisely these challenges. My learned friend knows that

16 they picked their way very carefully through what was an enormous

17 minefield to reach the decisions that they did.

18 I appreciate that cuts both ways; but, nevertheless, where my

19 learned friend seeks to raise those challenges, then that should be

20 placed on the record.

21 Your Honours, just a few small points, if I may. Some of these I

22 would have dealt with tomorrow in any event, but just if I may take one

23 example, P109, where my learned friend complains about the Prosecution's

24 reliance on this particular document and says that it is a report of

25 staff formations and then relies upon a witness, Sacirovic, to attest to

Page 118

1 that. That witness was not present at the meetings at which this

2 decision was made. He'd never seen the document before proofing, if he

3 had seen it before the trial, and was simply asked did he think that it

4 looked like a report on formations, to which the witness agreed: Yes.

5 Well, Your Honours, respectfully, that has simply no evidential

6 value at all. He wasn't present at the meeting and was simply offering

7 his own unexpert, uninformed opinion as to what he thought the document

8 meant. To seek to now rely upon that is some form of substantive

9 evidence to establish the true nature of that document is, in our

10 submission, false; and that is but one of many examples where that type

11 of quote or comment has been made during the course of the trial

12 proceedings, where witnesses, the Defence say, "We showed all the

13 documents to the witnesses." Yes, but most of them had no idea what they

14 were. So when they gave about it, it was as uninformed as anybody else

15 as you or I, except of course for the Trial Chamber who had to make the

16 determinations in due course, and they did and they picked their way

17 carefully through it.

18 Your Honours, I haven't got time to deal with any more points,

19 but if I may just use that time to illustrate the comments I wish to

20 make. Thank you.

21 JUDGE SCHOMBURG: Thank you.

22 For technical reasons, we have to make a break now that tapes can

23 be removed, and we will continue at 20 minutes past 3.00 sharp.

24 --- Recess taken at 3.01 p.m.

25 --- On resuming at 3.21 p.m.

Page 119

1 JUDGE SCHOMBURG: Now we are again in the previous time-frame,

2 and I give the floor to the Defence to present its case.

3 MR. JONES: Thank you, Your Honour, and I'm sorry that you're

4 hearing from me again, rather than the docent tones of my lead counsel.

5 JUDGE SCHOMBURG: You will not be surprised if I tell you that we

6 all would appreciate if you really could slow down a little bit; or if

7 you speak that fast, make a break after each sentence.

8 MR. JONES: Certainly.


10 MR. JONES: I'll go very slowly.

11 Well, first, in relation to our appeal, obviously a lot of the

12 matters have been covered, so I'm not going to go in strict order

13 according to our appeals brief. The first thing I want to deal with is

14 our argument that the -- or rather, I want to demonstrate how the

15 Prosecution's new argument that the guards were Oric's subordinates, even

16 if they weren't members of the military police, was not pleaded. I said

17 that this morning as an assertion, but I want to demonstrate that.

18 The starting point in many ways is paragraph 131 of the

19 Prosecution's response brief where they say: "The Trial Chamber

20 concluded that the guards were not members of the SMP but did not

21 consider whether the guards were nevertheless under Oric's effective

22 control."

23 We say that's right, the Trial Chamber did not consider it

24 because that was never the Prosecution's case and it was not a trial

25 issue. Their issue was only that the guards were Oric's subordinates by

Page 120

1 virtue of being military police personnel or in any event military

2 personnel.

3 Now, if we turn to the indictment, paragraph 15, the material

4 allegation is as follows: "At all times, relevant to the charges in this

5 indictment by virtue of his position and authority as commander, Naser

6 Oric commanded all units that were operating within his area of

7 responsibility."

8 I should just ask the Defence screen to be switched on if it

9 isn't, so that this should actually appear.

10 It goes on: "This includes," and it refers to the units involved

11 in the combat activities, "and all units in the military police involved

12 in the detention and custody of Serb individuals in Srebrenica."

13 Now, their case was that Oric was commander of military units

14 involved in detaining Serbs, and the only unit they mentioned was the MP

15 in the indictment. They could easily have said: "Naser Oric had

16 effective control over the guards at the prison and the building," but

17 they didn't say that.

18 As to what "involved" means in this paragraph, it's excessively

19 vague, in our submission, and we complained of that in our motion of the

20 22nd of May, 2003. I'll quote from that, paragraph 16: "The indictment

21 contains excessively vague terms which should not appear in the

22 indictment, as they fail to give the Defence adequate notice of the

23 Prosecution case.

24 "In particular, 'units involved in the detention,' the word

25 'involved' is extremely vague. For criminal responsibility to arise

Page 121

1 inter alia, the accused's subordinates must have committed crimes not

2 merely have been peripherally involved in an activity in which other

3 individuals or units not subordinate to the accused committed crimes."

4 So we were raising this issue in the prejudice that we would

5 suffer way back in May 2003. Being involved in detention includes the

6 cooks who brought food to the prison, but they were just civilian women.

7 I'm sure the Prosecution doesn't submit that they were under Oric's

8 effective control.

9 So, then, we turn to the pre-trial brief, which is of course much

10 more detailed, the Prosecution pre-trial brief, where the Prosecution are

11 absolutely meant to set out their case. What did they say there?

12 Paragraph 54: " ... the evidence will show that between 24 September

13 1992 and 20 March 1993, the Bosnian Muslim Police detained Serb males who

14 were hors de combat at the Srebrenica police station and the building

15 behind the Srebrenica municipal building."

16 There's no mention of guards there as being subordinates to Oric.

17 Paragraph 56 of the pre-trial brief, they refer to guards but to

18 ABiH guards. As I'm sure you're aware, the ABiH is the Army of Bosnia

19 and Herzegovina. So the Prosecution's case in the indictment and the

20 pre-trial brief, as we see very clearly from that, is that the guards

21 were military personnel, either soldiers in the ABiH or members of the

22 military police or guards of the army of Bosnia and Herzegovina. That

23 was the case that we had notice of, and that's the case we defended

24 against and it was absolutely not proved at trial. So all the questions

25 of detainees were to do with what the guards wore. Were they in military

Page 122

1 uniform or civilian uniform? As everyone knew, that was the key issue.

2 The Prosecution back then, before the trial, had the idea that

3 Oric was a supreme commander. He was described as sort of like a god in

4 Srebrenica; and, hence, they believed that he was in charge of all ABiH

5 units and, hence, their theory that any ABiH guards or MP guards would be

6 under his Supreme Command. But the Chamber didn't find that, and I

7 referred earlier to paragraph 162, where they only found that he had

8 effective control over 20 to 30 fighters in Potocari.

9 Then we see paragraph 63 of the pre-trial brief: " ... while

10 detained, the Serb men were at the mercy of the military police guards

11 and other persons ..."

12 So the Prosecution's case, as I say clearly, is that guards were

13 members of the ABiH or the military police, and certainly not that they

14 were civilians. They were saying that the guards were incorporated into

15 some sort of military units, and those military units were subordinated

16 to Oric. So, as I say, that's what the trial questions were about.

17 Now it's this -- it is a new theory, and we've only seen it for

18 the first time in the written submissions, which is this hypothesizing

19 about, well, would a commander put his prisoners, as they refer to

20 detainees, would he put his prisoners in the charge of the units of which

21 he had no effective control. I gave this morning the FBI example, if you

22 like, of how you can't have one force detaining and another force being

23 the guards.

24 But notice, too, how self-defeating that argument is. The

25 Prosecution say these were valuable prisoners, valuable for information

Page 123

1 and for exchange for dead Muslims; but, then, the fact is they were

2 killed, those prisoners. So doesn't that actually show the very lack of

3 effective control that they're arguing. Here are valuable prisoners who

4 Oric wants alive and they get killed. So that argument, aside from being

5 entirely hypothetical, is also self-defeating.

6 But our main point really under this heading is that we're having

7 to defend against the theory of the case which has been raised one week

8 before the appeal hearings, in our submission, in no fair system would

9 that be permissible.

10 Now, I turn to ground 2, as I said, which is so far dealing with

11 the grounds sequentially. Our ground 2 complains of the Trial Chamber's

12 failure to make proper findings, and we refer to that in a number of

13 contexts. One is in relation to the very important issue of

14 identification and the failure to properly follow Kupreskic guide-lines

15 incorporating Turnbull, and the importance of being very careful about

16 identification evidence. You've seen the -- one of many examples:

17 Radic, who said that Naser Oric had blue eyes, was 160 centimetres tall,

18 was clean-shaven, and was 30 years old; and Oric, in fact, has brown

19 eyes, was 180 centimetres tall, had a beard, and was 25 years old at the

20 time.

21 So, in every single respect, that identification was mistaken.

22 But that didn't seem to trouble the Chamber, and they didn't make a clear

23 finding. If they had made a clear finding, it would interfere with the

24 finding they went on to make, which is that, in any event, it appears

25 that Sarac knew Oric before the war and, therefore, he identified him.

Page 124

1 But doesn't that raise the very question: If the identification

2 is so wrong, then that raises the question about Sarac's identification.

3 You will recall Sarac wasn't a witness, and Radic cast doubt in his

4 testimony about just how reliable Sarac was generally. That's at T3599,

5 for the record.

6 But the failure to make proper findings is particularly acute and

7 prejudicial on the key matter we discussed this morning, whether there

8 was civilian control over the prisons. So I want to dwell a little bit

9 on Suhra Djilovic, Sacirovic, and Smajlovic.

10 If I can start by rhetorically asking the question: What is the

11 point of us bringing witnesses who were ideally placed to know how things

12 in the War Presidency - I will explain in a minute why they were ideally

13 placed - who give evidence which is not impeached when they give that

14 evidence.

15 Djilovic testified very clearly about the War Presidency's

16 control of the prison. She testified how Nurija Jusufovic took blankets

17 to the detainees. She referred also of the reports of Bogilovic and

18 others being brought to the president. Now, she could only be wrong if

19 she was lying. There's no halfway house that she was mistaken about

20 those things. So it was never put to her that she was lying about this

21 and a reason for thinking that a perfectly respectable middle-aged woman

22 with no axe to grind would be lying. We bring her and we bring

23 Sacirovic.

24 Sacirovic worked directly under the War Presidency in a

25 commission for finding out about war crimes, and his remit was on both

Page 125

1 Serb -- crimes by Serbs and crimes by Muslims. He gave very detailed

2 evidence on that.

3 Smajlovic who was actually present at this meeting of 1st of

4 July, and he threw doubt on P109. So we do have witnesses who were

5 actually there at meetings impugning these exhibits.

6 What's the point if we call these witnesses, they give truthful

7 testimony, they're not impeached, and then the Trial Chamber just simply

8 ignores their evidence. It is incumbent on the Trial Chamber to make

9 fair findings; and if they found Djilovic was not believed, then they had

10 a duty to explain why she was not believed and they would have had a very

11 hard time of it.

12 So how did they actually deal with Suhra Djilovic? Well, if you

13 see footnote 1403: "The Trial Chamber is not persuaded by evidence that

14 the Srebrenica War Presidency appointed Atif Krdzic rather than the

15 Srebrenica armed forces ..."

16 Then they say "but see Suhra Djilovic," "but see Suhra Djilovic."

17 We wonder what's a phrase like that doing in a judgement? This isn't a

18 doctoral dissertation where the author indicates that he or she is aware

19 of contrary authority or opinion. This is a judgement where that had to

20 be decided. Yes, "but see Suhra Djilovic," and what about it.

21 So that's so important so the parties know where they stand so

22 they can appeal properly on the basis of clear findings, and this is just

23 a loose end. It's right to say "but see Suhra Djilovic" because her

24 evidence was that Krdzic was appointed by the War Presidency. In my

25 submission, the Chamber has identified the importance of her. So this is

Page 126

1 evidence that Krdzic was answerable to the War Presidency and not to

2 Oric. Moreover, it's what Oric said in his interview and it's what

3 Meholjic, a Prosecution witness, Meholjic, Sacirovic, and Smajlovic said.

4 Incredibly, you'll find the same thing again at footnote 505,

5 again: "But see Suhra Djilovic and Mustafa Sacirovic and Oric's

6 interview." So three pieces of evidence all saying the same thing and to

7 coin a phrase of Oscar Wilde: "To fail to make a proper finding once may

8 be regard as a misfortune; but to fail to make a finding twice looks like

9 carelessness." It is this sort of carelessness which is deeply

10 prejudicial to our client.

11 As I said before, the Trial Chamber really just used the

12 interview when it suited them, if you like, to show Oric's knowledge that

13 Halilovic killed a prisoner and to show that, allegedly, he didn't take

14 measures to prevent further occurrences because he was preoccupied, but

15 ignores it when Oric said Krdzic was appointed by the War Presidency. So

16 it's picking the plum and leaving the duff. Just extracting the

17 exculpatory parts -- sorry, incriminatory parts but leaving the

18 exculpatory. We would have preferred the other approach which would any

19 way better accord with the presumption of innocence.

20 The Prosecution say that this sort of thing is covered by the

21 Kvocka presumption, a presumption that Trial Chambers have done their job

22 properly, even if there are matters of evidence which are not dealt with;

23 but I'm sure you'll agree that there's no presumption in the world which

24 protects the Trial Chamber from clear failure, a failure to make proper

25 findings, and that would be a rubber stamp rather than a presumption.

Page 127

1 I think I've adequately explained Djilovic's and Sacirovic's and

2 Smajlovic's roles. If not it's in our Defence appeals brief and closing

3 brief, and you'll see why we say they were ideally positioned to know

4 what was going on in the War Presidency and they were in the building

5 seeing people presenting reports. What better physical immediate

6 evidence can you have of command responsibility? When I say "the

7 building," I mean the War Presidency building, not the detention

8 building.

9 So now we turn to another matter which we say was not pleaded in

10 the indictment. So this is a separate issue. It's our ground 6, and we

11 say that liability for guards aiding and abetting subordinates -- sorry,

12 liability for subordinates aiding and abetting others was not pleaded,

13 much less proved beyond a reasonable doubt.

14 Again, the Trial Chamber arguably found Oric guilty on that

15 basis. The judgement is not clear on what basis he was convicted, but

16 that in itself, we say, is a problem. But there's no mention any where

17 in the indictment of aiding and abetting, murder, and cruel treatment.

18 Aiding and abetting is specifically mentioned in relation to the

19 wanton destruction and plunder charges because those charges were brought

20 under Article 7(1), and it was being said that Oric aided and abetted

21 those crimes, but that was thrown out by the Trial Chamber. But that was

22 never said for murder and cruel treatment, which precisely shows the

23 Prosecution didn't have aiding and abetting in mind at all for the

24 showing -- for proving murder and cruel treatment, responsibility for

25 murder and cruel treatment.

Page 128

1 Now, if we look at the pre-trial brief again in this relation, it

2 made it clear that the Prosecution alleged that it was subordinates of

3 the accused, themselves, who physically murdered and cruelly treated

4 detainees; in fact, that it was the guards as MP members physically

5 perpetrating the crime.

6 So we see, at paragraph 51 of the pre-trial brief, the

7 Prosecution set out the elements that they would have to prove for

8 murder; and the elements are set out A, B, and C.

9 So if we look at C, that's the mens rea: "The accused or

10 subordinates of the accused must have intended to kill or inflict serious

11 injury in reckless disregard of human life."

12 Now, that's the mens rea of a physical perpetrator, and the

13 person who was actually performing actus reus. The mens rea for aiding

14 and abetting is quite different. The Prosecution know it's different,

15 and we know that they know it's different, because in paragraph 97 of the

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

17 abetting because they were going to use that for wanton destruction

18 charges.

19 Could we have paragraph 97. It may be that it's not on the

20 screen. I'll read it.

21 "The mens rea of aiding and abetting is satisfied if the accused

22 knew that his or her conduct would materially assist, encourage, or

23 support the commission of a crime."

24 So it's very clear the pre-trial brief only mentions the mens rea

25 of a physical perpetrator in relation to murder; and if they had fought

Page 129

1 at all at all that stage and were going to put us on notice at that

2 stage, that they were going to be using aiding and abetting in any way

3 for the detention charges, then they would have set out the mens rea for

4 aiding and abetting in paragraph 51 of the pre-trial brief, a section

5 dealing with murder charges. They didn't because their case was that

6 Oric's subordinates killed, physically killed, and cruelly treated the

7 victims.

8 Now, if you look at paragraph 154 of the pre-trial brief: "Naser

9 Oric also failed to issue orders to prevent his subordinates from

10 murdering or cruelly treating Serbian detainees held in the two

11 locations."

12 So, again, it's clear there that the Prosecution's case is that

13 Oric's subordinates murdered and cruelly treated, not that they aided and

14 abetted others to do so. These subordinates, as we saw earlier, we know

15 from paragraphs 56 and 63 of the pre-trial brief were alleged to be

16 military personnel, members of the military police or ABiH.

17 So we say it was greatly unfair for the Trial Chamber to convict

18 Oric on the basis of a case against which we never defended, and we

19 raised this in our closing arguments and made the point in our submission

20 very clearly. In fact, the first time really that we saw even an

21 argument based on aiding and abetting was in the Prosecution's response

22 to our closing brief. So it was almost as an afterthought that this

23 notion appeared. Further proof that it is unfair on an indictment such

24 as ours to convict on an aiding and abetting by a subordinate basis comes

25 from Boskoski, because in that case the indictment was similar to our

Page 130

1 indictment. The Trial Chamber held that it needed to be specifically

2 amended to alleged that subordinates aided and abetted, and it was the

3 same Trial Chamber -- well, certainly it was Judge Eser.

4 So they knew that, in fact, an indictment such as ours was not

5 inadequate to give notice of a case based on aiding and abetting by

6 subordinates, and yet they convicted Oric of it nonetheless.

7 Just a couple of further points on that. The Prosecution say

8 that we did have notice of that case because we said that we relied on

9 Blagojevic trial judgement; but, as we said in our reply I think it was,

10 we rely on the indictment and pre-trial brief for notice of the case we

11 have to meet, where alongside of that separately we're aware of what the

12 case law of the Tribunal says. So certainly we were satisfied that

13 Blagojevic meant that the case in which Oric was convicted was not

14 possible legally, so we thought at the time. But that doesn't mean that

15 we had notice that such case was going to be brought. So it's completely

16 separate issue, applicable law and the notice in the indictment.

17 The Prosecution may say, Well, the indictment refers to the

18 support of guards, and that's enough to put us on notice; but as we know,

19 and as was made clear in the Blagojevic appeals judgement, you can have

20 support which is not aiding and abetting. You know, you have support

21 which falls way below rendering substantial assistance. So in the

22 Blagojevic appeals judgement, on which I believe three or four members of

23 this Bench sat, I don't need to tell you, but it was held that the

24 members of or subordinates of Blagojevic, of the Bratunac Brigade I think

25 it was, assisted the principal perpetrators that didn't rise to the level

Page 131

1 of substantial assistance of aiding and abetting. So "support", that

2 word, is not enough to give notice of a case based on aiding and

3 abetting; it's just a factual description.

4 Now, these two issues which we've looked at from the point of

5 view of pleading, aiding and abetting by subordinates and then aiding and

6 abetting by pure omission, both also arise in relation to the principle

7 of legality. So we've got two-fold submissions --

8 THE INTERPRETER: Thank you for slowing down.

9 MR. JONES: -- that it wasn't pleaded in either case; and, beyond

10 that, that in fact those are not crimes at the time of their commission,

11 alleged commission.

12 The Tribunal has repeatedly said that legality is a norm of jus

13 cogens. But in this case, it was a custom more in the breach than in the

14 observance. We argue that the Trial Chamber was wrong to hold that

15 aiding and abetting subordinates was unquestionably a part of customary

16 IHL in 1992. The response to that would be Blagojevic appeals judgement

17 that that matter has been decided, and that therefore we would need to

18 show cogent reasons to depart from that.

19 In our submission, that ruling or that holding in Blagojevic was

20 obiter, first of all; because, in fact, the Appeals Chamber didn't need

21 to decide it, because in any event, the Appeals Chamber found that the

22 Trial Chamber had not erred in considering that Blagojevic's subordinates

23 had not aided and abetted crimes by the Bratunac Brigade. That's

24 paragraph 284.

25 So, in other words, the Appeals Chamber could equally have said,

Page 132

1 We're not going to decide the issue whether or not aiding and abetting by

2 subordinates is not criminal. We don't need to, because even if it were,

3 in this case, the assistance was not aiding and abetting. I trust that

4 point is clear. So we argue that it's obiter. If not, in any event --

5 in fact, to put in more simply, it's obiter because that ground of appeal

6 by the Prosecution was dismissed.

7 In the Aleksovski appeals judgement, the Chamber is clear that

8 what is followed in previous decisions is the legal principle, the ratio

9 decidendi, and that's paragraph 110. Not said something obiter dictum,

10 and of course that's fundamental to the whole concept of stari decisis.

11 But even aside from that, the point was not fully argued in Blagojevic.

12 The Defence had, I think, one sentence in their brief that touched on the

13 issue, and the Prosecution, for their part, just referred to the Oric

14 trial judgement; so, in that sense, it's question begging. In the

15 Boskoski decision, it was not decided on its merits, and we say it's

16 unfortunate or it would be unfortunate for the matter to be decided

17 simply by reference to what was held in Blagojevic because here it

18 actually matters. Here it's not an obiter dictum. It matters to the

19 outcome of this case, and we fully argued the point. And in Boskoski,

20 the Defence fully argued the point.

21 So for those arguments to be demolished in a side wind, we say,

22 would be wrong.

23 But in any event, even if we're wrong about all of that,

24 Blagojevic certainly didn't decide the issue raised by the Prosecution of

25 whether a superior --

Page 133

1 THE INTERPRETER: Would the counsel please slow down for

2 interpretation.

3 MR. JONES: -- Oric in this case, can be held -- my apologies.

4 The interpreters suggested that electrodes should be attached to

5 my feet to zap me every time I go too fast.

6 It didn't decide the issue raised by the Prosecution of whether a

7 superior can be held responsible for a subordinate aiding and abetting by

8 pure omission, i.e., when he was not even at the scene, and that has

9 never been decided before.

10 So, legality, in that regard, aiding and abetting by omission

11 does not appear anywhere in the Statute or anywhere in Additional

12 Protocol I. So the Prosecution has to argue that it's part of uncodified

13 customary law; and as set out in His Honour Judge Meron's article on this

14 subject, they would have to show that by clear and well-established

15 methods of identifying customary law, a reference to precedent treaties

16 and that sort of thing. The way in the early decisions in the Tadic

17 decision, for example, state practice and opinio juris was identified.

18 It's not enough just to say, well, this would fill a lacuna; this

19 would be a useful string to the Tribunal's bow. They have to show that

20 this in 1992 was clearly part of customary law.

21 So we wonder, hypothetically, if the Prosecution travelled in a

22 time machine to 1992 and said to Mr. Oric that he could be found

23 responsible if his subordinates aided and abetted by omission and he

24 would quite reasonably respond, Well, can you show me where that's

25 written, and they would have nothing to show him.

Page 134

1 The Mrksic trial judgement obviously couldn't be used because

2 that didn't exist in 1992; and in any event, in Mrksic, it's paragraph

3 553, where it's stated that liability for aiding and abetting by omission

4 might arise regardless of presence of the accused. It noted that no

5 convictions were entered on that basis, so the Brdjanin appeals judgement

6 remains the determinative judgement on that issue.

7 I was going to make some general comments about legality, Jeremy

8 Bentham, as we may all know, in 1823 was entrenchoned [phoen] about the

9 injustice of punishing someone for something which was not clearly

10 criminal at the time. His remarks were cited in a leading case in my own

11 jurisdiction from the House of Lords, but where it was said the domestic

12 law of England and Wales has set its face firmly against what Bentham

13 called "dog law." What Bentham meant by that is a law which only

14 punishes someone after they've committed the act and when you had no

15 notice beforehand is like beating a dog in order teach it that it's

16 broken the law. That's not what the law should be about. It should be

17 clear on notice beforehand that their acts are criminal and not simply

18 beaten for it afterwards.

19 And, increasingly, academic commentators are criticizing the lack

20 of respect sometimes shown for the principle of legality. Professor

21 Greenwood, for example, we cited in our brief was scathing about a

22 purpose of approach to interpreting the Statute in IHL. He said: "It's

23 one thing to look to a treaty provision regarded as codificatory as an

24 aid to establishing the content of --

25 THE INTERPRETER: Thank you for slowing down.

Page 135

1 MR. JONES: -- customary international law, but entirely

2 different matter to take a purposeful approach to the interpretation of

3 the treaty, especially one based on broad notions that the treaty was

4 designed to enhance protection of the individual. To use that to give

5 the treat..." --

6 JUDGE SCHOMBURG: Mr. Jones, may I seriously ask you to follow

7 down; otherwise, we can't follow the proceedings.

8 MR. JONES: My apologies. I didn't realize.

9 In fact, as far as Professor Greenwood's remarks are concerned,

10 they're in our appeals brief, so I won't go into it.

11 But what we say is that that criticism of a purposeful approach

12 is completely applicable to what our Trial Chamber did, because our

13 Trial Chamber just said in the loosest, vaguest way that IHL is about

14 protecting people and from that principle, we say, created a new offence.

15 And we would also ask the Appeals Chamber to seriously bear in

16 mind fundamental principles of interpretation, Statutory interpretation,

17 which the Trial Chamber ignored in dubio pro reo, one, the strict

18 interpretation of criminal statutes, and above all the fact that the

19 Security Council can't make law and the Statute is not legislation and

20 it's certainly not retrosp ective legislation.

21 So we see sometimes a reference to what the frames of the Statute

22 intended, but this is not the exercise carried out by, let's say, the US

23 Supreme Court trying to work out what was in the mind of Thomas

24 Jefferson. The Statute isn't law, the Security Council couldn't

25 legislate, and the framers as we know were international civil servants

Page 136

1 working in the office of legal affairs trying to put together a Statute

2 in a brief period of time which reflected international law.

3 So there had been a lot of emphasis on what does "committed" mean

4 in Article 7(3)? Can it include aiding and abetting? But textual

5 interpretation is inappropriate here, because if it wasn't permissible in

6 1992 to punish someone when his subordinates aided and abetted, then it

7 doesn't matter what the Statute says. The Statute could be more generous

8 to an accused, but it can't be less generous. That's clear from

9 Hadzihasanovic as well, the interlocutory appeal decision at

10 paragraph 44, that the Statute can't be used to establish the scope of

11 command responsibility at the time of the alleged conduct.

12 So that's our ground 6.

13 So now I move on to ground 1F, and that concerns the error which

14 we say the Trial Chamber committed in finding that Oric had actual and

15 imputed knowledge that the crimes were about to be committed. Our first

16 point is that there is an error of law, in this sense, that is about to

17 commit in Article 7(3), and that must mean something. It must convey a

18 certain amount of imminence, and it can't cover crimes committed three

19 months later in a different place, at a different time, by different

20 people, and it can't cover a situation where the notice comes from a

21 non-subordinate's acts.

22 Now, you say and I was just saying how the Statute can't be used

23 for interpretation. It can't be used to make command responsibility less

24 generous to an accused, but it can give more, and that's, I think, clear.

25 So, we say, "about to commit" in 7(3) must require some imminence. It's

Page 137

1 the same language in ICC Article 28(i), "about to commit." So it's not

2 just accident that those words are there.

3 This error, we say, coincides with what has been described as the

4 "once on notice, always on notice" fallacy, which we say can't be right

5 as a matter of law.

6 In terms of what was relied on by the Trial Chamber for

7 establishing knowledge, there's obviously the Halilovic incident, and I

8 referred to that part of the interview which we say should be read

9 carefully to see what that notice consisted of. But also in Oric's

10 interview, it said he referred to two visits to the prison, and,

11 therefore, it's said that he would have seen progressive deterioration in

12 the condition of the detainees. This is the SUP prison, the first

13 building.

14 But in his first interview, and this is where careful reading is

15 important, he referred to visiting a person called Rade Funkcija. I

16 think there's no dispute that's outside the scope of this indictment, as

17 that person is not mentioned in the indictment. Then Rade Sarac who may

18 or may not be Veselin Sarac. So to the extent that his interview is

19 relied on, it would only indicate one visit during the indictment period

20 and, therefore, not enough to see a progressive deterioration, which by

21 definition would require more than one visit.

22 So Your Honour Judge Schomburg mentioned earlier the

23 pre-detention injuries. There's a lot of evidence at trial that people

24 were, very unfortunately, beaten up, mistreated, before they were even

25 brought to the prison. So there's very large question as to whether seen

Page 138

1 injuries would trigger notice that their crimes had been sustained in

2 prison.

3 I'm not sure if Your Honour Judge Meron had a question. No. My

4 apologies.

5 The Chamber also relied upon Zigic's and Radic's accounts of

6 Oric's visit to the prison, and this ties into our complaint to make of

7 failure to make proper findings. As we pointed out, there's a complete

8 mismatch of the visits described by Zigic and Radic. Zigic indeed

9 claimed in his conversations with Oric, they discussed the marriage of

10 popular folk singer Ceca and Arkan, which happened years later.

11 So that's why we say you're aware of the standard of review that

12 this is not a trial de novo, but it is our contention that no reasonable

13 Trial Chamber would have reached the findings it did and that's why we

14 reviewed the evidence.

15 And just, finally, on that, I referred, this morning, to the fact

16 that Radic said there were no visible injuries on their faces.

17 Importantly, too, Radic said that he didn't tell Oric, if that's who he

18 saw, that they had been beaten. On the contrary, he said that they had

19 not been beaten, and that's T3610. I've dealt with the suggestion that

20 that video, P98, showed what Oric would have seen. I dealt with that

21 this morning. He wouldn't have seen it. Those injuries were sustained

22 after he would have seen them and they were cleaned up before those

23 injuries, meaning that those injuries were sustained on the day of

24 exchange.

25 So, in our submission, that's why the Trial Chamber arguably left

Page 139

1 open the possibility that the only notice that Oric had of mistreatment

2 was the death of Kukic, and that's footnote 1500, where they say for the

3 sake of argument maybe that's all he knew about.

4 And in terms of Kukic and the detainee killed by Halilovic, or we

5 shouldn't even say killed by Halilovic, suspected murdered by Halilovic,

6 the Prosecution now say, Well, it's not clear that these are the same

7 people, as if there might be two, two killings. It's our submission that

8 actually this presents a major difficulty for the Trial Chamber and for

9 the Prosecution, that actually the killing in the SUP of Kukic was

10 actually by Kemo. That's what the Trial Chamber found, and they found

11 that Kemo was not a subordinate of Oric. So it may be that, in any

12 event, Oric was operating on a mistake of fact in thinking that Halilovic

13 had killed Kukic. I mean, that whole aspect is and was still unclear.

14 And as for Kukic, it was said that Oric was informed that he had

15 had a heart attack, and Oric said, "Why didn't you tell me, we would have

16 sent for a doctor." And the fact is heart attacks do take place in

17 peacetime, particularly in stressful conditions of war. And, certainly,

18 if twice you were told that a detainee had died from a heart attack, that

19 would be grounds for suspicion; but just once being told that, really is

20 not in itself enough to give rise to notice of mistreatment. It does

21 happen and Kukic was comparatively elderly.

22 And then, finally, on that subject, I've referred to Hogic saying

23 that as a matter of law at the time by reporting Halilovic, Oric did all

24 that a superior could do. That's T8199 to 8202.

25 Now, I move to ground 14 which is that the Chamber erred in law

Page 140

1 and, in fact, in finding that Oric failed to prevent murder and cruel

2 treatment. This ground is characterized by the leitmotif I mentioned

3 this morning, strict liability and/or presumption of guilt. The Chamber

4 basically shifted the burden of proof onto us, for proving that it would

5 have been impossible for Oric to commit crimes.

6 It's paragraph 568: "The Trial Chamber simply does not see how

7 it could have been impossible for the guards and/or commander of the

8 Srebrenica military police to prevent crimes such as murder."

9 Paragraph 570: "The conclusion that the Trial Chamber arrives at

10 is that it was not impossibility that stood in the way of the accused in

11 preventing the maltreatment of prisoners."

12 Paragraph 771: "Nor was he constrained by impossibility," as if

13 we had a burden of proving that it was impossible for Oric to prevent

14 crimes. How can that possibly be consistent with the burden of proof in

15 a criminal trial?

16 That's three times that they mention possibility, and so they

17 clearly directed themselves as a matter of law that that was the legal

18 test; and possibly from confusing the dictum, a commander is not expected

19 to do the impossible. And so from that, you reach the conclusion that

20 only if it was impossible would a commander not be guilty and that's

21 clearly wrong.

22 Rather, it was for the Prosecution to prove that there were

23 necessary and reasonable measures that Oric could have taken and that he

24 failed to take; and in this regard, we draw attention to a very important

25 distinction which is between capacity to take measures and failure to

Page 141

1 take those measures. This arises in relation to both Oric and Krdzic,

2 the suggestion that they didn't take measures. The Prosecution are quite

3 big on measures -- capacity to take measures, but they have very

4 little -- very little evidence, indeed no evidence, failing to take those

5 measures. And there wasn't a single witness what actually said, Ah, Oric

6 would have done this and he didn't, or Krdzic could have done this and he

7 didn't.

8 And, in fact, as the Chamber itself found, the Prosecution didn't

9 suggest at trial what the measures were. It's paragraph 561, measures to

10 prevent crimes, it says.

11 "While the Prosecution alleges that the accused failed to prevent

12 and punish the murder and cruel treatment of the Serb detainees, it is

13 not specifically submitted which measures he could have taken to prevent

14 these crimes."

15 So, again, that's a very important issue of having notice of the

16 case you have to meet. What measures should he have taken and didn't

17 take, and what was the evidence of that? And, again, it's based really

18 on circular reasoning. He must have failed to prevent the murders

19 because they occurred. So we say that it's an error of the Trial Chamber

20 because it should have at least considered that the Prosecution's failure

21 to call one live witness at least, and there's no requirement of

22 corroboration of the Tribunal; but on my reading of the Rules, there's at

23 least a requirement to bring evidence and not just engage in theorizing.

24 One live witness who was in Srebrenica at the time and knew of

25 the situation to say that Oric had measures he could have taken and that

Page 142

1 he didn't take and that they didn't do it. They just rely on P84 and

2 Oric's interview, and we've said enough about those two items of

3 evidence.

4 And P84 is far from comprehensive, and in any event it's highly

5 unlikely that orders relating to prisoners and their treatment, orders

6 would have appeared in minutes of meetings; it's the wrong form

7 altogether. In the interview, when Oric says about his other priorities,

8 he's quite reasonably saying that his priority was to stop the lines

9 falling and the Serbs overrunning Srebrenica, and we know what happened

10 in 1995. His concern was that thousands of people would be killed if the

11 lines fell.

12 And so was it unreasonable for Oric to have priorities to say, as

13 he said, that he was trying to avert a catastrophe. And the fact that he

14 said it was a priority doesn't mean that he did absolutely nothing to

15 prevent crimes against detainees, and the Trial Chamber was wrong to

16 interpret that evidence in that light and wrong to say that because no

17 measures in P84, no mention, that is, of measures, therefore none were

18 taken.

19 And, again, we see a classic catch-22, which is that if Oric had

20 actually discussed measures and issued orders, it would only be taken to

21 prove how involved he was in detention. It wouldn't, in our submission,

22 have ever been enough for him to be acquitted, according to the

23 Trial Chamber's approach.

24 And, in that regard, we turn to non-disclosure breaches -- sorry,

25 disclosure breaches. It's ground 15, and I wonder if we could just go

Page 143

1 into closed session for one moment over an abundance of caution.

2 JUDGE SCHOMBURG: Closed session, please.

3 [Private session]

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Page 144 redacted. Private session.















Page 145

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 [Open session]

12 JUDGE SCHOMBURG: You may proceed, Mr. Jones.

13 MR. JONES: Thank you, Your Honour.

14 Just two last grounds, ground 13, the interview, we write

15 obviously, as we do in all our written submissions. Perhaps I should

16 have said that at the outset, that if I don't deal with a matter, we rely

17 nonetheless on our appeals brief.

18 For the interview, the main reason why the interview is so

19 unreliable is that the questions and his answers were constantly being

20 misinterpreted. The interpreter was not a native speaker as we outlined

21 in our motion of the 23rd of January, 2006, and it's demonstrable that

22 there was constant misinterpretation.

23 Now, the Prosecution say, Well, we didn't object to the admission

24 of the interview until much later, but the interview is incredibly

25 lengthy. It's two weeks long, and it actually comprises, believe it or

Page 146

1 not, 53 CDs. It's absolutely vast, and it was only over the course of

2 the trial. Obviously, we didn't sit down before the course of the trial

3 and go through 53 CDs which we would have liked to have done, and we

4 didn't have resources. It was only then we realised just how defective

5 the interpretation had been and how much it confused Oric and the

6 interviewers. We also have Oric saying, I'll go off and check with other

7 people coming the next day, and speaking about matters, when he should

8 have been cautioned that it was his recollection that mattered and not

9 information gathered from others outside the interview.

10 So we say it can't be fair to rely on such an interview, and so

11 substantially rely on it. And as you'll see from the judgement and from

12 the Prosecution's submissions, they rely hugely on the interview and

13 pretty much the entire interview for the whole Halilovic episode and for

14 Oric's alleged failure to take measures to prevent crimes in the second

15 period. And it used the testimony -- used the interview as witness

16 testimony despite its direction to itself that it was not going to do so,

17 and we refer to that in our appeals brief.

18 Two final points, Bogilovic and ground 8, we would like to deal

19 with, and then one brief word again on documents. Our Presiding Judge,

20 with no intervention or contrary remark from the other Judges, told

21 Bogilovic that he did not believe him "that little bit." In other words,

22 he didn't believe him at all. In other words, he thought Bogilovic was

23 lying before the Chamber.

24 "I'm not going to ask you any more questions and I hope very few

25 more questions will be asked to you because I'm not believing you that

Page 147

1 little bit, Mr. Bogilovic. There cannot be such confusion in your mind.

2 You know exactly what my question was, and you've been trying for the

3 last 15 minutes to avoid answering it. And you will not be given any

4 further opportunity to answer it now.

5 Madam Sellers, please, if you could proceed and conclude."

6 Then, when the trial judgement came out, Bogilovic was - I hope

7 I'm not facetious in saying this - but a star witness.

8 At paragraph 483: "There is convincing evidence that the ground

9 floor of the Srebrenica police station where the Serb detainees were held

10 was used by the Srebrenica military police." Well, who was that

11 "convincing evidence" given by? Only Bogilovic. See footnote 1365.

12 That's the key finding, because without the finding, the

13 Trial Chamber would never have found that the military police detained

14 prisoners. They rely on it again and again at paragraphs 185, 359, 483,

15 and 484 on this ground floor finding.

16 "More important is his," Bogilovic's, "evidence that the

17 Srebrenica police used the ground floor of the Srebrenica police

18 station."

19 They arguably relied on Bogilovic to exclude the civilian police

20 being involved in detaining prisoners, and that's paragraph 483. I say

21 arguably because it's not clear from the judgement whether they're simply

22 reciting his evidence or making a finding, and that's a problem

23 throughout the judgement. It never separates reciting evidence of

24 witnesses and actually making clear findings.

25 But this is a man who, if he didn't exclude the possibility of

Page 148

1 the civilian authorities being in charge of prisoner, was potentially

2 liable for murder and cruel treatment. You'll find many domestic

3 authorities where, for example, a cell confession is made to a witness,

4 and the witness is hoping to have his sentence reduced and gives

5 evidence. The case law establishes the jury in that case has to be

6 directed very, very carefully to be extremely cautious of relying on the

7 evidence of a witness who has an interest to serve. Bogilovic had the

8 greatest interest to serve with this evidence, and he was ridiculed by

9 the Judge for lacking credibility.

10 There is a whole host of things he said.

11 "We've spent four days speaking at a tangent, Madam Vidovic,"

12 four days so that was the whole of his evidence, and that was T6552.

13 "One moment because I hate when I get these sorts of answers.

14 The witness still hasn't answered your question which was very clear, and

15 I'm getting the impression that he was deliberately avoided answering

16 your question." That's T6485.

17 "He's trying to avoid answering your questions, Ms. Sellers, and

18 the Trial Chamber will reach its own conclusions."

19 Now, what could that mean and what could we more importantly

20 legitimately expect with a meant like that? The Chamber, speaking for

21 the whole Chamber, will reach its own conclusions. Obviously, it means

22 they're not going to rely on that witness as a witness of truth.

23 And he goes on: "One moment, Mr. Bogilovic, because I can assure

24 you, you're not the most intelligent one in the courtroom.

25 Mr. Bogilovic, don't try to avoid answering my question." That's T6512.

Page 149

1 "I can't accept that this is what you really understood from my

2 question." T6517.

3 And then, eventually, Judge Agius was simply making fun of the

4 witness. He said, "I think if we included a dentist amongst lawyers in

5 certain cases, in the case of certain witnesses, it would work better."

6 T6513.

7 THE INTERPRETER: Please slow down.

8 MR. JONES: Talking about the difficulty of extracting the truth

9 from this witness.

10 And then finally: "You were asked six answers and you gave six

11 answers to this ... I can't help you, Ms. Sellers."

12 There are even more references; we have them at 6522, 6523, 6537.

13 So how, in fairness, could we be expected to conduct our case as

14 if Bogilovic would be regarded as a key credible witness for the key

15 issues in this case? This was an evasive witness twisting and turning to

16 avoid bringing blame on himself and being told in terms that the

17 Presiding Judge thought that he was a liar. And certainly to rely on him

18 without corroboration even, it has to be wrong.

19 Now, the Colak case, as well as the Stead case and ex parte, we

20 refer to Colak, I believe, in one of our pleadings, Colak against

21 Germany, 11EHRR513 --

22 THE INTERPRETER: Would counsel please slow down.

23 MR. JONES: -- are different from this in this respect. Unlike

24 in Colak, Judge Agius's comments were made from the Bench during the

25 hearing and in the presence of all parties.

Page 150

1 Two, one of the comments expressly directed the parties to alter

2 the conduct of their case in response: "I hope very few more questions

3 will be asked of you." So he was saying, Don't bother in this witness.

4 Three, the interests of the accused that "ordinarily require the

5 defending counsel will present the case for the Defence in accordance

6 with the intimation of the Presiding Judge, that's from Colak, were

7 particularly strong in this case because of the directional nature of the

8 comments and the broader context of the limits and the pressure put on us

9 in terms of the time for our case.

10 As I say, fourthly, the other Judges were present and they didn't

11 distance themselves in any way from the Presiding Judge's comments, and

12 they are therefore presumed to acquiesce. And it would have been clear

13 to the Court, in any event, that we relied on his comments because we

14 even said it in our closing brief, paragraph 660:

15 "The Chamber gave this firm indication that it did not find the

16 witness credible. The Defence, therefore, relied on this credibility

17 indication in not seeking further to impeach his credibility through

18 other witnesses. The Defence addresses the reference of Bogilovic purely

19 for the sake of completeness, notwithstanding the clear indication

20 received from the Trial Chamber that it did not find Bogilovic credible

21 and would not, therefore, be relying on his evidence."

22 Now, the Prosecution say, Well, you can't force the

23 Trial Chamber's hand in this way. Well, at the very least, the Chamber

24 could have told us before closing submissions that we were under the

25 mistaken impression, and then we could have at least dealt with Bogilovic

Page 151

1 in our submissions.

2 So, finally, I only have one minute left perhaps on documents.

3 Yes, it was for the Trial Chamber to evaluate the exhibits before us;

4 and, yes, there is a substantial part of the judgement dealing with it.

5 But it is a part of our case that no reasonable Trial Chamber would have

6 approached the documents that way. And just to say why we say that, let

7 me just say this: 98 exhibits were challenged by us. They had no chain

8 of custody information in relation to them and they were not shown to any

9 witness, and the Trial Chamber, nonetheless, found that their

10 authenticity and probative value was proved beyond a reasonable doubt.

11 In our submission, that simply has to be wrong.

12 Thank you, unless I can assist you further.

13 JUDGE SCHOMBURG: To be clear, you have not exhausted your time,

14 but please don't regard this as an invitation to continue when you have

15 concluded your submissions.

16 MR. JONES: I think Your Honour indicated that you would

17 appreciate brevity at the outset.


19 MR. JONES: I endeavour to please.

20 JUDGE SCHOMBURG: May I ask, please, are there any further

21 questions.

22 [Appeals Chamber and legal officer confer]

23 JUDGE SCHOMBURG: To be abundantly clear on one question, I note

24 that it's difficult for the Defence to be confronted still on appeal with

25 two alternative cases; namely, that either Krdzic was the subordinate

Page 152

1 and/or the guards, we have discussed the question of guards several

2 times, that they were the responsible ones, and he should, Mr. Oric,

3 should have intervened vis-a-vis either Krdzic or the other subordinates.

4 Nevertheless, let me ask you the following question. You

5 addressed the mens rea of Krdzic, in part Halilovic, but what about the

6 mens rea of Mr. Oric? What about his knowledge or his reason to know

7 about crimes committed either by Krdzic or by other subordinates all the

8 way down the hierarchy?

9 MR. JONES: Well, for Krdzic, there's absolutely nothing and

10 there's literally no evidence anywhere that Oric was on notice that

11 Krdzic would commit crimes in any way, in any form of liability, and that

12 he was on notice that Krdzic would aid and abet by omission. There's

13 nothing in his interview where he says anything about Krdzic being

14 suspected of committing crimes like Halilovic --

15 JUDGE SCHOMBURG: Let me -- sorry to interrupt. Let me be more

16 clear. You are now addressing evidence, but evidence has to be

17 transferred and translated into findings. Would you be aware of any

18 findings to that end, that he knew or had reasons to know about the

19 criminal conduct of either Krdzic or the other subordinates?

20 MR. JONES: No, no. The evidence is that he was on notice

21 because of the Halilovic incident that a crime had occurred, and

22 therefore the Trial Chamber concluded that he was on notice that other

23 crimes might occur.

24 Perhaps if I can just say before that, in terms of the legal

25 framework, of course Oric is only charged under 7(3), so he knew or had

Page 153

1 information in his possession entitling him to conclude. So it's

2 certainly not being said Oric aided and abetted by omission. So we know

3 what the legal test is. And, really, it's, as I've outlined, he had

4 notice of a crime by Halilovic. We say that all he had notice of, and

5 that he didn't see advisable signs of mistreatment on detainees or any of

6 that. But that having dealt with that Halilovic, that he had done all he

7 could; and from that point on, he wasn't on notice that crimes would be

8 committed, that crimes were about to be committed, and that's the wording

9 of 7(3). It's not probabilistic awareness that they're arguing for now

10 by aiding and abetting by omission in the case of Oric because that has

11 to be 7(3).

12 But, really, our point on this is that the burden of proof was on

13 the Prosecution and it wasn't for us to prove absence of knowledge. I'm

14 not sure if that answers your question, Your Honour. It goes some way to

15 answering it.

16 JUDGE SCHOMBURG: Yes. Thank you, indeed, and I think it's

17 indeed not our burden to show us something to the detriment of your own

18 client, but no doubt we will hear tomorrow the submissions by the

19 Prosecution on this crucial point, and we want to invite already today

20 the Prosecution to point to concrete findings and to -- or to underlying

21 evidence not taken into account by the Trial Chamber which would lead or

22 which could - I think this should be the test but you can argue the other

23 way around; that's for you - that could lead to the conviction of

24 Mr. Oric.

25 I recall that, in the beginning of this hearing today, I made the

Page 154

1 clear point that we have to made a clear distinction between findings and

2 underlying evidence when it is for us allegedly as submitted by you to

3 screen the entirety of the trial record. But no doubt I think it would

4 be helpful and would be only prudent if the Prosecution in response to

5 the submissions of the Defence could point to errors, maybe errors

6 committed by the Defence, or in any event to concrete findings, or to

7 evidence not used during trial but which is -- which forms part of the

8 trial record.

9 I think, in this spirit, we can conclude today's session, and we

10 will continue with this appeal hearing tomorrow in the same courtroom at

11 9.00 sharp. Thank you, all of you, for today.

12 --- Whereupon the hearing adjourned at 4.36 p.m.,

13 to be reconvened on Wednesday, the 2nd day of

14 April, 2008, at 9.00 a.m.