1 Wednesday, 2 April 2008
2 [Appeals Hearing]
3 [Open session]
4 --- Upon commencing at 8.59 a.m.
5 JUDGE SCHOMBURG: Good morning to everybody. May I again ask
6 Madam Registrar to call the case for today.
7 THE REGISTRAR: Good morning, Your Honours. This is case number
8 IT-03-68-A, the Prosecutor versus Naser Oric.
9 JUDGE SCHOMBURG: Thank you so much.
10 And to keep the record straight, may I again have the appearances
11 of today's day. Prosecution first.
12 MS. JARVIS: Good morning, Mr. President and Your Honours.
13 Michelle Jarvis appearing for the Prosecution, together today with
14 Ms. Christine Dahl; our case manager, Mr. Sebastiaan van Hooydonk; Laurel
15 Baig; Paul Rogers; and Nicole Lewis. Thank you.
16 JUDGE SCHOMBURG: Thank you.
17 And for the Defence.
18 MS. VIDOVIC: [Interpretation] [No interpretation]
19 JUDGE SCHOMBURG: May I interrupt you. We have the wrong
21 May we try it again.
22 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good
23 morning to my learned friends from the OTP. Good morning to all in and
24 around the courtroom. Vasvija Vidovic and John Jones on behalf of
25 Mr. Naser Oric. We are joined today by our legal assistants Jasmina
1 Cosic and Adisa Mehic, and Mr. Ternousui, our intern.
2 JUDGE SCHOMBURG: Thank you, so much, and I note again, as
3 discussed yesterday, Mr. Oric himself has waived his right to be present.
4 We will continue according to our addendum to the Scheduling Order today;
5 but beforehand, yesterday, the Defence was kind enough to grant us half
6 an additional hour in order to be short. But having re-thought this, I
7 think it would be helpful if Defence could indicate what is finally the
8 relief sought by Defence vis-a-vis the relief sought by Prosecution, and
9 this including also the alternative of the Prosecution's case and other
10 possibilities you want to address at this point in time.
11 Only a very short summary, please.
12 MR. JONES: Yes. Thank you. I think I can say very shortly, for
13 our appeal, we seek, in accordance with Article 25 of the Statute, for
14 the Appeals Chamber to reverse the decision taken by the Trial Chamber in
15 convicting our client and to substitute not guilty verdicts on Count 1
16 and Count 2. In terms of the Prosecution's alternative basis for
17 upholding the conviction, it's first our submission that this precedent
18 for the Defence supporting an acquittal on an alternative basis, but I'm
19 not sure if there is a precedent for a conviction being upheld on another
20 basis by the Prosecution.
21 I could be wrong about that. But in any event, we say that the
22 alternative basis had to be pleaded and had to be a trial issue, and we
23 say that the theory that the guards were subordinates of Oric but not
24 members of the military police was not pleaded at trial and was not a
25 trial issue, and therefore is not open as an alternative basis for the
2 For the Prosecution's appeal, we seek a dismissal of those
3 grounds we've responded to. Ground 5, we haven't responded to at all, I
4 think it's right to say, so it would only be right for our position to be
5 neutral on that ground.
6 Thank you.
7 JUDGE SCHOMBURG: May I add one point only that was briefly
8 addressed by Prosecution: What is your opinion on the question whether
9 or not is the alternative way. Was it part of the appeal of the
10 Prosecution or not?
11 MR. JONES: No. I think they conceded that it wasn't raised in
12 their appeal. I made the submission yesterday that they could have
13 raised the issue in relation to their ground 1. That would be a possible
14 ground of appeal for them, the ground 1, that the Chamber erred in not
15 considering that the guards were subordinates of Oric. That's really all
16 I think I can say on that.
17 JUDGE SCHOMBURG: Thank you so much.
18 MR. JONES: Thank you.
19 JUDGE SCHOMBURG: This was a little bit of warming up. Also, for
20 the Prosecution, I will put the same questions to the Prosecution later
22 But now the floor is yours, Ms. Jarvis, and you have 90 minutes
23 as of now.
24 MS. JARVIS: Your Honours, in light of the question that you've
25 just posed to the Defence and to the Prosecution, we're going to respond
1 first by addressing the matter of whether it is open to Your Honours to
2 sustain the conviction on the alternative basis of responsibility of
3 Mr. Oric directly for the guards, and then I'll hand over to my
4 colleagues who will present the remainder of our response submissions.
5 I want to make a preliminary point about -- [Microphone not
7 Yes. I would like to make a preliminary point about the
8 terminology that we've been using, and we've been referring to the
9 argument that Oric was directly responsible for the guards as an
10 alternative basis. That's correct insofar as it's an alternative basis
11 to the one that the Trial Chamber specifically used. But it's certainly
12 our position that it's not an alternative basis to the theory of
13 liability that was run at trial and that it was pleaded in the indictment
14 and the Defence fully defended against it. My colleague Ms. Baig will
15 address you in further detail in relation to that matter.
16 But when it comes to the more general issue that Your Honours
17 have raised about whether it is appropriate for the Prosecution to put
18 forward an alternative basis for the conviction, I want to make four main
19 points. First of all, there is, of course, no right in the Statute for
20 the Prosecution to file an appeal where the Trial Chamber has already
21 convicted the accused on the very same count at issue. So that was my
22 point yesterday, that under Article 25 of the Statute in filing its
23 notice of appeal, based on this judgement, the Prosecution could not
24 identify an error with an impact on the verdict. It was only by virtue
25 of the Defence appeal that this question arose.
1 We submit it would be untenable to require a party to the
2 proceedings to speculatively file a ground of appeal on alternative bases
3 for the trial judgement. It would lead to an unworkable extension of
4 appellate proceedings and notices of appeal.
5 The second point I want to make is that it is well established in
6 adversarial systems that a Court may affirm a conviction for any ground
7 established in the trial record, and Your Honour referred yesterday to
8 civil law systems and common law systems. We say, on this point, there
9 is no material difference. In both systems, it is perfectly permissible
10 for an appellate court to sustain a conviction on any basis that appears
11 from the record.
12 My third point, Your Honour, is that ICTY case law shows this to
13 be the correct position. Mr. Jones just referred to case law concerning
14 the right of an acquitted defendant to file additional reasons in support
15 of the acquittal, and we say that that principle is equally applicable on
16 the other side of the coin where the Prosecution is in a position of
17 putting forward additional bases to support a conviction. The principle
18 remains the same, and we have cited to relevant case law in our response
19 brief at paragraph 132 and I won't take you through those now, but
20 certainly that case law recognised that it is appropriate as part of a
21 response to put forward additional material that would support the trial
23 Your Honour, my fourth point is that the Appeals Chamber has,
24 indeed, on previous occasions sustained a conviction on an alternative
25 basis notwithstanding that the Prosecution did not formally appeal the
1 matter as part of its own appeal. We spoke yesterday in particular about
2 the Blaskic precedent, so I won't take you through that again; but, of
3 course, the Prosecution had no appeal at all in the Blaskic case, so the
4 alternative basis on which Blaskic's conviction for the use of human
5 shields was sustained was certainly not something that was part of the
6 Prosecution appeal.
7 The Simic appeal judgement provides a further example. In that
8 case, of course, the Appeals Chamber revised the basis of the conviction
9 from JCE to aiding and abetting, and that was done proprio motu by the
10 Chamber in the course of the consideration of the appeal. It was not
11 something the Prosecution had appealed.
12 Similarly, the Vasiljevic case, a similar example; the Kordic
13 case, the OTP had an appeal but not on the alternative basis on the
14 conviction ultimately found by the Chamber; and the Krstic case, another
15 instance where there was no OTP appeal in respect of the theory of
16 liability used, but the Chamber, nevertheless, substituted it of its own
18 So, Your Honours, we submit that it cannot be the case that the
19 Appeals Chamber proprio motu has the power to do that to sustain a
20 conviction on an alternative basis; but that when a party actually raises
21 as a suggestion during the hearing that -- or the proceedings that there
22 is an alternative basis, that that somehow limits or confines the Appeals
23 Chamber's ability to sustain a conviction.
24 Your Honours, that's all I had to say on that matter and I'll now
25 give the floor to Ms. Baig.
1 MS. BAIG: Good morning, Your Honours. Oric received a fair
2 trial on the basis of an indictment that fully informed him of the
3 charges against him. On appeal, he has argued that the indictment was
4 deficient because it failed to allege various aspects of the
5 Trial Chamber's reasoning. This is not so. The Trial Chamber's
6 judgement is consistent with the charges set out in the indictment. The
7 Prosecution's respondent's brief deals fully with the issues raised in
8 Oric's grounds 6 and 14 in relation to the indictment. I'll address here
9 today the indictment issues raised by the Defence yesterday during oral
10 argument and Your Honour's question this morning.
11 First, I will take you through the indictment to show that it
12 pleads the necessary material facts to ground a fair trial, both on the
13 factual and the legal theory set out in the judgement and the alternative
14 argument advanced by the Prosecution to support the conviction. Both of
15 these theories were available from the indictment. Second, I will
16 address Oric's claim that he was prejudiced.
17 Turning to my first point, the indictment meets the legal
18 requirements set out for the pleading of command responsibility. These
19 can be found in the Blaskic appeals judgement at paragraph 217. With
20 regard to the first Blaskic requirement, the indictment in this
21 case - and I believe that it's available on Sanction for Your
22 Honours - the indictment in this case clearly alleges a
23 superior/subordinate relationship between Oric and the military police.
24 As Ms. Jarvis mentioned yesterday, this obviously includes a
25 superior/subordinate relationship with Krdzic, the commander of the
1 military police.
2 In addition to the general paragraphs alleging effective control
3 and Oric's material abilities, I would direct your attention specifically
4 to the language of paragraph 15 and 22 of the indictment. 15 is up on
5 your screen. This allegation that Oric was the commander or was in
6 effective control of the military police is consistent with the basis
7 upon which he was convicted, and I direct you to the Trial Chamber's
8 finding in paragraph 532 of the trial judgement.
9 The indictment also alleges that Oric had command over all units
10 involved in the detention and custody of Serb individuals in Srebrenica;
11 that's at paragraph 15 blown up on your screen. Only one other unit or
12 group is mentioned in relation to the detention facilities, and that's
13 the guards. You will find the guards mentioned in relation to the
14 detention facilities at paragraph 23 of the indictment. Thus, both the
15 Trial Chamber's conviction on the basis that Oric was in effective
16 control over the military police and the alternative basis for sustaining
17 this conviction that Oric was responsible directly for the guards, both
18 of these theories were available on the indictment which met the pleading
19 requirements set out in Blaskic.
20 The second Blaskic requirement covers the subordinates' actions
21 and the accused's knowledge of them. There's no Defence challenge to the
22 knowledge requirement. With regard to subordinate conduct, this is found
23 in some detail in paragraphs 22 to 26 of the indictment. Focusing for
24 the moment on paragraphs 22 and 23 - and I believe that can be blown up
25 on your screen - the indictment pleads that the military police were
1 responsible for the detention; and in 23, that the guards or others
2 supported by the guards physically abused the detainees. Again, you find
3 consistency with the judgement, which found that the prisoners were
4 detained by and under the authority of the military police at judgement
5 paragraphs 487 and 488. Again, the military police were found to be the
6 subordinates of Oric, 532.
7 The Trial Chamber found that the military police, through its
8 commanders, were responsible for the acts and omissions of the guards at
9 the police station and at the building, and that's at paragraph 496 of
10 the judgement. Paragraph 23 is also important because it provides notice
11 that the guards participated directly in the murder and cruel treatment
12 and supported others to commit those crimes. Again, the Trial Chamber's
13 judgement falls squarely within the boundaries of the indictment.
14 The third Blaskic pleading requirement concerns the pleading of
15 the necessary and reasonable measures, the third element of command
16 responsibility. The indictment pleads that Oric failed to take necessary
17 and reasonable measures to prevent or punish the murder and cruel
18 treatment in paragraphs 18 and 26. This is supplemented by paragraph 16,
19 which lists his material abilities to do so. Specific measures to
20 prevent or punish are found in paragraph 21, which alleges that he should
21 have abided by the Geneva Conventions and should have ensured that units
22 under his command and control respected and applied those rules of
23 international law.
24 Paragraphs 23 and 21 plead that he was under specific orders from
25 the Presidency to initiate proceedings for legal sanctions against the
1 perpetrators under his command and control who violated international
2 law. Again, sufficient information, sufficient material facts to satisfy
3 the requirements of pleading found in the Blaskic appeals judgement.
4 Moreover, this was supplemented by some 26 paragraphs of the
5 pre-trial brief which detail specific measures that he could have taken
6 to prevent or punish. With specific reference to preventive measures,
7 because this was an issue on appeal, pre-trial brief paragraph 151
8 describes the necessary and reasonable measures which a superior officer
9 is required to take in order to prevent crimes of the subordinates.
10 These measures include instructing subordinates on duties under
11 international humanitarian law, imposing sufficient discipline to enforce
12 compliance with international humanitarian law, monitoring subordinate
13 command areas such as the prison perhaps, and ensuring that all necessary
14 measures to observe and implement international humanitarian law are
15 taken, reporting violations, initiating criminal proceedings, setting a
16 personal example, appointing reliable leaders.
17 Again, these measures are consistent with the Trial Chamber's
18 ultimate findings. The Trial Chamber found that Oric failed to take the
19 necessary and reasonable measures at his disposal to prevent the crimes
20 of which he was on notice. The Trial Chamber concluded that he should
21 have stayed informed of the fate of the prisoners and could have
22 redistributed his resources in order to ensure compliance with IHL.
23 At paragraph 570, the Trial Chamber emphasized the importance of
24 the humanitarian law principles governing the protection of prisoners,
25 emphasizing that they were of such fundamental importance that it could
1 not become a secondary priority.
2 Thus, Your Honours, the indictment pleaded all of the material
3 facts required by law to establish command responsibility. It was not
4 defective. It set out and pinned down the legal and factual elements of
5 the charges against the accused. Both the judgement and the alternative
6 theory supporting the judgement's conclusions fall squarely within the
7 four corners set by the indictment. If any vagueness could be shown, the
8 pre-trial brief, including its annexes, and the witness summaries
9 provided pursuant to 65 ter provide additional clear, consistent, and
10 timely notice of the charges against Oric, sufficient to cure any
11 potential ambiguity.
12 Yesterday, the Defence took -- spent some time arguing that the
13 guards were only linked to Oric through the military police. This was
14 one evidentiary basis advanced by the Prosecution at trial to prove the
15 allegation in the indictment that Oric was the superior of the guards;
16 however, this was not a material fact pleaded in the indictment. The
17 Prosecution was not required to prove this allegation in order to make
18 its case. The indictment does not allege that the military police and
19 the guards are one and the same; paragraphs 15, 22, and 23 show
21 Oric was on notice throughout the trial that the Prosecution --
22 sorry, Oric was on notice during the trial that the Prosecution was
23 arguing that the military police duties included guarding, but this
24 evidence was rejected by the Trial Chamber at the 98 bis stage. At that
25 point the, Trial Chamber found that it was not proven who the guards
1 were, but nevertheless found that the accused still had a case to answer
2 based on the existence of the superior/subordinate relationship between
3 Oric and the guards.
4 As you can see, the Prosecution's alternative basis of liability
5 supporting the conviction that Oric was a superior of the guards existed
6 since the beginning of this case. It is not a new theory. It was
7 certainly not pleaded, as was suggested yesterday, for the first time a
8 week before the hearing; the record shows otherwise.
9 Oric was on notice and defended himself against the Prosecution's
10 charge that he was responsible for the acts and omissions of the guards
11 who committed and aided and abetted others to commit the murder and cruel
12 treatment of the detainees. The Defence knew that this was a key
13 component of the case against him and defended vigorously against it. By
14 taking you through a brief citations to the record, you will see that the
15 Defence position on the guards was clear at trial.
16 In the Defence pre-trial brief of 4 March 2003, if you review
17 this, you will see that Oric defended against the general theory that the
18 crimes were committed by subordinates under Oric's effective control.
19 For example, pre-trial brief paragraph 68, Oric denies that he exercised
20 effective de facto control over the perpetrators of the crimes charged.
21 The perpetrators identified were the guards. There are many other
22 references in the Defence pre-trial brief.
23 Moreover, the Defence examination of Prosecution witnesses was
24 not, as suggested yesterday, limited to asking whether the guards were in
25 military or civilian uniform. The guards' clothing was not the key
1 issue. His defence was far more robust. Oric argued that the guards
2 were not responsible for any crimes, did not commit any crimes, did not
3 participate in any crimes. For example, I would draw your attention to
4 two examples: The cross-examination of Nikolic, found at transcript 2721
5 to 2722. Question from Mr. Jones.
6 "Q. As far as who beat you, Mr. Nikolic, in the prison, isn't it
7 right that it wasn't the guards who did it but people who broke into the
8 prison to - as you put it - see the Chetniks. It was those people from
9 outside who beat you?
10 "A. Yes."
11 And the witness goes on.
12 Another example of this can be found in the cross-examination of
13 Ivanovic, transcript 4180.
14 The Defence closing brief is also instructive on this point. It
15 clearly shows that Oric was defending against the allegation that he was
16 the superior of the guards.
17 At paragraph 216, the Defence closing brief argues against
18 responsibility via the guards for the opportunistic visitors to the
19 prison; paragraphs 489 and 492 defends against the identities of the
20 guards; 507, 508 allege that the Prosecution failed to prove accomplice
21 liability on the part of the guards; 512 to 517, arguing that the
22 evidence showed that the guards did not have the appropriate mens rea for
23 aiding and abetting responsibility, that they were only negligent;
24 paragraph 525, unless the guards could themselves be found guilty of
25 murder or cruel treatment, then there's no possibility of finding their
1 superior of those -- finding their superior guilty of those crimes.
2 Subordinate liability for the crimes is a predicate to superior
3 liability; and 584 to 586.
4 Your Honours, this is not a shifting case. Both avenues towards
5 the conviction were available from -- were available to the Trial Chamber
6 from the indictment. The Trial Chamber chose to follow the road of the
7 military police. It could equally have followed the direct link between
8 Oric and the guards. The trial was fair and the conviction was safe via
9 either route.
10 These are my submissions on the indictment. I'd be happy to
11 answer any questions that you might have.
12 JUDGE SCHOMBURG: That is not the case. Thank you, Ms. Baig.
13 MS. BAIG: I turn the floor to my colleague Ms. Dahl.
14 MS. DAHL: Good morning, Your Honour, my colleagues. May it
15 please the Court.
16 For the Defence appeal to succeed, Mr. Jones has to convince you
17 to dislodge several key factual findings regarding what Mr. Oric actually
18 knew about the cruel treatment and murders of prisoners in Srebrenica.
19 Mr. Jones demonstrated yesterday his able skills as a trial lawyer. He
20 must dislodge the specific factual findings of the Chamber about the
21 visible injuries worn by the prisoners and their freshness. He must
22 dislodge the findings specifically about Oric visiting those prisoners,
23 where he had an opportunity to see those injuries and must have noticed
25 To dislodge these factual findings, Mr. Jones has recycled the
1 same arguments that he presented to the Trial Chamber that were
2 considered and specifically rejected in the trial judgement, and he has
3 seized upon isolated passages of trial testimony typically drawn from his
4 pointed cross-examination of these victims where he put his case to the
5 prisoners. What Mr. Jones has not done, however, is satisfy the burden
6 to prevail on appeal before this Chamber by demonstrating that no
7 reasonable fact finder could have made the factual findings that were
8 made by the Trial Chamber here measured against the evidence as a whole,
9 not measured against isolated passages of cross-examination.
10 It is useful, therefore, to touch upon the facts as found by the
11 Trial Chamber in relation to the nature and severity of the prisoners'
12 injuries and their identification of Naser Oric as the person who visited
13 them while they were in detention and inquired about their injuries. The
14 Chamber considered expressly and rejected specific submissions by the
15 Defence regarding the patent nature of the injuries, the poor lighting
16 conditions, Mr. Oric's opportunity to observe the prisoners, and their
17 identification of him as the person who visited them in detention.
18 Between pages 148 and 154 of the trial judgement, the Chamber
19 made specific findings with respect to each of the named prisoners in the
20 indictment who suffered cruel treatment at the police station between
21 September and October 1992. The first group of prisoners were captured
22 together at a bauxite mine, and that would be Mr. Sarac -- Mr. Radic,
23 Mr. Brankovic, the fellow referred to as Nevenko Bubanj. They arrived on
24 September 24, 1992, together. Mr. Sarac arrived that evening.
25 The Trial Chamber was and the Chamber found that starting on the
1 very next day these individuals were subject to severe and repeated
2 beatings. For instance, the Chamber found, at paragraph 438, that on
3 25 September, Sarac was taken from the cell to be interrogated by an
4 individual in uniform who kicked him in the ribs. There he was beaten
5 until bloody and unconscious, whereupon he was returned to the cell.
6 When Slavo Zigic arrived 11 days later on a 5 October 1992, he found
7 Sarac there exhausted and covered in blood and, in his words, "looking
8 more dead than alive."
9 I focus on Mr. Sarac because I was concerned by Mr. Jones
10 critique of the images we displayed yesterday of Mr. Sarac. He would
11 have the Chamber, this Chamber, substitute its findings for that of the
12 Trial Chamber that on the day of his exchange on 16 October, Sarac was
13 clean-faced until he was beaten the morning of his exchange. We don't
14 quarrel with the evidence at trial that Sarac was, in fact, beaten again
15 after he saw Mr. Oric the night before his exchange on 15 October; but
16 the Chamber at trial found specifically that by 5 October, Sarac looked
17 more dead than alive and he was covered in blood.
18 We see the same pattern of picking isolated pieces of testimony
19 and building a Defence case on it. I would encourage the review of
20 Mr. Zigic's testimony as well as Mr. Radic's testimony. Their evidence
21 is compelling. The Trial Chamber found it to be credible and reliable.
22 And in determining both that the prisoners had suffered cruel treatment
23 and that Oric had actual knowledge of those prisoners' sufferings, the
24 Chamber found that Zigic's and Radic's testimony was worthy of belief.
25 In cross-examination of Mr. Zigic, Mr. Jones returned to
1 Mr. Zigic's arrival to the prison on 5 October and he stuck to his guns;
2 and he said that, when he got there, the people looked so bad that he was
3 panicky. He could foresee looking at these prisoners what was going to
4 happen to him. That is at transcript 3317 to 3318. By then, Mr. Kukic
5 had already been killed. When asked about who was beating them, Zigic
6 said simply at transcript 3206: "Well, you know whose hands we were in.
7 Who else could have done it?"
8 When Mr. Zigic was asked about whether the cell was guarded, he
9 said, at 3206: "Unfortunately, the cell had guards who were supposed to
10 take care of the prisoners; however, I can say freely that the guards
11 were there, but it's as if they didn't exist at all because anyone who
12 wanted to beat you could enter the room, which means that they were
13 there, but it's as if they weren't there."
14 The Prosecution queried how many guards were there. Mr. Zigic
15 said: "That changed. We couldn't know what was going on in the
16 corridor. The only things we saw were something that we know about.
17 There were always soldiers in the corridor," he said.
18 The Trial Chamber makes some specific references to beatings that
19 Sarac and others received in the reception room. The trial judgement
20 does not reiterate, and it need not, the graphic detail of the prisoners'
21 testimony. At page 312 [sic] of the transcript, Mr. Zigic explained:
22 "On a couple of occasions, they would take all of us to this other big
23 room, and there were about 30 or 40 soldiers there. It's very difficult
24 for me to describe that and to tell you how many of them were there
25 because there were so many. Then somebody from that group should shout,
1 'Who wants to beat whom?' The first time we went out, they didn't each
2 choose each of us."
3 Then he describes how they set upon a young man named Branko, and
4 I found --
5 JUDGE SCHOMBURG: May I interrupt you for a split of a second.
6 Is it your submission that these soldiers were subordinates to Mr. Oric?
7 MS. DAHL: I think that inference would be a reasonable finding
8 available from the evidence adduced at trial. The Chamber focused on the
9 lack of evidence against -- of the specific identity of the perpetrators,
10 but found that there was evidence that the -- there were soldiers doing
11 the beatings. So the answer to the question is yes.
12 JUDGE SCHOMBURG: And what would be the evidence supporting these
13 allegations? As far as I know - and please correct me if I'm
14 wrong - there's no such finding of the trial judgement.
15 MS. DAHL: That's correct, Your Honour. My submission is that
16 there was evidence of who was doing the beatings but not the specific
17 identities of the perpetrators; namely, the guards at the cells letting
18 people in and out or the people beating the prisoners through the cell
19 bars themselves.
20 JUDGE SCHOMBURG: Yes, but how can you then come to the
21 conclusion that they were subordinates to Mr. Oric? I'm afraid we have
22 heard a lot about the responsibility of Mr. Krdzic and the guards during
23 the two days, but what about the criminal liability of the accused in
24 this case, Mr. Oric?
25 MS. DAHL: That is traced through his actual knowledge that the
1 prisoners were being beaten, that the military police were subordinated
2 to him, and that he had a duty to ensure the proper care of the
3 prisoners. And when he received alarming information about the beatings
4 and murders of prisoners, he did nothing to investigate that further.
5 In finding Oric's actual knowledge of the state of the prisoners,
6 the Chamber relied on Mr. Oric's acknowledgement that he had visited the
7 Serb detainees at the Srebrenica police station on two occasions. That
8 finding is at paragraph 536 of the trial judgement. The Trial Chamber
9 then reviewed the identification by Mr. Radic and Mr. Zigic of Oric as
10 the person who visited them, and found that the evidence of the
11 identification interlocked because Mr. Sarac knew Oric from before the
12 war and was able -- and the other prisoners were able to identify Oric as
13 the person visiting them.
14 Now, yesterday, Mr. Jones seized on isolated passages of his
15 cross-examination regarding the identification. In both instances, the
16 witnesses affirmed their identification; for instance, Mr. Zigic, at
17 transcript reference 3279, described Mr. Oric as well-built, 180
18 centimetres tall, and quarrelled with Mr. Jones about whether or not
19 Mr. Oric wore a beard. In an initial interview statement, he was
20 recorded as having said Mr. Oric did not have a beard. What he explained
21 at trial is that, when he referred to a beard, he didn't mean like an
22 Orthodox priest or a scientist or something like that. It was a very
23 short beard or mere stubble. Zigic allowed for the possibility that he
24 could have been mistaken. He said at the moment he gave the description
25 that's what he had; but as far as he was able to judge after all the
1 beatings, that's a different matter altogether. That's at transcript
3 Now, the Defence's case at trial was not mistaken identity with
4 respect to Mr. Zigic but outright fabrication. He denied Mr. Jones'
5 specific assertion that he had invented the story that he met Oric while
6 detained. He said: "I did not invent the story because those other
7 people who were in the prison already knew him, and they said, 'Stand up
8 people, Naser is coming.'"
9 Mr. Radic was also able to give specific, credible testimony
10 credited by the Trial Chamber to identify Mr. Oric as the person who came
11 to visit him. At transcript 3544, he said: "Mr. Naser would introduce
12 himself, saying, 'My name is Naser Oric, in case you don't know.'" He
13 said: "He would come in uniform with lilies, camouflage uniform. He did
14 not introduce himself as the commander." He said that Sarac had told him
15 that Mr. Naser -- that he knew Mr. Naser before the war. He also said
16 that Mr. Oric shortly after Kukic's death came to inquire about what had
17 happened to him.
18 The Trial Chamber specifically found that the prisoners did not
19 admit the cause of their injuries out of fear, a reasonable fear, for
20 their self preservation. For instance, at footnote 1493 of the trial
21 judgement, the Chamber said that the reluctance to admit out of fear of
22 being beaten was not to impute that they had fear of the accused but that
23 they denied the source of their injuries out of general fear and self
25 The Chamber made specific findings between paragraphs 536 and 543
1 regarding the actual knowledge that the accused had of the cruel
2 treatment being subjected to the prisoners. At paragraph 541, the
3 Chamber specifically rejected the Defence's submissions about the
4 incorrect identification, and the Defence has done nothing to rebut the
5 specific analysis of the Trial Chamber.
6 In fact, seizing on the alternative conclusion at footnote 1500,
7 the Defence does nothing to reconcile itself with the Chamber's finding
8 that setting aside whether Mr. Oric went to visit the prisoners, whether
9 or not the lighting conditions were bad, the Chamber would reach the same
10 conclusion based on Oric's actual knowledge of the killing of Kukic,
11 because that fact in and of itself puts him on notice that the other
12 detainees could be exposed to maltreatment.
13 I need to reserve the remainder of the time for my colleagues
14 this morning.
15 JUDGE SCHOMBURG: Thank you.
16 MR. ROGERS: Your Honours, good morning again. I said yesterday
17 that I would be joining an issue with Mr. Jones regarding some of the
18 evidential matters, and I will be doing that again now. Your Honours, my
19 submissions are focused on the challenge to effective control in the
20 second period by the appellant, and his essential argument is that the
21 War Presidency commanded the military police.
22 I'll make four points, first of all, that the Trial Chamber were
23 entitled to reach the view they did on the totality of the evidence;
24 secondly, that many of the appellant's submissions relating to the
25 evidence are without foundation when more closely ana lysed; thirdly,
1 that the evidence established that the Srebrenica military police, the
2 military police, were subordinated to the military; and, fourthly, that
3 none of the witnesses upon which he primarily relies to establish that
4 the War Presidency controlled the military police, Sacirovic, Djilovic,
5 and Smajlovic, are, A, reliable, and, B, in fact, members of the War
6 Presidency or, indeed, of the Srebrenica armed forces staff, and so were
7 not best-placed to give the evidence they did in relation to the
8 Srebrenica military police. There are then two smaller points which I
9 may or may not have time to deal - I will probably just touch them -
10 relating to the role of Smajlovic, Becirovic, and Salihovic, which are
11 also features of the appellant's challenges.
12 Your Honours, as I said yesterday, the Trial Chamber were
13 entitled to rely on the totality of the evidence in the way that they
14 did. The appellant sets out his complaints relating to their assessment
15 of evidence at length; and as I reminded Your Honours yesterday, the
16 Trial Chamber dealt with them over 23 pages in section 2 of their
17 judgement. So they very carefully assessed the challenges to the
18 evidence; they carefully weighed the conflicts that are obvious; and one
19 would expect, from a trial of this length, focused closely as it was on
20 oral evidence and on documents; and made their judgement in the way that
21 they did.
22 The appellant's isolationist approach to the authenticity and
23 reliability of each individual exhibit or piece of testimony misses the
24 cumulative effect of that testimony and the mutually corroborating nature
25 of the evidence, and that was not lost upon the Trial Chamber. Plainly,
1 much of this evidence, in particular the documentary evidence, was
2 mutually corroborative; and whilst there may have been individual
3 challenges to parts or pieces of the documents, when they're looked
4 together -- looked at together, one can see how they corroborate and
5 support each other.
6 Your Honours, in relation to the appellant's submissions that
7 I've said are without foundation when ana lysed, I don't have time to,
8 nor could I, possibly hope to go through each and every one, and nor did
9 Mr. Jones yesterday when he adopted a similar approach to that which I'm
10 going to adopt. But I'd like to, if I may, touch a few of the particular
12 First of all, paragraph 25 of the Defence appeal brief says that
13 all four witnesses who spoke about Exhibit P109 said that the "War
14 Presidency established the military police" and appointed Halilovic, so
15 the two ideas come together. He relies upon Bogilovic, Smajlovic,
16 Sacirovic, and Djilovic. But Bogilovic did not say that the War
17 Presidency established the military police, T6423 to 4. His comments
18 relate solely in our submission to the appointment of Halilovic; nor did
19 any of the other witnesses in the paragraphs that are cited state that,
20 exhibit for Smajlovic, and I except he did.
21 Your Honours see, at first blush, it looks as though there are
22 four witnesses that are all giving mutually consistent evidence. The
23 truth is, in fact, only one so far as the establishment of the MP is
25 Paragraph 28 of the Defence appeal brief again refers to P109,
1 the decision of the TO staff, and it was said that Bogilovic had agreed
2 that this was a mistaken formulation of the actual decision. But if Your
3 Honours look at the section of the transcript at 6425, you see where this
4 was dealt with, and the question is put: "Do you agree that this kind of
5 document, which is entitled "Decisions of the TO Staff of Srebrenica"
6 could be simply a clumsy formulation by someone?"
7 Well, then, you can imagine how it's happening in the courtroom.
8 As the words most probably are coming out, counsel for the Prosecution is
9 on her feet, saying: "Your Honour." And the Judge is says: "Yes, yes.
10 You needn't object. It's an improper question, and the question is then
11 withdrawn. Yet this reference, this isolated statement, appears as a
12 proposition for the authority that the witness actually agreed and is put
13 forward as authoritative, and it is plainly wrong.
14 Paragraph 50 of the Defence appeal brief is a reference to
15 Meholjic, stating that the MP was part of the civilian police until April
16 1993, that's the quote, "until April 1993," giving the impression that
17 his evidence was that throughout the entire period, between 1992 and
18 1993, this body was part of the civilian police.
19 Firstly, this quote relates to when he appeared at the police
20 station in April 1993 after demilitarisation to take over and found the
21 bodies mixed together, and then it omits to state that he said also in
22 his evidence, at T7091 to 3, that he hadn't been allowed in the police
23 station for the entirety of the time that he was in the Srebrenica area.
24 He was an officer that was working at fighting, but there was obviously
25 some difficulty between him and his personality and the other members of
1 the TO staff, and he was excluded from the police station for the whole
3 It's said at Defence appeal brief paragraph 169 that the witness
4 Djilovic was not challenged when she stated that Osmanovic - and this is
5 a plank that the Defence rely upon to suggest that Osmanovic could not
6 have signed or been present at meetings where the armed forces were being
7 reformed and the military police was being reformed and being used - it
8 was said that she had not been challenged about her evidence that she
9 wasn't in Srebrenica. That's wrong. She was challenged specifically at
11 At paragraph 203 of the Defence appeal brief, the -- he
12 challenges the forensic integrity of the interrogation notes of Salihovic
13 and lists eight exhibits and asserts that the only forensic evidence
14 was - that's the quote - "the only forensic evidence was" that the
15 signatures of these exhibits was forged. In fact, the trial judgement
16 found that only four of those eight documents were questionable,
17 paragraph 40 of the judgement; and at paragraph 68 to 70 of the
18 judgement, expressly stated its reservations about the candor of the
19 expert upon whom the Defence seek to rely for this statement in the
20 evidence that he gave.
21 So, Your Honours, it's dangerous to rely upon this type of
22 assertion, and these problems arise throughout. The Trial Chamber did
23 not go so far in relation to those exhibits as to accept the evidence
24 relied upon by the Defence that the signatures were forged. It said that
25 they were questionable and instead it looked elsewhere for corroborative
1 evidence, and then relied on the documents, as it was entitled to do.
2 Yesterday, Mr. Jones referred to Defence Exhibit 247 in his
3 words, "an absolutely key exhibit," on the issue of whether the War
4 Presidency was in control of the prisons; and therefore, he says, the
5 military police. But if Your Honours look at the document - and we've
6 got it back up on the screen for closer scrutiny - we can see that, A,
7 it's dated the 28th of February, 1994, a year of demilitarisation; and it
8 says: "Decision, the work reports for 1993," no time-frame for 1993
9 elicited, "were adopted."
10 Then you see the report the municipal prison in Srebrenica,
11 number 1 of 94 - so the report is number 1 of 1994 - of the 10th of
12 January, something or other. Well, we don't know if that's a report of
13 1993 or 1994. And how this document could be inflated to become an
14 absolutely key document is, indeed, extremely questionable. It does not
15 support the proposition on any analysis, any proper analysis, that the
16 Defence seek to draw from it.
17 Moving on, counsel referred to the evidence of Ivanovic yesterday
18 in relation to the allegation that Oric visited the Serb detainees in
19 hospital and stated that he did not record Oric visiting him in the
20 hospital - that's right, he didn't - but he did record being escorted
21 there by soldiers and that he was there with other prisoners.
22 When that evidence is added to the evidence of Dr. Mujkanovic,
23 who stated that Oric visited the hospital every week and that Serb armed
24 forces were kept separately, that is, Serbs who were being treated,
25 prisoners, were kept separately from the others, and that those people
1 were being guarded by armed guards, T5001, the context is clear that he's
2 saying that these guards were members of the Srebrenica TO. That's a
3 statement he makes quite categorically in his evidence. The only thing
4 he couldn't say was whether they were military police or not.
5 So, Your Honours, when you put the evidence together, there's a
6 proper inference that Oric was visiting the hospital and would have seen
7 Serb prisoners at the hospital. To take it in the isolated way in which
8 my learned friend seeks to do is to put forward a proposition that is not
10 He also refers to P45 as the most important exhibit in the case.
11 This you will recall refers to the committee for mediation and exchange,
12 but only shows coordination in February of 1993, and that is not
13 inconsistent by the statement made by Hogic, as I referred to yesterday,
14 that civilian authorities had some or could have had some involvement in
15 the arrangements by that stage; but, nevertheless, the detaining force,
16 the detaining group, would have been the military police.
17 So the mere involvement of civilians within the arrangements of
18 prisoner exchange has got nothing to do with subordination of the
19 military police at all. And it's interesting to note that whilst the
20 Defence seek to rely on Mr. Hogic for his comments in relation to the
21 documents setting up what he describes as the authority, whereby he says
22 that it would be ultra vires to have a military police unit at that time.
23 He likes that piece of the evidence but then doesn't like Hogic's
24 evidence relating to how a military police unit functions and seeks to
25 reject all of that. That lacks internal consistency we suggest.
1 Finally, in relation to the Defence complaint about the treatment
2 of Bogilovic, the evidence of Bogilovic - and you'll remember my learned
3 friend spent some time yesterday suggesting that Judge Agius had rejected
4 the entirety of Bogilovic's evidence based upon a simple statement at the
5 end of or during re-examination by Ms. Sellers - it's quite clear that
6 upon a closer analysis, at T6519, his comment is relating to evasive
7 answers given about a particular document, P254E, and that Bogilovic was
8 evading, in our submission, answering a question that implicated Mr. Oric
9 on the issue of whether an order had been issued by him, Oric, putting
10 into effect 254E.
11 That was in re-examination; and, in fact, Ms. Vidovic on behalf
12 of Mr. Oric sought and asked further questions in cross-examination
13 stemming from the re-examination after this complaint is made, at which
14 it is suggested that they no longer considered the need to ask any other
15 questions because of this statement by the Judge. In our submission,
16 plainly wrong.
17 The evidence did, however, establish that the military police
18 were subordinated to the military. It's the logical place for it to be
19 for the reasons outlined yesterday. By the time the crimes in the second
20 period were committed, in our submission, they were clearly under
21 military control. So the circumstances of Mr. Halilovic's appointment,
22 as opposed to his dismissal, perhaps are less significant for the second
23 period. The Trial Chamber's findings as to his appointment, however,
24 were ones that they were entitled to reach. Yesterday, I took you to P4,
25 the document of the 15 of June, 1992, showing Mr. Halilovic being
1 required to organize the VP, Vojna policija, as Mr. Jones confirmed for
2 us; and I took you to P80 at page 3, as well.
3 And, in our submission, P80 shows and is consistent with other
4 material at the time how the armed forces were being organized. The
5 military police were functioning as a military unit; and I remind the
6 Tribunal, if I may, of the evidence from the first period regarding
7 Oric's involvement in the prisoner exchanges, and I gave you the
8 references to that evidence.
9 It didn't stop there. The military exercised and continued to
10 exercise control and grew its control in a way that is evidenced by the
11 documents over the period from September through October, November, and
12 December of 1992.
13 P176E, 3rd of September, 1992, shows the establishment of an
14 operations staff with Osmanovic as its chief by the Srebrenica armed
15 forces. Significance of that is that Osmanovic makes appointments and
16 clearly would have been reporting to Oric as the staff commander.
17 P79E of the 15th of September, 1992, is a proposal - and I accept
18 it's a proposal - by Osmanovic for key appointments including those of
19 Salihovic and Becirovic; Salihovic, I remind the Tribunal, was the head
20 of intelligence responsible for interrogating these prisoners.
21 The appointment of Osmanovic is shown as his reporting directly
22 to Oric at P8E. That proposal is borne-out by other documents.
23 And P84E, the memo pad, 23rd of October, 1992, we see minutes of
24 the operations staff concluding that a conversation will be had with the
25 commander of the military police, and I think that section is on your
1 screens. It starts on page 12, and that's the first section and then it
2 moves on. Item 1A on page 12 says: "In the letter, the Territorial
3 Defence asked for appropriate measures to be taken against soldiers and
4 civilians causing problems on the ground."
5 This is a meeting of the armed forces operations staff. It was
6 decided to order the military police to bring soldiers into custody and
7 the civilian police will do the same with civilian troublemakers. Then
8 later on it was concluded a conversation will be held with the military
9 police commander in the staff headquarters regarding the functioning of
10 the military police. The commander, Oric, will also be in attendance.
11 Next point, it was decided that the military police would go to
12 Poloznik, et cetera, et cetera. Your Honours, it's quite clear that
13 military, as at the 23rd of October, from this minute were directing the
14 operations of the military police.
15 P7E shows the reorganization. I mentioned this yesterday with
16 the codes of the 31st of October, and we've had highlighted on this
17 document the reorganizational order. This is an order issued by Oric.
18 You see, at the top, armed forces staff with the code 1357, and then you
19 see at the bottom military police with the code 1357/7. The significance
20 of the upward yellow highlight is to show that that other group were also
21 subordinated directly to the Srebrenica armed forces staff.
22 And if we had the time, which we don't we could go through the
23 documents P84, P80, and others, and pick out these formations being
24 discussed and coming to effect between September, October, November, and
25 December of 1992.
1 P5E is an order of the 31st of October, 1992. Following on from
2 a War Presidency order, this order is directed by -- from Oric to the
3 military police.
4 And P84, page 21, shows the minutes of the 9th of November, a
5 joint meeting, where the War Presidency and the Srebrenica armed forces
6 police discussed their activity of the military police. But what's
7 important from that is that they were clearly being discussed as two
8 separate units, and then there is a quote in there, stating that: "The
9 civilian police do not have the right to intervene in the case of units
10 stealing from one another."
11 So there was a reservation of military activity as you would
12 expect: Military police, military crimes, civilian police, civilian
13 crimes. That's clearly being discussed between the two groups. Zulfo
14 Tursunovic, on page 21, states that military police belonged to the armed
15 forces and not to the War Presidency.
16 There are other documents that show the development of the War
17 Presidency -- sorry, the development of the armed forces staff involving
18 the military police: The 22nd of November minutes show the request for
19 dismissal, and P11E shows the reorganization of the MP. That follows on
20 from the meeting of the 22nd of November where the same structures are
21 being discussed. The structures that you see on P11E can also be
22 identified on page 28 at P84. And on P12E, 6th of December, Krdzic
23 having been appointed is authorised by Osmanovic to hire and fire
24 military police staff. Then you have regular reports.
25 Your Honours, there is an abundance of evidence showing the
1 control by the military. None of the witnesses upon whom he primarily
2 relies to establish that the War Presidency controlled the SMP were
3 members of it, members of the War Presidency. Only Smajlovic was a
4 member of the armed forces, but he was engaged in front line fighting.
5 The Defence witness Sacirovic - and it's right I draw Your
6 Honours' attention to this - upon whom the Defence essentially relied to
7 establish the War Presidency controlled the SMP and to comment on the
8 effects of documents that he had not written and arising from meetings at
9 which he had not been present said this - and I'll see if that can be put
10 up on Sanction, please; it's the transcript reference T13286, the
11 evidence of Sacirovic - one of those moments I suspect counsel have been
12 in when they ask questions of a witness and an answer that perhaps
13 surprises them comes.
14 "Q. Was the War Presidency, in fact, functioning properly, as
15 far as you could see, in July 1992 ..."
16 This is from Mr. Jones.
17 "A. It could not have functioned in the true sense; and, in my
18 opinion, it existed more on paper than in reality. It," the War
19 Presidency, "did not really have the ability to create anything.
20 "Q. All right."
21 Pause. Surprise, perhaps.
22 "JUDGE AGIUS: Thank you, Madam Vidovic. Yes, Mr. Jones.
23 Mr. Jones says, "Yes." Tries in my submission to perhaps repair
24 the damage.
25 "Q. I was asking about July 1992, but the statement that you've
1 just made, that it couldn't function, it existed more on paper, is that
2 for any particular time-period or is that right through to
4 "A. That is right. That is true for the entire period through
5 to demilitarisation because there were no conditions in place to enable
6 it to function properly."
7 That is the evidence of a witness upon whom the Defence rely to
8 show the control of the War Presidency.
9 As for Djilovic, she also is a witness upon whom great reliance
10 is placed as to her accuracy of recollection as to who were in positions
11 of authority, and she said at T15367, unprompted by anyone, that Mirzet
12 Halilovic was a member of the War Presidency. No one, including the
13 Defence, has ever suggested that that was right. It's plainly wrong. So
14 much for how reliable she may be concerning the evidence she gives of her
16 Your Honours, those are my submissions. Unless you have any
17 questions, I propose to hand over to Ms. Lewis.
18 JUDGE SCHOMBURG: Thank you.
19 Ms. Lewis, you have a further 15 minutes sharp.
20 MS. LEWIS: Your Honours, I will be addressing the -- I will be
21 addressing Oric's submissions concerning the fact that the military
22 police were not the detaining force. In view of the -- of my very short
23 time allocations, I will address only the submissions that Mr. Jones made
24 yesterday. I will address them in the following order.
25 Firstly, I will address his submission that Oric's record of
1 interview, Exhibit P329, should not have been admitted and that it should
2 not have been relied upon to the extent that the Trial Chamber did.
3 Secondly, I will address the submission that the Trial Chamber erred when
4 it relied on the testimony of Bogilovic because he had the motive not to
5 incriminate himself. Finally, Your Honours, I will address his
6 submissions concerning the testimony of Djilovic and the other Defence
7 witnesses to whom he pointed in making his arguments that the
8 Trial Chamber erred in its -- in not finding that it was the civilian
9 police who had control of the detainees.
10 If it pleases the Court, I will proceed to deal with my
11 submissions concerning Oric's record of interview, P329. Your Honours,
12 Mr. Jones argued yesterday that the Trial Chamber erred in admitting and
13 relying on this piece of evidence because of the inaccuracies in the
14 translation and because of the fact that in the course of the interview
15 he referred to outside sources. Your Honours, this was -- these
16 submissions were fully canvassed at Trial Chamber and they were dismissed
17 by the Trial Chamber in its decision on the Defence's motion to exclude
18 the interview of the date of the 23rd of January, 2006, and again in the
20 The Trial Chamber stated that the Tribunal's translation facility
21 had reviewed the transcript and had pointed out the errors; and, in
22 addition, it held further that insofar as the Defence had pointed out
23 errors in the record of interview that it would rely on the Defence's
24 version of the interview. It consequently found that the record of
25 interview was reliable. It found further that, during the interview,
1 Oric's rights as a suspect under rules 42 and 43 had been upheld. On the
2 basis of this -- of the Appeals Chamber's decision in its interlocutory
3 appeal decision on the admission of a record of interview from the bar
4 table in Halilovic dated the 19th of August, 2005, it was therefore
5 reasonable for the Trial Chamber to admit -- to admit this exhibit as
6 soon as it had found that it was, in fact, reliable.
7 In addition, Your Honours, once it had found that the record of
8 interview was reliable, the Trial Chamber was well within its right to
9 accord it whatever probative value it saw fit. The record of interview
10 in this particular case was the accused's own version of the events at a
11 time when you would have had far less motive to attempt not to
12 incriminate himself. As such, the Prosecution submits that it was a very
13 probative piece of evidence and that the Trial Chamber could, in fact,
14 have been far more robust in the manner in which it dealt with it.
15 I will now proceed to address the -- Mr. Jones' submissions
16 concerning Bogilovic. Your Honours, I won't address the points that my
17 colleague Mr. Rogers addressed. I will simply address Mr. Jones'
18 argument that the Trial Chamber was incorrect to rely on the testimony of
19 Mr. Bogilovic in view of the fact that he had the motive to avoid
20 incriminating himself. Your Honours, the Trial Chamber considered this;
21 it considered it fully at paragraph 484 of its judgement. It weighed
22 this against the fact that, as the chief of the Srebrenica public
23 security station, Bogilovic's knowledge should be weighed against
24 whatever motive he may have had not to incriminate himself, and as such
25 it relied on his testimony for its findings that the military police were
1 based on the ground floor of the police station building and for its
2 finding that the civilian police were not in control of the detainees.
3 With regards to the evidence that Mr. Jones pointed to, the
4 evidence of Djilovic, firstly, my colleague Mr. Rogers has pointed out
5 the fact that Djilovic testified that Halilovic was a member of the War
6 Presidency, which he was not. She also testified, at transcript page
7 15305, that she only attended meetings of the War Presidency when she was
8 requested to do so by the president. At transcript page 15321, she
9 testified that she had very -- that she had limited knowledge of the
10 events at that time. She was asked what Oric's duties were, and she
11 replied that she didn't know. She said: "I didn't have to know
13 She made a further two errors. The first error was that she
14 testified that there was no armed forces at that particular point in
15 time; there was no army. Your Honours, we know this to be incorrect. It
16 was on this assumption that she testified that the military police didn't
17 exist, and it was also on this assumption that she testified as to the
18 subordination of Halilovic and Krdzic. And we therefore submit that the
19 Trial Chamber was correct in not relying on her testimony; and contrary
20 to Mr. Jones' submission, they state clearly in paragraph 483 of the
21 judgement that they did consider her evidence and that they rejected it.
22 With regards to the other witnesses to which Mr. Jones has
23 pointed, I would simply submit very briefly, in view of my time
24 constraints, that at their highest what these witnesses pointed to was
25 the fact that civilian police officers had some involvement with the
1 prisoners, whether it was escorting prisoners or during an exchange.
2 Your Honours, this isn't surprising, considering the fact that the
3 civilian police occupied the building as the military police. It's not
4 surprising that they would have been asked to assist, perhaps, on
5 occasion with escorting a prisoner. More importantly, the testimony of
6 these witnesses does not detract from the overall conclusion that the
7 Trial Chamber drew on the basis of the evidence before it that it was the
8 military police that were in control of this -- of the detention
9 facilities and the detainees.
10 And to simply round off my submissions, I would point out that
11 this wasn't a mere assumption of the Trial Chamber, that they relied on
12 five pieces of evidence: The record of Oric's interview, Bogilovic's
13 testimony, the testimony of Mujkanovic, as well as Exhibits P15 to 19,
14 that they weighed this evidence carefully and their conclusion on the
15 basis of this evidence was therefore reasonable.
16 If there are no questions from the Bench, I will hand over to my
17 colleague Ms. Jarvis.
18 JUDGE SCHOMBURG: Ms. Jarvis, you have another six minutes.
19 MS. JARVIS: Thank you, Your Honours. I'm going to make just two
20 points by way of conclusion to the Prosecution's submissions today, and
21 the first point relates to an issue that Your Honour Judge Schomburg
22 raised at the end of yesterday's proceedings, and, of course, relates to
23 question number 4 issued to the Prosecution, which also we say is that
24 this same issue was raised in question 2 on the Defence appeal.
25 That is the question of whether a superior in Oric's position
1 must have reason to me of the commission of the crimes or of his
2 subordinate' role in the commission of the crimes. I want to clarify
3 that the Prosecution's position certainly is that the superior must have
4 reason to know of his subordinates' criminal culpability for the crimes.
5 We don't suggest it's enough for a superior to know in general of
6 criminal conduct occurring.
7 Your Honours, the Trial Chamber's findings on this issue are set
8 out in paragraph 560 of the trial judgement, and there the finding is
9 stated as Oric had reason to know of the crimes of murder and cruel
10 treatment in the second period. Your Honour, we say, given the context
11 of this case, what we are dealing with here are a prison environment, a
12 closed system of regulated access to the prisoners, that this implicitly
13 amounts to a finding that Oric had reason to know of his subordinates'
14 role in those murders in cruel treatments. Let me try and explain by way
15 of example.
16 Assume that Oric had received a report that there had been
17 killings in a village surrounding Srebrenica and nothing more. On its
18 own, that may well have not been sufficient to put him on notice, that
19 his subordinates had any connection with those killings. Assume, though,
20 he had the same report and he knew that his units had, at the very time
21 those killings occurred, been in that village carrying out combat
22 operations. That may well start amounting to a situation where Oric had
23 reason to know of his subordinates' role in those crimes.
24 But, Your Honours, consider the case you have before you here,
25 not a village in some outlying area, not a general situation; it's a
1 prison being run by subordinates under Oric's command. When murder and
2 cruel treatment happen in that kind of environment where the prisoners
3 are kept in locked cells, under guards, and their access -- access to
4 them is controlled, we say the inevitable conclusion must be that there
5 is reason to know the subordinates involved in running those prisons are
6 implicated in the crimes and that a superior in that position, in Oric's
7 position, must do something to act on that alarming information and
8 ensure that the risk of continued mistreatment is eliminated.
9 That leads me to my second point. Your Honours have heard a lot
10 during this appeal hearing about daisy chains and attenuated theories of
11 liability, but I invite Your Honours at the conclusion of all of this to
12 cut to the heart of the matter and consider what it really is that Oric
13 has been convicted of in this case. He has been convicted because, as
14 commander of the SAF, he failed to ensure that his subordinates were
15 according proper treatment to Serb prisoners being held by the SAF. It's
16 not more complicated than that.
17 Oric's subordinates had a duty to ensure the proper treatment of
18 the prisoners, Oric knew of a real and reasonably foreseeable risk that
19 they weren't carrying out that duty, and he failed to take all the
20 necessary and reasonable measures to prevent those crimes from happening
21 in the future. Oric's conviction is justified in the same way that any
22 other conviction for superior responsibility is justified when all the
23 elements of that mode of responsibility are met.
24 Your Honours, we submit that Oric's arguments about the layering
25 of the Trial Chamber's reasoning only serves to emphasize his superior
1 position. The higher up the chain of command the accused is, the greater
2 the prospect that there will be intermediate levels of command between
3 him and the perpetrators of the crimes on the ground, but that's not an
4 argument for extinguishing superior responsibility. That's an argument
5 for considering his breach of duty all the more grave because of his
6 senior position.
7 Your Honours, in this case, the Chamber located Oric's
8 responsibility through the military police commander Atif Krdzic. We say
9 there was nothing improper in that, but the Chamber could equally have
10 dispensed with this intermediate layer of analysis; and as we've
11 explained, it could have held Oric directly responsible for the guards.
12 Oric asserts the basis of his conviction is uniquely limited;
13 it's not. The factual scenario in this case involving the abuse of
14 prisoners by guards and others entering from the outside is not uncommon
15 in the cases before this Tribunal. Other accused persons have been
16 convicted under Article 7(3) based on a very similar theory of liability
17 to the one adopted in this case, and I would point Your Honours in
18 particular to the Krnojelac judgement at paragraph 319. The layering in
19 that case was no different to this one here. Krnojelac was guilty under
20 Article 7(3) for guards who aided and abetted crimes by omission. Here
21 Oric is guilty for the military police who aided and abetted by omission.
22 That concludes my section.
23 JUDGE SCHOMBURG: Thank you, Ms. Jarvis, for that brief summary.
24 For technical reasons we have to take a break and we will continue at
25 five minutes to 11.00 sharp.
1 --- Recess taken at 10.34 a.m.
2 --- On resuming at 10.54 a.m.
3 JUDGE SCHOMBURG: Thank you.
4 And now the final section of the appeals hearing is for the
5 Defence for the reply to the response by Prosecution.
6 Mr. Jones, the floor is yours.
7 MR. JONES: Thank you. May it please Your Honours.
8 I'm going to start, if I may, with a question which Your Honour,
9 Judge Schomburg mentioned towards the end of the hearing yesterday, and
10 it was in relation to actual knowledge and imputed knowledge on the part
11 of Oric and Krdzic and the findings that were made and the relevant
12 evidence in relation to those findings. I particularly want to examine
13 that in relation to the building.
14 The building is where, you will recall, the five murders
15 allegedly occurred and many of the beatings. Today, this morning,
16 Ms. Dahl certainly dwelt on the SUP and Zigic and Radic and those
17 beatings and the images from the video. So let's recall, that's all from
18 September/October 1992; and when we move to the building, a different
19 location, it's much later, January to March 1993. So that needs to be
20 considered in its own right.
21 You have, in the back of the judgement, a helpful picture or
22 diagram of where the building is, and you'll find that at annex D. It's
23 an aerial photograph of Srebrenica. And, when you consult that, you'll
24 see the police station and detention facility on the road towards
25 Potocari, and then the -- it's marked as prison right behind the
1 municipal building, which is where the War Presidency sat. It's a few
2 hundred metres from the SUP.
3 We have -- if, in fact, the Defence screen could be activated, we
4 can show a photograph. This is actual from the on-site visit because of
5 course there was an on-site visit in this case, and you will see the
6 gentleman in the baseball cap is Judge Eser, in fact, followed by the
7 other Judges, going up the alley-way towards the building at the end; and
8 if you go left at the end, the building is behind there. It's
9 significant, it's hidden away, the building; it's concealed, as I say,
10 behind the building immediately to our left.
11 Now, so I'm going to deal first with Oric's knowledge, actual or
12 imputed, in relation to the building. Now, if you look at paragraph 547
13 of the judgement, the Trial Chamber considered it unsafe to rely on
14 Ivanovic and Stamenic for any identification of Oric at the building.
15 "Therefore, there is insufficient evidence that, between December
16 1992 and March 1993, the accused visited either the Srebrenica police
17 station or the building ."
18 Now, that's one very important finding. Then it goes at
19 paragraph 548 to say that Zulfo Tursunovic visited detainees at the SUP
20 and at the building, but: "There is no evidence that he ever shared such
21 knowledge with the accused. Therefore, there is no direct evidence that
22 the accused obtained information about the condition of the Serb
23 detainees in this period."
24 Then we go on to paragraph 549: "There is also no evidence that
25 Osman Osmanovic, Ramiz Becirovic, Hamed Salihovic, or anyone else ever
1 kept the accused informed of the state of the detained Serbs, nor is
2 there evidence that the accused inquired or sought reports on this matter
3 from anyone."
4 So the Trial Chamber's conclusion on actual knowledge on the part
5 of Oric of mistreatment of detainees in the second period, and as I say,
6 which particularly concerns the building where the five murders occurred,
7 is that he did not have actual knowledge; or at least there's not direct
8 evidence of any knowledge. Let's put it that way.
9 So then we look at imputed knowledge. So one aspect of that is
10 the Halilovic incident, and we've looked at that sufficiently; but, of
11 course, the main point for us is that that related to a person who was
12 dead by January 1993 and whom we say had been the problem and had been
13 reasonably considered to be the end of the problem.
14 But so then after that, the Chamber says the issue of detained
15 Serbs "appears to have disappeared from the accused's agenda," and that's
16 paragraph 551. But they, nonetheless, fix him with imputed knowledge on
17 the basis of several factors, and we say the reasoning is patently
19 Paragraph 552, this is their first reason: "The accused could
20 not but know that Zulfo Tursunovic, his deputy, who had been appointed
21 member of the summary court-martial, was visiting the Serb detainees at
22 the Srebrenica police station and at the building."
23 Now, that conflicts completely, does it not, with what the
24 Trial Chamber just said at paragraph 548 that: "There is no evidence
25 that he," Tursunovic, "shared information about his visits to the
1 detainees with Oric."
2 We say that's a patent flaw in the reasoning on a key issue. The
3 reference to a summary court-martial is also misconceived, and we say
4 that in light of the evidence the Prosecution witness Omerovic, that's
5 T8456, who was categorical that summary court-martial never existed,
6 never functioned. But that aside, it's also in flat contradiction with
7 the Trial Chamber's other findings in relation to Tursunovic.
8 At paragraph 165 the Trial Chamber found that he was "fiercely
9 independent." And at paragraphs 523 and 527, in essence, they found that
10 he wasn't Oric's subordinate, and yet there they describe him as Oric's
11 deputy and evidently attach great importance to that fact.
12 They then look at Oric's interview, and that's paragraph 553.
13 And at paragraph 554 - I should say at Oric's interview, he said he knew
14 nothing about this building. They say, at 554, they do not find credible
15 Oric's "affirmation" that he was unaware that Serbs were being detained.
16 As an aside, we say, anyway that affirmation is wrong. He didn't give
17 evidence; that's just an exhibit.
18 But why not? Why did not find that credible? Well, one, because
19 of the visits by Tursunovic, which as we already said can't stand in our
20 submission; secondly, because fighters returning from the front lines
21 seem to know about this building because they would get off a truck and
22 then beat the detainees according to Ivanovic. But we don't know and the
23 Chamber didn't know who those people were getting off the trucks. There
24 was no evidence. One doesn't want to speculate, but maybe they were
25 friends of one of the guards, and that's why they knew. But it certainly
1 is not a reasonable basis to impute knowledge of such an important thing
2 to Oric.
3 Then they rely on the fact that the use of the building was
4 discussed at a joint meeting of the War Presidency and the staff; and
5 again, for us, in fact it's a joint meeting. The War Presidency involved
6 is also very important. But if we look at that, that's in P84, and they
7 pin it on five words "ensure premises for a prison," P84. But note that
8 that meeting is on the 23rd of December, 1992, and the building wasn't
9 even in use until after Skelani which was 16 January 1993.
10 So, in any event, it was a discussion prospectively about where a
11 prison premises should be found. So to impute on that basis that Oric
12 knew of Serb detainees at that specific location behind the court
13 building, much less that he knew of mistreatment there, we say is
14 completely unfounded.
15 So then again, at paragraph 555, the Trial Chamber leave open the
16 possibility and that Oric didn't know that the building was being used.
17 So we say that shows that the Trial Chamber was not satisfied beyond a
18 reasonable doubt that Oric knew about the building. So then the
19 Trial Chamber falls back on the statement that, well, in his interview
20 he, was aware of people being captured, Serbs being captured. They've
21 gone on to say whether he knew of the specific building was "of secondary
23 But then that means that knowing that Serbs have been captured,
24 which presumably happens in all wars all the time, enemy soldiers are
25 captured, fixes Oric with notice so that wherever Serb detainees are
1 kept, even in a private house - and we had evidence in our case of Serb
2 detainees being kept in private houses, in fact being very well
3 treated - but if they were mistreated in that private house, that's
4 enough according to the Trial Chamber. So from that point on he's
5 responsible for any mistreatment of any Serb detainee anywhere in
6 Srebrenica, I dare say not to Srebrenica town but Srebrenica
7 municipality. We say that can't be right. So that's why we say that
8 that's an error.
9 So we then move on to Krdzic. What did Krdzic know or should
10 have known? There the Trial Chamber was categorical that Krdzic was not
11 at either location, and that's at paragraph 496 of the judgement. They
12 refer to his conspicuous absence; but more particularly at footnote 1385,
13 they say: "No witness and no other evidence indicate that Atif Krdzic
14 was ever present in either of the two detention facilities."
15 So that's absolutely categorical; and, of course, you know we say
16 the reason why he was [sic] there is because it was nothing to do with
17 him. But even if you think it was something to do with him, we then go
18 on to see what the Trial Chamber reasoned from that premise.
19 So there might be an error in the transcript. Yes. The reason
20 why he was not there was because it was nothing to do with him.
21 Even if you accept that it was something to do with him, if we
22 examine the Chamber's reasoning from that premise, they said: "There is
23 no reason why Atif Krdzic should not have become aware," of this murder
24 and mistreatment, "except for wilful blindness."
25 So, in our submission, that passage is key. Why did they fasten
1 on this idea of wilful blindness and what does it mean and what is it
2 relevance legally?
3 In fact, it's a complete leap in the in the dark by the
4 Trial Chamber, isn't it, to say, well, maybe he didn't know but we assume
5 that he either knew or was wilfully blind. Well, you can only be
6 wilfully blind if you actually know something. It's not negligence,
7 wilful blindness, and there are a couple of useful quotations which we
8 actually identified just this morning. One is the case of - perhaps it
9 doesn't matter what case it is - but it is Roper against Taylor Central
10 Garages. As Lord Devlin --
11 THE INTERPRETER: Thank you for reading slowly when you give
13 MR. JONES: Yes, my apologies.
14 I'll just read the quote which is the most important thing.
15 "There is a vast distinction between a state of mind which
16 consists of deliberately refraining from making inquiries, the result of
17 which a person does not care to have and a state of mind which is merely
18 neglecting to make such inquiries as a reasonable and prudent person
19 would make."
20 The decision goes on to say: "The failure to make such inquiries
21 as a reasonable person would have made is not equivalent to knowledge."
22 This is from Giorgianni versus the Queen, Australian high court
24 Then Glanville Williams had this to say about wilful blindness.
25 This was cited in Caldwell, a case on recklessness, in the UK House of
2 "A person cannot, in any intelligible meaning of the words, close
3 his mind toe a risk unless he first realizes that there is a risk; and if
4 he realizes that there is a risk, that is the end of the matter."
5 So the gist to all that really is that if Krdzic had information,
6 then fine, he's already arguably liable under 7(3) if he had specific
7 information in his possession of crimes; not even arguably liable, he
8 would be liable if the other conditions were met.
9 But if Krdzic negligently - I emphasize that, negligently -
10 didn't go to either of the prisons, that's not enough for him to be
11 liable on any wilful blindness theory. It's not enough for him to be
12 liable, really, on any theory of criminal liability, and not even for the
13 aiding and abetting theory but for the Prosecution, because that requires
14 an awareness of probability the crimes would occur, subjective awareness,
15 and mere negligence, not doing what a reasonable and prudent person would
16 do. It would not suffice.
17 So, in our submission, the reliance on wilful blindness on the
18 part of Krdzic also falls flat. Then even in its reasoning towards the
19 conclusion that Krdzic had awareness, the Trial Chamber falls into error,
20 in fact -- I need to correct myself. That was it for the Trial Chamber's
21 reasoning. They didn't actually explain at all why they considered, if
22 they considered, Krdzic was aware of a risk.
23 The Prosecution now has a theory about why Krdzic should have
24 known. One is based on what everyone in Srebrenica allegedly knew about
25 the risk to the detainees. Well, I don't recall any witnesses being
1 asked what everyone knew; and if the question has been requested, it
2 would probably be deemed impermissible because who can say what everyone
3 knew. You saw the confusion with Guster, who was a refugee in
4 Srebrenica. When he saw a Serb detainee being evacuated, he was
5 indignant that they weren't being evacuated too, because he thought it
6 was another Muslim. So who knows what everyone knew in the chaos of
7 Srebrenica at the time.
8 As I pointed out yesterday, Krdzic was actually not even in
9 Srebrenica town until late 1992, and the minutes of meetings which also
10 the Prosecution refers to doesn't know a discussion of mistreatment of
11 detainees. And, as I think I alluded to yesterday, it's pure speculation
12 to say that he must have known why he was replacing Halilovic and that
13 can't substitute for evidence.
14 Now, in the short time, I want to deal with the Prosecution's
15 submissions of this morning. Firstly, the submissions by my learned
16 friend Ms. Baig in terms of notice in the indictment of the case which we
17 had to meet. We say firstly that the Trial Chamber, yes, it concluded
18 that the military police in the second period was subordinated to Oric,
19 but not that the guards were and not that civilian or potentially
20 civilian guards were nonetheless subordinated to Oric, and that's why
21 it's new -- a new alternative theory.
22 She refers to the fact that in the Defence closing brief we
23 covered all sorts of possible bases of liability. As I referred to
24 yesterday, that's a belt and braces approach. It's unwise not to deal
25 with every possible permutation of liability. But recall that we were
1 very clear in the Defence brief that it wasn't pleaded, that these other
2 bases weren't pleaded, and you'll see that in 494 onwards of our closing
3 brief and paragraphs 507 and especially 508. So we always said this was
4 not pleaded, but in any event and we deal with the rest of it.
5 So our submission is that the Prosecution did not clearly plead
6 in the indictment that Oric was the superior of these others who were
7 mentioned in the indictment and in the pre-trial brief, which does refer
8 to others, but it wasn't pleaded that Oric was the superior of those
9 others and that he was the superior of, as I say, potentially municipal
10 civilian guards.
11 What also is new is the theory which the Prosecution has as to
12 why Oric would be the superior, and I dealt with it briefly yesterday,
13 the idea that he wouldn't put valuable prisoners in the hands of a group
14 of people over whom he had no criminal. I pointed out the fallacy of
15 that, which is that those valuable prisoners were killed. Also, in light
16 of P45, where the War Presidency is offering to exchange these people,
17 they're not Oric's prisoners; if anything, they were the War Presidency's
19 I turn to now to Ms. Dahl. In our submission, she was really
20 trying to use rather emotive descriptions of mistreatment in order to, I
21 suppose, to dispose you to decide the appeal against us, but we didn't
22 challenge that these people were beaten. And if you see, we were very
23 sympathetic whenever the victims testified and made clear that we weren't
24 challenging that they were beaten and suffered terribly. But it's not a
25 question of bloody faces. It's a question of what Oric knew, who the
1 guards were under, and whether or not he took necessary and reasonable
3 It was suggested that any soldiers who were seen at the SUP
4 mistreating soldiers were under Oric, and we pointed out that the
5 Trial Chamber found that 20 to 30 fighters from Potocari were under
6 Oric's control. So where's the evidence that any of those soldiers of
7 the SUP were one of those 20 to 30 people from Potocari and that it
8 simply conflicts with the Chamber's own findings.
9 And as far as Kukic is concerned, it's footnote 1500 in the
10 judgement, where the Trial Chamber said, Well, in any event, even if he
11 didn't know from seeing detainees, he knew of the killing of Kukic.
12 Well, there the Trial Chamber conflated two things. The evidence is that
13 Oric knew of Kukic having a heart attack, and separately that he knew or
14 suspected that Halilovic had killed someone. The Chamber conflated those
15 two separate issues.
16 I turn briefly to the submissions of my learned friend
17 Mr. Rogers. He was portraying our position as the War Presidency
18 commanding the military police, but it's more a nuance than that. As
19 we've always said, it's that the military police under Halilovic and the
20 civilian police under Jusufovic were both under the umbrella of the SJB,
21 which was in turn under the War Presidency. That exact command hierarchy
22 is even in -- is in P84 which is one of their most trusted exhibits.
23 It was suggested that Djilovic was disbelieved by the
24 Trial Chamber for various reasons. Well, the Trial Chamber didn't give
25 any of those reasons in the judgement. It didn't say, We find Djilovic
1 uncredit-worthy because she made a mistake about Halilovic or because she
2 wasn't at all meetings. That's part of the problem of this judgement,
3 there are no clear credibility findings. In any event, in terms of the
4 mistake about Halilovic, in fact, it reflects, does it not, that he was
5 at the War Presidency so often that she assumed he was a member of the
6 War Presidency.
7 She was the technical secretary to the War Presidency, so she was
8 very much absolutely in a position to know what was happening there; it
9 was her duty. Sacirovic was not some outsider. He was on the same
10 floor, practically next to the office of the president of the War
12 As far as the references to -- I'll take that as an indication
13 that I have two minutes remaining and nothing else.
14 The references to the transcript we can disagree and go back and
15 forth between Mr. Rogers and myself about what was actually said and what
16 was not said, and I think really the only suggestion we can make is that
17 obviously the Chamber review those transcripts carefully and it will be
18 seen what was said.
19 But D247, yes, it's 28th of February, 1994, but they're adopting
20 the report for the whole prior year, and Meholjic testified to that at
21 T6999. There are many points I would like to make about the exhibits,
22 the Prosecution exhibits. We've dealt with them, I think, fully in our
23 appeals filing; and given I only have a minute or two left, I would just
24 like to say again Krnojelac -- well, actually, my learned friend
25 Ms. Jarvis referred to layering and that layering can show as part of
1 being a commander. But we're not complaining of vertical layering; it's
2 a vertical layering and then horizontal, horizontal, horizontal,
3 horizontal. 7(3) vertically, but then aiding and abetting by omission,
4 aiding and abetting. That's the horizontal layering which we say is a
5 daisy chain.
6 And, finally, prison camp cases are fundamentally different from
7 this case. Krnojelac was a prison warden in an institution, a prison.
8 No command hierarchy has been shown over this prison. It's never been
9 pleaded or much less proved that Oric was anything resembling a prison
10 warden, and that too is totally new.
11 Thank you, unless I can assist you further.
12 JUDGE SCHOMBURG: There are no additional questions.
13 This concludes the submissions of the parties on appeal. A
14 judgement will be rendered in due course.
15 And, Mr. Jones, at that time, you will see who can interpret my
16 signal for the two minutes as a sign of victory, but it's on truth and
17 not on winning a case.
18 I want to thank the parties for their submissions and all their
19 efforts to direct us to the transcripts and the judgement in a very
20 precise way, both orally and in writing. I want to thank everybody
21 having prepared this hearing and having assisted us during the entire
22 hearing. In particular, gratitude goes to the interpreters who had
23 during the last two days some hard times, but we, only with their
24 assistance, were able to follow the proceedings and as it was also
25 translated into B/C/S and into French. Thank you for this huge effort.
1 The appeals hearing stands adjourned. Thank you.
2 --- Whereupon the Appeals Hearing
3 adjourned at 11.25 a.m.