1 Wednesday, 30 January 2008
2 [Open session]
3 [Rule 98 bis]
4 [The accused entered court]
5 --- On resuming at 2.15 p.m.
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you please
7 call the case.
8 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon
9 everyone in and around the courtroom. This is case number IT-04-74-T, the
10 Prosecutor versus Prlic et al. Thank you, Your Honours.
11 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.
12 This Wednesday, 30 January 2008, I greet everybody in this room,
13 the counsel, accused and all the people who are assisting us.
14 Today we have to finish the 98 bis procedure, but before that I
15 want to give the floor to Mr. Scott who had asked for the floor.
16 MR. SCOTT: Sorry, Your Honour. My assistant has -- apologies,
17 Your Honour. I don't think so. I don't think so, Your Honour. I'm
19 JUDGE ANTONETTI: [Interpretation] All right. Thank you very much.
20 MR. SCOTT: But if you want me to say something, give me a moment.
21 I'll think of something. Thank you.
22 JUDGE ANTONETTI: [Interpretation] All right. Very well. So we
23 have to finish the 98 bis procedure and the Defence phase of course.
24 Everybody understands it is the Defence who has today and Monday it will
25 be the Prosecution who will take the floor.
1 So Mr. Sahota is ready, and I'm giving him the floor. He's in
2 front of the lectern, and he is now going to be able to present his
3 argument for Mr. Pusic.
4 MR. SAHOTA: Thank you, Mr. President, Your Honours. It is
5 generally the advocate's duty to construe the evidence in the light most
6 favourable to his client. In the course of this 98 bis submission, I
7 recognise that I must resist this temptation as my duty is to the
8 contrary. In fact, I do not intend to refer to the Prosecution's evidence
9 at any length in the course of my submissions, and I have no cause to do
10 so because my submission is that there is no evidence that has been
11 presented to date by the Prosecution that a reasonable trier of fact could
12 find capable of supporting a conviction in relation to any of the
13 following counts on the indictment.
14 The first count, count 4, rape; count 5, inhuman treatment, sexual
15 assault; count 19, extensive destruction of property not justified by
16 military necessity and carried out unlawfully and wantonly; count 20
17 wanton destruction of cities, towns or villages, or devastation not
18 justified by military necessity; count 21, destruction or wilful damage
19 done to institutions dedicated to religion or education; count 22,
20 appropriation of property not justified by military necessity and carried
21 out unlawfully and wantonly; count 23, plunder of private -- plunder of
22 private or public property; count 24, unlawful attack on civilians
23 (Mostar); count 25, the unlawful infliction of terror on civilians
24 (Mostar); and finally count 26, cruel treatment (Mostar siege).
25 Your Honours, in relation to each of the counts that I've just
1 identified, we submit that no evidence has been presented with regard to
2 any of the possible modes of liability pleaded by the Prosecution in the
3 indictment. Your Honours, we say that because we recognise that the
4 Tribunal's jurisprudence requires only that there need be evidence capable
5 of supporting a conviction in regard to any one of the multiple forms of
6 criminal responsibility for a Rule 98 bis motion to fail.
7 Your Honours, I will return to consider each individual count in
8 due course in part 2 of my submissions where I will look at the
9 constitutive elements of each allegation in turn. Our submission will
10 have two parts, and in the first part we will consider all the possible
11 modes of liability in relation to all the crimes charged in the indictment
13 Before I move on to consider the modes of liability relied on by
14 the Prosecution, I would like to make this important observation in
15 relation to the counts that are not challenged by the Defence by way of
16 this Rule 98 bis application. And I would like to clarify that the fact
17 that we do not challenge many of the counts in the indictment should not
18 be taken to mean that the Defence accept the Prosecution have adduced any
19 credible or reliable evidence in connection to those counts or any other
20 counts on the indictment. In other words, we the Defence for Mr. Pusic
21 are not making any admissions to the effect the Prosecution have proved
22 any element of their case beyond reasonable doubt.
23 Your Honours, I do not intend to develop that point any further
24 now. I recognise that the issue -- or that issue is most appropriately
25 addressed in our closing arguments, and I'm also confident that the
1 Prosecution also recognise that this Rule 98 bis procedure is not a forum
2 for either party to advance their closing arguments.
3 Having said that, I would like to move on to the first part of my
4 application and outline my submissions as to the various modes of
5 liability that are pleaded by the Prosecution.
6 Your Honours, the Prosecution accumulatively charges Mr. Pusic for
7 the crimes alleged in counts 4, 5, 19, 20, 21, 22, 23, 24, 25, and 26
8 under what we identify as three different modes of liability. As there is
9 no attempt by the Prosecution in the indictment to clarify which of these
10 possible modes of liability specifically refer to my client, Mr. Pusic, I
11 will assume that they intend, the Prosecution intend, to rely on every
12 possible mode of liability open to them. The three modes of liability
13 that we have identified are firstly responsibility for knowingly and
14 wilfully participating in a joint criminal enterprise in telling the
15 accused's individual criminal responsibility under Article 7(1) of the
16 Statute of the Tribunal.
17 The second mode of liability is also under Article 7(1) of the
18 Statute of the Tribunal for having planned, instigated, ordered or
19 otherwise aided and abetted in the planning, preparation, or execution of
20 the crimes charged in the indictment.
21 The next mode of liability, Article 7(3) of the Statute for crimes
22 committed by the accused's subordinates whilst he was holding positions of
23 superior authority.
24 I will now turn to address each of these modes of liability in
25 turn beginning with the theory of joint criminal enterprise under Article
1 7(1). Your Honours, I may also use the term "common plan," and the terms
2 "joint criminal enterprise" and "common plan" may be used interchangeably
3 during the course of my submissions.
4 Your Honours, the Trial Chamber will of course be aware that the
5 Prosecution have pleaded all three categories or types of joint criminal
6 enterprise defined in the Tadic appeals judgement in the indictment. We
7 are not entirely sure how type two JCE applies to this case as it normally
8 relates to a system of ill-treatment and the joint criminal enterprise in
9 this particular case is phrased in such sweeping terms that at first blush
10 type two liability does not seem appropriate but that is not an argument
11 that I do not wish to advance in the course of these submissions.
12 The Tadic appeals judgement which I'm sure that you are familiar
13 with at paragraph 227 established three requirements, legal requirements,
14 actus reus or objective elements that must be proved in order to establish
15 liability under any type of common plan or joint criminal enterprise be
16 that type one, type two, or type three. The requirements are firstly, the
17 existence of a plurality of persons. They need not be organised in a
18 military, political, or administrative structure. Secondly, the existence
19 of a common plan design or purpose which amounts to or involves the
20 commission of a crime provided for in the Statute. There is no necessity
21 for this plan, design, or purpose to have been previously been arranged or
22 formulated. The common plan or purpose may materialise extemporaneously
23 and be inferred from the fact that a plurality of acts in unison to put
24 into effect a joint criminal enterprise.
25 The third requirement is the participation of the accused in the
1 common design involving the perpetration of one of the crimes provided for
2 in the Statute. This participation need not involve the commission of a
3 specific crime under one of those provisions, but may take the form of
4 assistance in or contribution to the execution of the common plan or
6 Your Honours, our submissions rest on the second limb of this
7 test. We say that no evidence has been presented by the Prosecution from
8 which a reasonable trier of fact could conclude that Mr. Pusic was party
9 to or a member of the common plan or joint criminal enterprise. At this
10 point I would emphasise that the Defence for Mr. Pusic does not accept
11 that the Prosecution have adduced any credible or reliable evidence that a
12 common plan or joint criminal enterprise involving any of the accused ever
13 existed. However, for the purpose of this Rule 98 bis submission, our
14 submission is that if for the sake of argument a common plan can be shown
15 to exist, no evidence has been presented that Mr. Pusic was party to or a
16 member of that common design.
17 Your Honours, I would now like to turn to the indictment and to
18 paragraphs 15 to 17 to briefly examine how the Prosecution define the
19 objectives of the joint criminal enterprise and what, if any, explanation
20 they provide to establish Mr. Pusic's liability for membership within the
21 common plan.
22 I don't intend to read paragraphs 15 to 17 verbatim. I'm sure the
23 contents are firmly embedded in everyone's minds. I would note that the
24 common plan or joint criminal enterprise in this case has been defined in
25 extraordinarily broad terms. The temporal scope is that the common plan
1 is said to begin before the 18th -- on or before the 18th of November,
2 1991, and to extend to about April 1994. That is the language used by the
3 Prosecution. The objectives of the common plan are twofold, and I would
4 refer to the objectives as the two limbs of the common plan.
5 The first limb, to summarise, the objective is to ethnically
6 cleanse parts of Bosnia of Muslims and non-Croats. The second limb is to
7 annex those areas to the Republic of Croatia, or to create a new Greater
8 Croatian Republic.
9 Your Honours, we take the view that the Prosecution must produce
10 evidence to support both limbs of this formula, and our first submission
11 is that no evidence, direct or indirect, has been presented that proves
12 that any of the accused, not just Mr. Pusic, any of the accused were party
13 to a joint criminal enterprise that had that particular objective,
14 annexation to the Republic of Croatia or the creation of a Greater
16 Your Honours, paragraphs 15 and 16, the Prosecution then set out
17 in detail the individuals they believe to be participants in this common
18 plan, and in addition to the accused, this list is wide-ranging, and it
19 includes Franjo Tudjman, the former president of the Republic of Croatia,
20 together with his minister of defence, senior generals, and Mate Boban the
21 president of the Croatian Community. Furthermore, included in the list of
22 participants is any individual, we submit, potentially working within the
23 civilian or military administration in Herceg-Bosna. That includes any
24 individual working within the armed forces, security, and intelligence
25 sources, not just in Herceg-Bosna but also in the Republic of Croatia.
1 Your Honours, I'm not about to proceed to read verbatim the
2 contents of paragraph 16. It's quite clear that the scope of the joint
3 criminal enterprise in terms of the list of participants is wide-ranging.
4 At paragraph 17 the Prosecution then proceed at length to set out
5 the manner in which each of the accused is said or alleged to have
6 participated in this common plan. We can, in my submission, glean one
7 very important detail from the indictment at paragraph 17, and that is the
8 stipulation in the fifth sentence that all the accused participated as
9 leaders of the joint criminal enterprise or common plan, and that is a
10 point that I would return to in due course.
11 My submission is that the Prosecution's summary of the ambit of
12 the JCE, paragraphs 15 to 17, does not include any clear or concrete
13 explanation as to how the Prosecution intend to prove the common plan
14 arose and how they intend to prove that the accused became party to it or
15 members of it. In particular, at no point in the indictment do the
16 Prosecution specify whether the common plan is express or whether it is to
17 be inferred from the actions of the accused.
18 I'd like to move on from the indictment now as I want to consider
19 whether there has been any direct or indirect evidence, documentary or
20 testimonial, that has been presented to date by the Prosecution that is
21 capable of proving that Mr. Pusic was party to or a member this alleged
22 common plan or joint criminal enterprise.
23 As regards direct evidence, our submissions are straightforward.
24 We say that there has been no direct evidence presented from which the
25 Trial Chamber could find that Mr. Pusic was party to or a member of the
1 common plan or joint criminal enterprise.
2 What then of inferences, inferences that could be drawn from
3 indirect evidence? Our position is the same. We say there is no indirect
4 evidence from which reasonable inferences could be drawn that Mr. Pusic
5 was a member or party to the joint criminal enterprise or common plan.
6 If in the course of the Prosecution's reply we are to be asked to
7 draw inferences from indirect circumstantial evidence, then we would make
8 the following three submissions: Firstly, we remind the Chamber of the
9 ruling in the case of Galic that findings at trial based on circumstantial
10 evidence must be the only reasonable conclusion available from that
12 Secondly, and this point relates to the issue of inference that
13 can be drawn from evidence of participation when defining eligibility for
14 membership of the common plan or joint criminal enterprise. At this
15 juncture I would ask the Trial Chamber to note the last sentence of the
16 Tadic judgement at paragraph 227, subsection (ii). "There is no necessity
17 for this plan, design or purpose to have been previously arranged or
18 formulated. A common plan or purpose may materialise extemporaneously and
19 be inferred from the fact that a plurality of persons acts in unison to
20 put into effect a joint criminal enterprise."
21 Your Honours, I would like to develop my submission by referring
22 you to the Brdjanin appeals judgement at paragraph 428. Your Honours, we
23 accept that the Appeals Chamber in Brdjanin chose not to prescribe any
24 formula for defining liability for membership of a joint criminal
25 enterprise and has clearly ruled that joint criminal enterprise or JCE
1 theory applies to large-scale cases as well as small-scale cases. Your
2 Honours, we also acknowledge that the Appeals Chamber further set no
3 formal guidelines or requirements on the quantum of contribution that an
4 individual must make to a particular JCE to be held liable for all crimes
5 committed within its purview.
6 Your Honours, we also recognise that it follows, given how that --
7 given how JCE doctrine is currently formulated and assuming that the
8 Prosecution seeks to maximise its chances of conviction, it follows that
9 the broader, the canvas upon which the JCE is alleged, the more likely it
10 is that evidence can be adduced of an individual making some contribution
11 to its ultimate purpose. Our submission, however, is that the Tribunal's
12 jurisprudence does not has not reached the point where to justify the
13 inclusion of the individual as a member of the JCE, all the Prosecution
14 have to do is to point to some contribution, however small, made to the
15 common plan or JCE by that individual.
16 The Appeals Chamber in Brdjanin has also after all made it clear
17 that JCE theory is not, and I quote, "An open-ended that permits
18 convictions based on guilt by association," and that quote can be found at
19 paragraph 428.
20 I would also invite the Trial Chamber to contrast the declaration
21 made by Her Honour Judge Van den Wyngaert at page 164 of the Brdjanin
22 Appeals Chamber decision to contrast that declaration with the dissenting
23 opinion of His Honour Judge Shahabuddeen, which can be found at page 170
24 of the same judgement. The issue at hand, the question that was
25 addressed, is whether the principal perpetrators of a crime needed to be
1 members of the JCE before an accused could be held responsible for crimes
2 committed by those perpetrators.
3 His Honour Judge Shahabuddeen took the position that a principal
4 perpetrator must be a member of the JCE for another member of the JCE to
5 incur criminal liability for crimes committed by that perpetrator and went
6 on to define a very loose standard of membership, stating that merely by
7 perpetrating a crime and acquiescing to the JCE or common plan a
8 non-member could be assumed to then become a member of the JCE.
9 The Appeals Chamber chose not to adopt this formula. Judge Van
10 den Wyngaert felt compelled to issue a declaration clarifying her opinion,
11 and you will note that she was particularly skeptical of the low threshold
12 of membership for the JCE that was postulated by her colleague. Her main
13 concern was that this would cast the net too wide and bring low-level
14 participants within the scope of the JCE.
15 Your Honours, this debate has little bearing on the binding ratio
16 of the Appeals Chamber's decision. It is however in my submission of more
17 than academic interest on this case as it does reflect a genuine concern
18 on the part of certain members of the Appeals Chamber as to potentially
19 overly broad application of JCE theory; a situation that we say is the
20 case here and which underpins all our submissions.
21 We therefore ask you to read the passages carefully that we have
22 identified and make the following observation that the Appeals Chamber
23 considered and declined to make any finding to the effect that, and I
24 quote from Judge van den Wyngaert's declaration at page 164 of the
25 Brdjanin Appeals Chamber judgement, that "By perpetrating a crime within
1 the common purpose and by acquiescing to the JCE, somebody who is outside
2 the JCE may be assumed to become a member of it."
3 Your Honours, I put my case no more strongly than that. And
4 should it arise that in the course of the Prosecution's reply the Trial
5 Chamber is invited to draw sweeping and broad-brush inferences from the
6 testimonial and documentary evidence that has been presented thus far, we
7 ask the Trial Chamber to keep in mind the passages that we have
9 Your Honours, my third submission as we -- as we are dealing with
10 this topic of inferences to be drawn to establish liability for membership
11 to the common plan or JCE rests on one of the potential arguments that we
12 anticipate the Prosecution may choose to rely on. This argument may take
13 this form, that by virtue of Mr. Pusic's posts and responsibilities and
14 the nature of his participation in the JCE, and you will note from
15 paragraph 17, the Prosecution make it absolutely clear that he is said to
16 have participated as a leader. By virtue of that it is reasonable to
17 infer that Mr. Pusic was party to or a member of the common plan or JCE or
18 perhaps there may be some reliance on some variation of this theme.
19 We take issue with any such assertion. At this point I'm just
20 trying to focus briefly on the label used by the Prosecution to describe
21 the capacity in which all the members of the alleged JCE are said to have
22 participated in the common plan. I remind you once again of the words in
23 paragraph 17: All the accused are said to have participated as leaders in
24 the joint criminal enterprise or common plan.
25 Your Honours, in our submission one of the defining
1 characteristics of a leader is that he or she must have some
2 decision-making authority. Clearly defined authority either de jure or de
3 facto or both, and what the Prosecution's final witness, Witness DZ, made
4 very clear was that his impression was based on his extensive contact with
5 Mr. Pusic, his impression was that Mr. Pusic had no unilateral
6 decision-making authority.
7 You may recall that Witness DZ used the phrase "lacked
8 competence." He used that phrase to describe how some of the ABiH
9 prisoner exchange negotiators lacked the authority to make decisions.
10 Your Honours, this same expression applies to Mr. Pusic, and, Your
11 Honours, we remind you that Witness DZ made these assertions when he was
12 being led by Mr. Scott in his evidence in chief. We are therefore not
13 asking the Chamber to question the credibility or reliability of his
14 evidence. We are simply asking you to take it at face value at its
15 highest. And our submission is that Witness DZ's evidence taken at its
16 highest cannot be interpreted to support the conclusion that Mr. Pusic
17 held a leadership position and that it cannot follow from that conclusion
18 that the inference that he was a party to or a member of the common plan
19 can be drawn.
20 Your Honours, the evidence of Witness DZ is critical, we suggest,
21 because it casts a shadow over the entire Prosecution case against
22 Mr. Pusic. Witness DZ, after all, had regular and sustained contact with
23 him, more frequent and extensive contact than any other international
24 witness in this case. Witness DZ was closely involved in most of the
25 relevant negotiations of prisoner exchange, as well as other aspects of
1 Mr. Pusic's duties.
2 Your Honours, I will now outline my last submission under this
3 general heading of JCE liability, and this submission relates to
4 Mr. Pusic's potential liability as a member of the common plan under the
5 third category of JCE or JCE type three, also commonly known as extended
6 JCE. This submission relates to Mr. Pusic's liability for acts outside
7 the common design even if they are committed by others, as long as those
8 crimes are an actual and foreseeable consequence of the implementation of
9 the common plan.
10 As we have seen, the objectives of the common plan or JCE are
11 defined in the indictment and have, as we choose to describe, two limbs.
12 The first limb, ethnic cleansing of parts of Bosnia of Muslims and
13 non-Croats. Second limb, the annexation of those areas to the Republic of
14 Croatia or the intention to create a new Greater Croatian republic.
15 Your Honours, I would now like to ask you to turn to paragraph 230
16 of the indictment. I would ask the Trial Chamber to note that the
17 Prosecution have decided consciously not to charge Mr. Pusic in regard to
18 events in Prozor in October 1992 and Gornji Vakuf municipality in January
20 Your Honours, it must be plain to everyone that these events must,
21 by definition, fall within the scope of the common plan or JCE that we
22 have just considered, and that if we apply the theory behind JCE type
23 three or the extended JCE, if we apply that theory, then in principle
24 Mr. Pusic should be liable for any events that took place in those
25 municipalities at the period stated, and that follows, Your Honours, from
1 a quote that I will refer you to from the Brdjanin Appeals Chamber ruling
2 at paragraph 423, and I quote: "Liability for participation in a criminal
3 plan is as wide as the plan itself, even if the plan amounts to a
4 nation-wide system of justice and cruelty."
5 We therefore submit that this exclusion clause, at paragraph 230,
6 is an inconsistency which wholly undermines the Prosecution's case theory
7 that Mr. Pusic was party to the common plan or JCE and this inconsistency
8 lends further weight to our submissions because it follows that if Mr.
9 Pusic was truly a party to this common plan, then by definition no such
10 exception to his liability could possibly be justified.
11 Your Honours, I will now move forward to consider the second mode
12 of liability, which is individual criminal responsibility pursuant to
13 Article 7(1) of the Statute. In the interests of brevity, I do not
14 propose to address the particulars of every mode of liability under
15 Article 7(1). In summary, it is the Defence for Mr. Pusic's submission
16 that no evidence has been adduced by the Prosecution that the accused
17 Mr. Pusic planned, instigated, ordered and/or committed or aided and
18 abetted the commission of any of the crimes set out in counts 4, 5, 19,
19 20, 21, 22, 23, 24, 25, and 26 of the indictment.
20 Your Honours, this submission applies whether Mr. Pusic is charged
21 on the basis of his own participation, his omission or failure to act
22 where there is a duty to do so as a co-perpetrator, indirect perpetrator,
23 or indirect co-perpetrator, or on the basis of his liability for aiding
24 and abetting.
25 The third mode of liability is Article 7(3), command
1 responsibility. The Tribunal's jurisprudence has established a
2 three-prong test for criminal liability pursuant to Article 7(3). The
3 first requirement is the existence of a superior/subordinate relationship
4 between the commander or the accused and the perpetrator of the crime.
5 The second is that the accused knew or had reason to know that the crime
6 was about to be or had been committed, and finally that the accused failed
7 to take the necessary and reasonable measures to prevent the crime or
8 punish the perpetrator thereof.
9 Your Honours, we submit that the Prosecution has failed to meet
10 its burden with regard to all the elements that are required to prove
11 liability under Article 7(3), and in particular, in particular we say that
12 the Prosecution have failed to prove the existence of any
13 superior/subordinate relationship between the accused and any of the
14 offenders who committed any of the specific acts alleged in any of the
15 substantive counts that we have identified.
16 Your Honours, in Part 2 of my submissions I will now consider each
17 count in turn, examining the particulars of each count, the particulars as
18 set out the relevant paragraphs of the indictment.
19 I would like the Trial Chamber to consider counts 4 and 5 together
20 as the particulars for both allegations are similar. Count 4 is the
21 allegation of rape, a crime against humanity, punishable under the Statute
22 Articles 5(g), 7(1) and 7(3) as alleged in paragraphs 15, 17, 38, 57, 59,
23 99, 109, 141, 211, and 213.
24 Count 5 is an allegation of inhuman treatment, sexual assault,
25 contrary to Article 2(b) and a grave breach of the Geneva Conventions of
2 Your Honours, I won't for the purpose of the following counts
3 repeat the entire particulars of the offence because I am going to turn to
4 each paragraph in turn. However, before I do so I would also like to make
5 clear that in the course of these submissions we make no admission as to
6 whether any of these crimes actually took place or whether any credible or
7 reliable evidence has been adduced in support of them.
8 Your Honours, in relation to counts 4 and 5, as regards paragraphs
9 38 and 39, we have no comment.
10 Paragraph 55 of the indictment only refers to count 5, and that is
11 the allegation of inhuman treatment and sexual assault.
12 You will note that the incidents that are set out in paragraphs
13 55, 57, and 59 do fall within the scope of the indictment as far as
14 Mr. Pusic is concerned. Our submission is that no evidence has been
15 presented of any link, direct are indirect, whether adduced by documentary
16 or testimonial material, any link between Mr. Pusic and any of the
17 perpetrators of these crimes.
18 Your Honours, the same submission applies to all the other
19 particulars of these two counts. Paragraphs 99 and 109 deal with events
20 in Mostar municipality --
21 JUDGE TRECHSEL: I'm sorry if I interrupt but I wonder whether
22 there is a certain [Microphone not activated].
23 THE INTERPRETER: Microphone, please.
24 JUDGE TRECHSEL: What you said when you referred to --
25 THE INTERPRETER: Microphone, please.
1 JUDGE TRECHSEL: I'm sorry. Did you get anything of what I said?
2 I thought that I detected a certain contradiction. It's certainly my
3 mistake, but you will set it right. You have pointed to paragraph 230,
4 according to which Mr. Pusic is not charged with any crimes in connection
5 with events in Prozor municipality. Now you have referred to paragraphs
6 55 and this in vicinity which are Prozor. So is that not out from the
8 MR. SAHOTA: Well, Your Honour, if you look again at paragraph 230
9 you will find see that the exclusion clause, if I can term it like that,
10 excludes Mr. Pusic from charges in the indictment in connection with the
11 events in Prozor municipality in October 1992 only and that is why I made
12 that reference. The events that are outlined at paragraphs 55, 57, and
13 59 --
14 JUDGE TRECHSEL: Thank you very much. That's most helpful.
15 MR. SAHOTA: Your Honour, I don't propose to necessarily take up
16 the Chamber's time by reciting verbatim the contents of each paragraph. I
17 will, however, refer to the paragraph numbers just for the purposes of
18 clarity and clarifying that our submission remains -- remains that no
19 evidence has been presented of any link, direct or indirect, being --
20 having been established by the Prosecution to connect Mr. Pusic and any of
21 the perpetrators of the crimes that are set out in paragraphs 99 and 109
22 as they pertain to Mostar municipality, in paragraph 141, as that
23 paragraph pertains to Vojno camp. In paragraphs 211 and 213, as those
24 paragraphs pertain to Vares municipality.
25 Your Honours, in our submission the only possible basis to
1 establish Mr. Pusic's criminal liability for these offences is if we rely
2 on the extended JCE or category of type three theory that these crimes
3 occurred as a foreseeable consequence of the implementation of the common
4 plan. We say that JCE theory is not applicable to Mr. Pusic as there is
5 no evidence that he was party to the common design.
6 Your Honours, I also invite you to ponder whether the
7 Prosecution's potential reliance on JCE type three liability or extended
8 JCE liability in this case is really appropriate. And I ask the
9 rhetorical question whether JCE type three liability should really be
10 employed if, as in this case, the Prosecution's evidence taken at its
11 highest does not or is not capable of proving that my client, Mr. Pusic,
12 was a leader of this so-called JCE or common plan.
13 I also ask the Trial Chamber to ponder and consider whether by
14 proceeding in this matter by relying on JCE type three liability the
15 Prosecution is in effect in danger of raising the spectre of guilt by
16 association, and Your Honours will be aware of the Brdjanin Appeals
17 Chamber judgement paragraph 428 and their concerns with regard to that
19 Your Honour, that submission applies to all the counts that I'm
20 now about to address.
21 Turning now to counts 19, 20, and 21. I would deal with those
22 three allegations together because the particulars are once again similar,
23 and I would ask you to assume that each paragraph I refer, each paragraph
24 number, applies to all three counts unless I specifically state otherwise.
25 Count 19 is an allegation of extensive destruction of property not
1 justified by military necessity and carried out unlawfully and wantonly.
2 Count 20 is an allegation of wanton destruction of cities, towns or
3 villages or devastation not justified by military necessity. And count 21
4 is an allegation of destruction or wilful damage done to institutions
5 dedicated to religion or education.
6 Your Honours, we have no comment in relation to paragraph 39.
7 Paragraph 46 applies to Prozor municipality but does not apply to count
8 21. Paragraph 48 also doesn't apply to count 21 and nor does paragraph
9 51. Paragraphs 46 and 48 also don't apply to Mr. Pusic insofar as they
10 pertain to events that took place in October 1992. Paragraph 53 applies
11 to all three counts. Paragraph 66 to 68 do not apply to Mr. Pusic as they
12 pertain to events in January 1993, and those paragraphs relate to events
13 in Gornji Vakuf municipality.
14 The next municipality that we'll deal with is Sovici and Doljani.
15 Paragraph 82 does not apply to count 21. Paragraphs 83 and 84 relate to
16 events in April 1993. Paragraphs 97 and 116 pertain to Mostar
17 municipality, and both of those paragraphs do not pertain to count 21.
18 Paragraph 152 relates to events in Ljubuski municipality and detention
19 centre, specifically to the destruction of a mosque, and that pertains
20 only to count 21.
21 Paragraphs 162, 163, 164, 165, and 166 all relate to Stolac
22 municipality, and paragraphs 163 and 164 do not apply to count 21.
23 Paragraph 177 pertains to Capljina municipality and does not apply
24 to count 21, nor does paragraph 181, but paragraphs 179 and 180 do apply
25 to the same municipality.
1 And finally with -- with regard to counts 19, 20, and 21 is
2 paragraph 211, which pertains to Vares municipality.
3 Your Honour, our submission in relation to all these offences, we
4 haven't outlined the details of each particular of each paragraph because
5 our submissions are identical, and our submissions are that there is no
6 evidence linking the accused Mr. Pusic to any of the allegations that are
7 set out in those paragraphs or particularised therein. No connection has
8 been established between Mr. Pusic and any of the perpetrators of those
10 The only possible liability or basis of liability for Mr. Pusic,
11 we submit, is through the exercise of JCE liability extended category or
12 JCE type three category that these crimes occurred as a foreseeable
13 consequence of the implementation of the common design and Mr. Pusic is
14 liable for foreseeable consequences because he was a member of the common
15 design. Of course our submission is that JCE theory is not applicable in
16 this case as there is no evidence capable of supporting a conviction to
17 the effect that Mr. Pusic was in fact party to that common design.
18 Your Honours, count 22 and 23, again the particulars are similar
19 so I have chosen to deal with these two counts together, and again I would
20 ask you to assume that each paragraph reference applies to both counts
21 unless specifically stated otherwise. Count 22 is an allegation of
22 appropriation of property not justified by military necessity and carried
23 out unlawfully and wanton think. Count 23 is an allegation of plunder of
24 public or private property.
25 Turning to the relevant paragraphs of the indictment there is no
1 comment that we wish to make in relation to paragraph 39. Paragraph 46
2 pertains to Prozor municipality but again relates to events in October
3 1992, and so pursuant to the decision of the Prosecution at paragraphs
4 230, Mr. Pusic is not charged with any of crimes committed at that time in
5 Prozor. Paragraph 57 also relates to events in Prozor municipality but we
6 have a situation where Mr. Pusic is judged to be liable for events that
7 took place in Prozor in July and August 1993.
8 Paragraph 67 pertains to Gornji Vakuf. Again it refers to events
9 in January 2003, so it does not -- so that is a particular that does not
10 apply to Mr. Pusic.
11 Paragraph 85 pertains to events in Sovici and Doljani in April
12 1993 where Muslim property is said to be confiscated, stolen and plundered
13 and robbed by HVO members. We submit there is no connection to Mr. Pusic
14 and any of the perpetrators of those alleged offences.
15 Paragraph 99 relates to events in Mostar municipality in May 1993
16 onwards continuing to April 1994 where HVO forces are engaged in the
17 alleged systematic expulsion and forcible transfer of thousands of Bosnian
18 Muslim civilians from West Mostar. Again we submit there is no evidence
19 to connect Mr. Pusic to any of the alleged perpetrators of those crimes.
20 The same submission applies in relation to paragraph 100, which is also an
21 account of events in Mostar in May 1993.
22 Your Honours, at paragraphs 107 and 108 also relate to Mostar
23 municipality. Paragraph 159 is relevant to events in Stolac in July 1993.
24 Paragraph 175 and 182 is relevant to events in Capljina municipality in
25 July and August 1993. Paragraph 209 relates to events in October 1993 in
1 Vares municipality, as does paragraph 211 and 213.
2 Your Honours, our submission in relation to all the particulars
3 that we have just outlined is that there is no evidence linking Mr. Pusic
4 to any of these offences and no evidence adduced direct or indirect that
5 links him to any of the alleged perpetrators of these offences. Once
6 again, we suggest that the only possible basis for liability open to the
7 Prosecution is under the exercise of extended joint criminal enterprise
8 theory or JCE type three. And, Your Honour, our submissions in relation
9 to that are -- are clear.
10 The last three counts that pertain to our submissions are counts
11 24, 25, and 26. Once again, the particulars are similar. We therefore
12 will deal with all three counts together.
13 Count 24 is an allegation, unlawful attack on civilians in Mostar.
14 Count 25, allegation of unlawful infliction of terror on civilians in
15 Mostar. And count 26 is an allegation of cruel treatment that pertains to
16 the Mostar siege.
17 The particulars of those offences are set out in the following
18 paragraphs: We have no comment to make as regards paragraphs 35, 36, 37,
19 and 39.
20 Paragraph 98 describes events in Mostar on the 9th to 10th of May,
21 1993. We submit, Your Honours, that there is no evidence that's been
22 presented by the Prosecution to link Mr. Pusic to any of the crimes that
23 are set out therein, and no evidence presented to link Mr. Pusic to any of
24 the alleged perpetrators.
25 Paragraphs 110, 111, 112, 13, 14, 115, 116, 117 all describe
1 events that took place in East Mostar from June 1993 to April 1994,
2 specifically the siege of Mostar.
3 Your Honours, our submission once again no evidence has been
4 presented by the Prosecution to link Mr. Pusic to any of the crimes
5 described therein and no evidence to link him to any alleged perpetrators.
6 The only basis of liability we submit is if the Prosecution choose to rely
7 on the extended theory of joint criminal enterprise or type three JCE, and
8 we submit JCE theory is not applicable in this case because no evidence
9 has been adduced capable of supporting a conviction to the effect that
10 Mr. Pusic was party to the common design at the heart of the JCE.
11 Your Honours, I would now like to draw my submissions to a close.
12 We've tried adopt a very systematic approach in developing our submissions
13 with reference to the indictment which we've analysed count by count,
14 paragraph by paragraph, particular by particular, and we invite and hope
15 the Prosecution will take a similar approach in their reply.
16 We also remind the Trial Chamber that the burden is on the
17 Prosecution to persuade the Chamber to the case that they have presented
18 satisfies the Rule 98 bis standard with regard to each individual count on
19 the indictment that is the subject of our application.
20 We'd also invite the Trial Chamber to remind the Prosecution that
21 this is not a forum for closing arguments and that the Prosecution should
22 only address the issues that we have raised in the course of our
24 We trust and hope that we have made our position crystal clear,
25 but in order to recap, in essence we ask the Prosecution to answer two
1 simple questions. The first question: What evidence is there that taken
2 at its highest a reasonable trier of fact could find capable of supporting
3 a conviction against Mr. Pusic for rape, count 4; inhuman treatment by way
4 of sexual assault, count 5; extensive destruction of property, count 19;
5 wanton destruction of cities, towns and villages, count 20; destruction or
6 wilful damage to institutions dedicated to religion or education, count
7 21; appropriation of property, count 22; plunder, count 23; unlawful
8 attack on civilians, count 24; the unlawful infliction of terror, count
9 25; cruel treatment, count 26. We say that no evidence has been presented
10 that is capable of proving any of these allegations.
11 Our second question: If JCE liability is the foundation of the
12 Prosecution's case in respect of any or all of the counts that we have
13 identified, then what is the evidence taken at its highest and given in
14 particular that Mr. Pusic is not charged with events that took place in
15 Prozor and Gornji Vakuf in the period specified, what evidence is there
16 that Mr. Pusic was a party to both limbs of this alleged common plan or
17 joint criminal enterprise?
18 We say that no evidence has been presented that is capable of
19 supporting a conviction on the basis of JCE liability. And when we use
20 the term "evidence" let me also make this claim: The Prosecution cannot
21 substitute inference for evidence and any inferences that they wish to
22 draw have to be reasonable.
23 Your Honours, that brings my submissions to a close.
24 JUDGE ANTONETTI: [Interpretation] Mr. Sahota, I would like to
25 obtain from you a precision, a clarification, if you will. On many
1 occasions you talked of a common plan and then of the JCE. Is it the same
2 thing, or are you presenting two very different notions or is it two
3 different notions in your mind?
4 MR. SAHOTA: Your Honour, I did try and clarify in my submissions
5 that the two terms were, as far as I was intending to make clear,
6 interchangeable. So when I use the term "common plan," you can take that
7 means joint criminal enterprise and vice versa.
8 JUDGE ANTONETTI: [Interpretation] Very well. Last question for
9 clarification purposes: According to you, what is a common plan or the
11 MR. SAHOTA: Your Honour, that's a question that I'd leave to the
12 Prosecution to answer. The burden is on them to prove their case.
13 They've set out the objectives of the common plan. I've read the
14 indictment. I've made my submissions, and, Your Honours, the answer to
15 that question is still a mystery to me.
16 JUDGE ANTONETTI: [Interpretation] Very well. I am now looking at
17 all Defence teams. Did everybody finish? So the procedure of Rule 98 bis
18 with regard to the Defence is closed or finished.
19 The Prosecution will give us their position next Monday since they
20 need a few days to get ready. So next Monday at 2.15 p.m., we are going
21 to hear you on this.
22 I don't know if somebody wishes to intervene on another topic. I
23 will hand them the floor. I see that Mr. Praljak raised his hand.
24 THE ACCUSED PRALJAK: [Interpretation] Your Honour, Your Honours,
25 of course I'm not going to comment, that's forbidden, but I'm just
1 interested in one thing.
2 During the presentation of the Prosecution evidence, a lot of
3 technical matters were raised, technical topics broached, and now as it's
4 the Defence case coming up now and the preparation of witnesses and their
5 proofing, I have 200 witnesses that I want to bring in probably under 92
6 ter for them to give their statement and then the Prosecutor can ask them
7 what he wants, but telephonics, for example, the Croatian language, the
8 question of water, electricity, things like that, we'd like some
9 instructions and guidance from the Bench please. Should I prepare experts
10 to come in to speak at length about what high frequency networks are, or
11 whatever, related to electricity and the water supplies and so on?
12 It's difficult for me to know what to do. So could we have some
13 guidance, please, from the Trial Chamber or from the Prosecution how broad
14 the topics should be, because it would last a long time. I don't mind,
15 but I think that some guidance and instructions would be helpful and some
16 general pointers. Thank you.
17 JUDGE ANTONETTI: [Interpretation] Very well. You've invoked two
18 subjects. You mention that you will have 200 witnesses. I -- I am
19 astonished by that number. Two hundred witnesses is a lot of people. And
20 you said that some people would be brought in according to the 92 ter
21 procedure, and it will go faster of course, but since we will have many
22 hearings, pre-trial hearings, two are planned, we are going to be able to
23 talk about the 200 witnesses at that point.
24 Now, with regard to some guidelines, the Judges will reflect upon
25 what you have asked. You've asked us in fact to give you some guiding --
1 or guidance in your defence strategy, but it's up to you and your counsel
2 to see what should be done and which strategy you will use.
3 Now, there's of course the time constraint, and the Chamber will
4 give to parties under the reserve of Rule 98 bis to intervene. Do not
5 take from the words I am saying now, do not take them literally. This is
6 just theoretically.
7 Now, if there is no acquittal, the Chamber, the Trial Chamber,
8 will have to establish the time for the parties, and of course when we
9 calculated that time, we will have to take into account certain factors,
10 and of course we will have to avoid between the six Defence teams
11 repetitions. Of course that's very important.
12 Now, this will be done when we meet during those two Pre-Trial
13 Conferences, and of course we will be more able to know exactly how much
14 time is left for the parties, but for now I won't be able to. I'm not
15 able to tell you anything. The Chamber is made up of four Judges, and the
16 four Judges have to either render a unanimous decision or a -- or
17 otherwise, but for now we have not discussed it amongst ourselves.
18 Therefore, I cannot give you any more guidance on this subject.
19 Mr. Scott.
20 MR. SCOTT: Your Honour, I thought -- I thought of something to
21 say from the morning, from the first part of our session today and I want
22 to be very clear because I'm very much aware that everyone on all sides
23 and in the Chambers and registry has been working very hard in these past
24 days. So what I am about to say is not meant as any form of criticism but
25 simply an inquiry.
1 Counsel today, in fact, referred to the evidence of Witness DZ,
2 and I realise that was only tendered just recently, but it would be
3 helpful for the Prosecution to know about the admission of the exhibits
4 related to that witness prior to their final submissions. I'm sure -- I'm
5 sure it's on its way but I'm just raising it.
6 JUDGE ANTONETTI: [Interpretation] Yes. Please rest assured that
7 the decision is almost ready. It will be rendered with my signature
9 We were faced with a great deal of decisions. We had to render a
10 great deal of decisions and from December up until today we have rendered
11 more than 130 decisions. This is a record in terms of decisions.
12 I know that this one is perhaps lagging behind, but I would like
13 to remind you that Witness DZ appeared here last week. So we cannot go
14 faster than music.
15 So everything is said now and I am closing this session, and I
16 would like to tell you that we will meet next Monday. So the hearing is
17 resumed next Monday.
18 --- Whereupon the hearing adjourned at 3.27 p.m.
19 To be reconvened on Monday, the 4th day
20 of February, 2008, at 2.15 p.m.