Page 251

1 would have to stop you in any case.

2 MR. KHAN: I'm grateful.

3 JUDGE AGIUS: Thank you.

4 MR. KHAN: Mr. President, Your Honours, on behalf of

5 Bruno Stojic, it's appropriate to start by saying - on behalf of the

6 entire team - that it is a singular honour to appear before of

7 Your Honours in this, the last appeal of the International Criminal

8 Tribunal for the former Yugoslavia. This Court, when it was established,

9 was a distant dream to many, and yet its contribution to the rule of law

10 to facilitate peace and reconciliation and to cross-fertilise different

11 legal systems with some fundamental principles is significant. The

12 impact of this Court goes well beyond the Balkans, but it is only right

13 there we start with the Balkans and start on behalf of Bruno Stojic with

14 a word of sympathy to express our very sincerest condolences for all the

15 people of the former Yugoslavia - whatever their race, religion,

16 ethnicity, be they Croat, Serbian or Bosnian Muslims or any other ethnic

17 or affiliated group - because they survived exceptionally dark days,

18 perhaps the darkest days that Europe has seen since the Second World War;

19 and their courage to survive and to continue deserves our respect. On

20 behalf of Bruno Stojic, we give it without reservation.

21 One cannot help but be moved when we see the photographs like the

22 Prosecution put up yesterday of the Dretelj camp. When one sees

23 photographs like that, there is - understandably - a visceral reaction of

24 abhorrence that man can make his fellow man, woman, and child still

25 suffer. But, Your Honour, we're not - and this Tribunal and this

Page 252

1 appeal - is not focussed as some outpouring of grief. The focus of the

2 trial was contained within the four walls of the indictment, whether or

3 not the Prosecution had proved the case it put forward. And in this

4 appeal, Your Honours, of course, the task for Your Honours is to

5 determine the respective merits of the Defence appeals and the

6 Prosecution responses within the prism of Article 25. We say that there

7 are ample grounds to show that both there are manifest mistakes, which

8 have occasioned a miscarriage of justice, and numerous errors of law

9 which invalidate the decision.

10 The Prosecution are the architects essentially of this case.

11 They chose the scope of this case. They chose the mode of liability of

12 joint criminal enterprise. Almost 18 years ago - there's a certain

13 symmetry in this case - almost 18 years in the very first appeal of this

14 Tribunal, the Tadic decision, the Judges rendered a decision on JCE.

15 This is the last opportunity for the Judges to consider it against the

16 evidence and against the facts. It is well known - it needs no

17 repetition - that the doctrine itself, particularly the form of joint

18 criminal enterprise 3, has around -- aroused significant controversy. It

19 has not been followed by the International Criminal Court. It has been

20 rejected by the ECCC. Importantly, I think, because going back to

21 Nuremburg and the Control Council 10 and subsequent proceedings and the

22 genesis of joint enterprise, the Supreme Court of the United Kingdom in

23 the case of Jogee last year very boldly; courageously, I would submit;

24 and very appropriately announced that it made a misstep back in 1985.

25 Your Honours, we haven't in our brief sought to persuade Your Honours to

Page 253

1 revisit the contours of joint criminal enterprise. What we say is that

2 according to the law as it stands, as articulated in Your Honours'

3 jurisprudence in Brdjanin and others, the Chamber ran into error.

4 Your Honour, this appeal has many aspects, but one of the

5 features is whether or not the elements have really been satisfied beyond

6 reasonable doubt; whether or not the joint criminal enterprise in this

7 case - the massive, extensive, far-reaching joint criminal enterprise -

8 can be proved and has been proved by way of a properly reasoned decision

9 based upon inferences from circumstantial evidence. Because there's no

10 direct evidence of a joint criminal enterprise; it is inferences woven

11 together.

12 Your Honour, we rely fully on our brief that we have submitted,

13 the 52 grounds, I think it was, that are contained in our brief which are

14 fully referenced. In the time allotted to me today, I'm going to

15 endeavour to deal with three main themes, if I get there. The first is

16 the Defence argument that the Trial Chamber erred in finding that there

17 was a joint criminal enterprise of the type it found. The second limb is

18 that even if they were correct that there was a joint criminal

19 enterprise, they erred in fact and in law in finding that Bruno Stojic

20 was part of that joint criminal enterprise. And the last limb, if I get

21 to it, will be some submissions regarding the expanded JCE.

22 It is not without significance, perhaps, Your Honours, that right

23 at the beginning of volume 4, the majority's decision, they announce in

24 paragraph 41, and I quote:

25 "The Prosecution alleges the existence of several JCEs set up at

Page 254

1 various times and under various forms. However, as will be set forth

2 below, the Chamber considers that the evidence demonstrates that there

3 was only one, single common criminal purpose - domination by the HZ-HB

4 Croats through ethnic cleansing of the Muslim population."

5 In that paragraph, if one pauses for a moment, Your Honours may

6 gain an insight into the some of the challenges and some of the

7 difficulties that we say have become manifest in the course of this

8 judgement. The majority - rather ambitiously you may think - decided

9 rather than to go with the Prosecution's assertion of several JCEs, they

10 would posit that there is one massive overarching joint criminal

11 enterprise.

12 Your Honour, lest there be any suggestion, we - on behalf of

13 Bruno Stojic - do not ascribe any conspiracy to the majority. We do not

14 say that they have approached this mala fides or with any ulterior

15 intent. Both Judge Trechsel and Judge Prandler are eminent jurists,

16 honourable individuals. But the fact remains that we assert vigorously

17 that they had fallen into error. Human frailty is something that

18 attaches to each and every one of us. So, Your Honour, it may that the

19 majority was simply overwhelmed and couldn't handle a massive case of the

20 type alleged by the Prosecution; and in their attempt to make sense of

21 the disparate information, the masses of documents put forward by all

22 parties, they sought evidence - instinctively perhaps, but erroneously -

23 that fitted their -- the theory they decided upon. Because however one

24 dices it, however one looks at it, the fact remains that very critical

25 evidence has not been considered by the majority. And I will come back

Page 255

1 to that, if I may.

2 Your Honours, if -- at this point I would seek to hand up - I've

3 already given it to the court usher - short skeletons in relation to the

4 questions raised by Your Honours and that's fully footnoted. I think

5 that will help us move a little bit quickly. It may also help the

6 Prosecution because some of those questions will be dealt with next week,

7 so it will give them a bit more time. But perhaps those can be

8 distributed, one for each of the Judges and for the Prosecution, and for

9 the -- our colleagues as well.

10 Your Honour, while that's being done, I will move straight to the

11 first contention that --

12 JUDGE AGIUS: One moment, Mr. Kahn. Just to be on the safe side

13 of precaution, there is no objection on the part of the Prosecution.

14 [Prosecution counsel confer]

15 MR. MENON: Your Honours, we have not obviously had a chance to

16 review this but --

17 JUDGE AGIUS: No, I'm not talking about the contents.

18 MR. MENON: But it does like a mini-brief actually, so we would

19 object to it.

20 MR. KHAN: Well, Your Honours, the purpose, of course, of the

21 hearing is to get to the truth and to allow Your Honours as much clarity

22 as possible. We've organised it every question has a new page.

23 JUDGE AGIUS: All right, one moment.

24 [Trial Chamber confers]

25 [Prosecution counsel confer]

Page 256

1 JUDGE AGIUS: All right. We are all agreed here - and thank you

2 for being patient with us - we see absolutely nothing wrong with

3 following this procedure. These are submissions that are being made by

4 appellant -- Mr. Kahn in response to the questions that we have indicated

5 in our 1st March order.

6 So basically this is not part of the evidence; it's an aid that

7 the Defence is providing us in order to speed up and also follow.

8 MR. KHAN: Mr. President, Your Honours, I'm most grateful for

9 that kindness.

10 Your Honour, as is apparent, the JCE encompasses both individuals

11 that had died at the time the case -- the indictment was brought,

12 President Tudjman, Bobetko, and Susak. It comprised both political

13 leaderships in the form of Boban, Mr. Prlic, and Mr. Stojic; and the

14 military in terms of Praljak -- General Praljak and General Petkovic and

15 other members of the HVO. The time duration was 16 months, 21 different

16 crimes alleged within that alleged joint criminal enterprise, and - as

17 Your Honour, Mr. President noted yesterday - dealt with a broad

18 geographic area, eight municipalities and five detention centres.

19 The scale is not the complaint. We can understand and accept

20 that joint criminal enterprise -- in fact, maybe its greatest utility is

21 in a wide case, but it has some implications in our respectful

22 submission. Because the wider the JCE, the more the temptation perhaps

23 to find -- greater the danger, perhaps, to find the existence of a JCE

24 without satisfying each and every essential element that is required in

25 that doctrine to prevent it becoming such a ill-disciplined concept that

Page 257

1 certainty in the law is completely eviscerated.

2 Your Honour, as mentioned, there's no direct evidence of an

3 agreement between the alleged members of the JCE, and that's why I said

4 at the outset this case is based upon inferences and whether or not the

5 inferences that the Prosecution put forward and which the Trial Chamber

6 considered were the only reasonable inferences open to that Trial

7 Chamber. I can fully accept that certain dots were joined by the Trial

8 Chamber and a certain picture emerged which finds form particularly in

9 the decision of the majority. But we say that the picture that emerged

10 by the Judges, the majority, joining those dots only emerged because they

11 failed to consider many other dots on the board, which - if they had

12 considered - would have displayed a very different landscape.

13 Your Honour, with your collective experience as a Bench, knowing

14 the Balkans, and seeing the briefs of the parties, it is clear that the

15 events in Bosnia and Herzegovina and Croatia in the period of the

16 indictment were not clear-cut; they were fast-changing, they were

17 complex, they were contradictory, and perhaps immediately a red flag

18 should be raised. Because when in that complexity a nice little package

19 of a concept is articulated, either it could be absolutely accurate or it

20 could amount to a gross simplification; we say that it was the latter.

21 Dealing with Ground 1, really, the foundations of the case we

22 say - and it's on your screens, Your Honours - that the extract of the

23 Judgement that is displayed shows a sweeping finding. The majority

24 referred to leaders of the HZ(R)HB - pause there for a moment - fails

25 anywhere in the judgement to define who these leaders of the HZ(R)HB are.

Page 258

1 But what it finds, what the majority finds, is that all times of the

2 indictment, whatever the political situation, whatever the pressure from

3 Serbia, whatever the pressure from the international community, whatever

4 negotiations were ongoing, there was a complete consistency as far as the

5 ultimate purpose is concerned. Well, Your Honour, there's no Northern

6 Star to guide the majority; there was the evidence. And it's important

7 when looking at paragraph 24 of the judgment, that the majority's

8 conclusion is clearly based primarily on the intentions of one man - not

9 Bruno Stojic, our client - but the intentions that were attributed to

10 president Franjo Tudjman. And in the 24 paragraphs of the Judgement,

11 it's noticeable that, whereas there's many mentions of president Tudjman

12 and others, there's only squeezed in - gratuitously perhaps for the

13 Prosecution - squeezed in is one mention, one solitary mention, of

14 Bruno Stojic.

15 One of the characteristics when one is assessing this ground of

16 appeal are the presidential transcripts; they loom large. And

17 significant weight must be given to those transcripts because they are an

18 almost verbatim recording of private conversations between certain actors

19 that are relevant to the Prosecution's case and the leadership in

20 Croatia. And they are particularly relevant, given the finding by the

21 majority, that the position of President Tudjman, who stands astride this

22 judgment like a colossus, that his position was - in their words - that

23 he spoke equivocally, that in public everything was fine and dandy, peace

24 and love to all, support for Bosnia. But the majority say that in

25 private a very different picture emerges of a veracious leader who to

Page 259

1 wishes to dismember a neighbouring state. Well, Your Honour, this is why

2 our ground for appeal is so important because if that is right as a

3 matter -- as a reasonable inference available to the Judges - give weight

4 to the private recordings, innermost conversations, innermost feelings,

5 no spin, no audience outside the inner circle - then it was mandatory for

6 those Judges in discharging their oath and to assess fairly the case to

7 consider all of the presidential transcripts that were relevant to this

8 issue and they failed, patently failed, to do that. When one considers

9 those presidential transcripts that we refer to in our brief, it is clear

10 that there is no double game being played at all. There's a complex

11 situation, and complexity sometimes has to be simply acknowledged,

12 particularly in a court of law. Inconvenient facts, events that don't

13 square cannot be brushed under the carpet or put to one side; they need

14 to be confronted head on, and - as we'll see in our brief and hopefully

15 I'll show - that the majority failed to do.

16 Your Honour, in assessing all of those transcripts, the Defence

17 do not have to prove that President Franjo Tudjman was a great

18 humanitarian. We do not have to prove that he didn't at any point of

19 encourage Croatian intervention in Bosnia. We don't have to prove that

20 he never wavered in what he was thinking at any moment in time. The only

21 thing we have to establish is that no reasonable Chamber, properly

22 considering the evidence, could have found this ambitious, overarching,

23 never wavering, ultimate purpose that the majority hinged their decision

24 upon.

25 Your Honour, when it comes to the presidential transcripts, I

Page 260

1 would invite Your Honours to give significant weight to the very

2 forensically detailed approach of Judge Antonetti, the President of that

3 Trial Chamber. Your Honour, Judges can render decisions to greater

4 claim. They can render decisions that are criticised, even vehemently,

5 but to steal the words of Kipling, Judges are well advised to "treat

6 those two imposters of triumph and disaster just the same."

7 When it comes to Your Honours' assessment of the merits of

8 Judge Antonetti's dissent and findings, we humbly pray that you confine

9 yourself - as we're sure you will - to the covers of volume 6; and

10 decide, when viewing that volume 6 against the evidence, whether or not

11 Judge Cassese's -- Judge Antonetti's findings were reasonable and

12 justified and supported by chapter and verse. Because if Your Honours

13 find, as we would urge you to do so, when it comes to the treatment of

14 the presidential transcripts, that Judge Antonetti's findings are

15 absolutely reasonable and absolutely correct, it would irresistibly

16 follow that the conclusions of the majority is not -- as being the only

17 possible inferences is unsound, and I think that must follow as night

18 from day.

19 Your Honour, all the references are in our briefs, but if I could

20 perhaps put on the screen P00822, and you'll see from that at page 52

21 that this is a portion of a presidential transcript dated 27th of

22 November, 1992, inner-most sanctum, the Croatian Defence and National

23 Security Council - no need to cloak the true intentions of President

24 Tudjman. And what he says in relation to the Bosnian Muslims is on the

25 screen:

Page 261

1 "We should thus endeavour that our people in Bosnia and

2 Herzegovina do not breach that general agreement and that a political and

3 military co-operation be established in this war, even if [sic] we do

4 things in their favour even when they have not completely earned it."

5 And he continued. Speaking between ourselves, he's very

6 revealing speaking amongst this trusted group that were around him:

7 "If it is possible to hold Bosnia and Herzegovina together as a

8 community of three constituent peoples in which the Croatian people will

9 have their position secured [sic], let it be held together. But if it

10 cannot be held together, if the world, Europe and America let [sic] the

11 Serbs take their areas, let the Muslims come with us, let the Croatian

12 interests be secured in this [sic] way."

13 Well, the first thing, nothing about ethnic cleansing. Nothing

14 about, God forbid, Muslims being untouchables, to be kept away. Let the

15 Muslims come with us, completely contrary to the majority's finding. And

16 this is just two months before the majority find the JCE started in

17 January 1993.

18 Your Honour, it shows understandably that the aim was, of course,

19 as you'd expect from a leader, the interests of his own country, namely,

20 Croatia and to ensure ideally keeping Bosnia together. Of course,

21 alternative scenarios are discussed. Well, which leader wouldn't discuss

22 contingencies at a time when the world held its breath looking at the

23 scenes that were visited as upon our television screens as Bosnia was in

24 crisis, and nobody knew if that republic would be recognised or survive

25 at all.

Page 262

1 But it cannot be said that these documents from the presidential

2 transcript show an ultimate aim to reconstitute the Banovina of 1939.

3 The Judges, the majority, completely failed to address this document;

4 they turned away from it. An inconvenient truth, perhaps. Something

5 that was too difficult to handle because it was at odds with their

6 overarching ultimate aim, JCE, which they found.

7 Your Honour, it's true when one looks at our brief that

8 President Tudjman's interest in an independent Bosnia and Herzegovina

9 through a confederate model is apparently in various presidential

10 transcripts, but the Trial Chamber - whilst citing some of those

11 transcripts - found that President Tudjman "continued to be preoccupied

12 with the borders of Croatia and the Croatian Banovina."

13 But that's not the only inference. That's not the only

14 reasonable inference. That's what's critical for Your Honours. That's

15 not the only reasonable inference that can be ascribed to those

16 transcripts and that evidence. It's consistent with a desire to protect

17 his country, Croatia. It's consistent with a desire to avoid economic

18 sanctions, to defend his territory and the territory of Croatia and the

19 interests of Croatian people, whilst ensuring he was compliant with what

20 the rest of the world was demanding. It's equally consistent with an

21 unable desire to prevent a Greater Croatia coming right to the -- a

22 Greater Serbia coming to the border.

23 Your Honour, we can put on the screen now P1883 and page 12.

24 April -- 15th of April, 1993. Again, a document not considered. Four

25 months after the JCE is said to have been hatched and in operation by the

Page 263

1 majority, and President Tudjman says that the Americans envisaged

2 co-operation as best relations with the Muslims as possible, which is of

3 course what we are doing. If the majority are correct that gives

4 significant weight to these private conversations as evidence of the real

5 intentions of the protagonist in those meetings, why look away from this

6 in which President Tudjman is saying it's not about getting rid of

7 Bosnia-Herzegovina but doing their best to have good relations with the

8 Muslims.

9 P2466 at page 11 you have another example. 20th of May, 1993,

10 five months after the alleged JCE was found by the majority in that

11 impugned decision. And President Tudjman says and I quote:

12 "I informed them, the Croatian representatives in the context of

13 Mostar, that by leading the politics of escalation of conflict with

14 Muslim, they are endangering the interests of the Croatian state because

15 of the indication of sanctions."

16 Now, Your Honour, in each transcript different issues are in the

17 forefront of the mind of President Tudjman, different issues are being

18 discussed; but they do not show a preoccupation in our respectful

19 submissions with the borders of Croatia. They refer to co-operation and

20 the reality that escalation was against Croatia's interest for many

21 obvious reasons. And all of these transcripts are contrary to the JCE

22 put forward by the Prosecution and embraced wholeheartedly and vigorously

23 by the majority of the Trial Chamber.

24 Now, the Prosecution will say, Well, it's all about avoiding

25 sanctions. He may have responded in that ilk when he was trying to do a

Page 264

1 sidestep and avoid sanctions. Well, we say that's not a convincing

2 answer. It's a lame answer. It is an unconvincing answer. Because of

3 course every head of state, every leader would like to avoid sanctions.

4 But the desire to avoid sanctions is completely - if he was honest about

5 it - is completely contradictory with the theory of the Prosecution that

6 Tudjman wished to divide up Bosnia in breach of what the rest of the

7 world wanted at the time. Of course, there would be consequences. Of

8 course, there would be repercussions. And of course it would be readily

9 foreseeable, if not absolutely certain, there would be sanctions. So how

10 to the Prosecution square that paradox? They don't. How do the majority

11 deal with it? They don't deal with the document at all.

12 Your Honours, alternative inferences, alternative readings

13 are contained not only in the presidential transcripts, but in the

14 submissions we put forward, including that the establishment of the HVO

15 must be seen in the context of a legitimate need to defend the Croatian

16 people and the people in those areas of all ethnicities from aggression,

17 that unfortunately Serbia at that time was engaged, the government and

18 paramilitaries of Serbia. And that argument - and it staggers belief -

19 that argument, that important argument, was not cited by the majority in

20 its summary of Defence submissions. The way the majority dealt with that

21 argument of us, of the Defence, is at paragraph 15 of the Judgement. And

22 they say that:

23 "Although HZ-HB was created against a backdrop of war in response

24 to Serb aggression ... the various components of BiH population may have

25 believed it was their right to organise themselves in order to secure

Page 265

1 their own survival ..."

2 Well, that's strange. I think the first right of every human

3 being is to defend themselves for their survival; there's no equivocation

4 necessary. But, Your Honour, what do they then go on to say? They

5 observed that Franjo Tudjman was advocating the existence and legitimacy

6 of the BiH Croatian people in order to protect the borders of Croatia.

7 Well, we say that that's a very curious way of avoiding the pressing

8 issue. The Chamber acknowledged HZ-HB was created against a backdrop of

9 war. They acknowledged that components, the peoples in that area, were

10 trying to organise themselves for their survival. But through reference

11 to what they contend to be one man's desire to recreate the Banovina,

12 they say all of those actions, all of those steps, all of that

13 organisation was simply pursuant to an ultimate objective. It's

14 ludicrous. It's far too simplistic. And it doesn't do justice to the

15 complexity, the factual complexity that one has to struggle with to do

16 justice in this case.

17 In fact, Your Honours, a legitimate response to Serbian

18 aggression in those times, in that context, looking at the evidence

19 before the Chamber was absolutely a reasonable alternative way of reading

20 many of the events cited by the majority. Why always cling on to the

21 overarching ultimate aim, JCE? Neat, tidy, attractive at first blush,

22 but not consistent with the facts.

23 Your Honour, the formation of the HVO was an important step in

24 the -- in the region - and it's set out at paragraph 25 of the second

25 amended indictment - that the HVO was one of the essential structures and

Page 266

1 instruments of the JCE. And we can put P151 on the screen, which makes

2 it clear - if one looks at it fairly, dispassionately, objectively - that

3 the aim of the HVO was created in order to protect the Croatian people,

4 not as a homogeneous, pure race of people, protect the Croatian people as

5 well as other people in this community attacked by the aggressor. And it

6 is very clear from the documents, the aggressor that's being referred to

7 at that period are the Serbs. So nothing about ethnic cleansing, nothing

8 about ultimate purpose; it's about organising to protect the people

9 living in that area, in that geographical area, that was dominated

10 numerically by the Croatians, by the Croats of Herceg-Bosna. Not

11 discriminatory at all.

12 Your Honour, there is a lot of documents in the brief, there's a

13 lot of documents that are in the appellate briefs of our learned friends.

14 But we say, with the greatest of respect, that the majority have engaged

15 in a thesis that perhaps is more appropriate for a historian than a

16 Judge. The luxury of giving colour to certain inferences and certain

17 events and postulating an historical thesis, rather than Judges who must

18 decide a case whether liberty of the accused is at stake to the criminal

19 standard of beyond reasonable doubt. And it requires a candour to accept

20 that the devil is in the detail, that things do not always -- they're not

21 always as simple or as neat as one would like. And to confront those

22 difficult pieces of evidence that don't fit the theory and then to

23 explain them, not to ignore them. And, Your Honour, we say that when one

24 considers these findings on Ground 1, it is really manifestly clear that

25 the Judges embarked upon a very ambitious project in finding this

Page 267

1 creation of the Banovina being the ultimate aim and one that is simply

2 not -- that doesn't comport with the facts and one would that only stand

3 up to scrutiny if you ignore many of the presidential transcripts, a

4 couple of which I've put on the screen today. They cannot, we say,

5 fairly, in fairness to the fair trial rights of Mr. Stojic, be dealt with

6 in not just that dismissive manner, but to be completely ignored in the

7 manner that they have been in the majority's decision.

8 Your Honour, the second point I'll move to is Ground 2, and

9 that's the majority's finding that a common pattern of criminal conduct

10 established a common purpose. And we say in Ground 2 that that

11 decisively contradicted by the co-operation between the HVO and the

12 armija. Now I really would ask Your Honours to give the most anxious

13 scrutiny to our submissions in relation to this ground as well. A

14 significant plank of our defence, not in closing, not today, but from the

15 beginning of the trial was that the co-operation between the HVO and the

16 armija helped show that the intent the Prosecution contended existed, the

17 JCE that they asserted simply was untenable. That argument was one of

18 only four arguments, four submissions that we put in our closing brief,

19 one of only four. It contained 15 pages of our final brief. I made

20 submissions on this issue in oral arguments, closing speeches. Six of

21 our 19 witnesses, almost one-third, six of our 19 witness, Milos Cehulic,

22 Pinju, Majic, Bahto, Makar spoke to that issue. Many documents were

23 tendered in support of this proposition. Many more documents would have

24 been tendered but for the -- what we say is the wholly erroneous and

25 unfair decision of the majority to refuse to admit other documents, and

Page 268

1 that's dealt with in Ground 5.

2 So on any measure, by any yard-stick, a very important plank, in

3 fact the bedrock of our case. How did the majority deal with that? What

4 should be expected? You will be staggered, Your Honours, they didn't.

5 They didn't deal with those arguments at all. A reader examining the

6 Trial Chamber's findings wouldn't know that this had been such a pivotal

7 part of Defence submissions. It's not mentioned, these arguments are not

8 mentioned in black and white in the analysis of JCE. Paragraph 39 of

9 volume 4 is the single paragraph in the majority which is supposed to

10 summarise the six arguments of the various Defence teams. That doesn't

11 contain any mention of those witnesses or these arguments. It is

12 telling, we say exceptionally revealing, that footnote 112 to that

13 paragraph cites paragraphs 64 to 152 of our final brief, the Stojic final

14 brief at trial. But this issue was addressed in paragraphs 34 to 63 of

15 the final brief, not considered at all. Absolutely unreasonable. And

16 these constitute by itself, we say, grounds for reversing the decision.

17 The only objective conclusion is this important evidence, these important

18 witnesses, a third of our Defence witnesses, a quarter of our submissions

19 on common purpose were completely and utterly disregarded by the

20 majority.

21 We can put on the screen paragraph 440. The only finding dealing

22 with this body of evidence is in volume 1, paragraph 440. And that,

23 according to its subheading, deals with the period February 1992 to

24 August 1992. But, Your Honour, the factual finding there is significant

25 anyway, because the majority did not return to consider the implications

Page 269

1 of that finding when considering the common plan, whether or not a common

2 plan existed. Surely they should have -- once they've said that there

3 was co-operation between the HVO and armija against the JNA and it

4 continued to early 1993, the next step there in that section -- or, of

5 course, one would expect in the JCE section is to discuss and weigh and

6 evaluate whether or not that co-operation impacted on the intent and the

7 existence of the JCE at all. They didn't. Glossed over it. And it

8 becomes more pronounced when one looks at, for example, the transcript of

9 Mile Akmadzic, 17th June 2008, and that's the transcript at page 294 --

10 294431 [sic]. And the evidence cited in support of that testimony at

11 footnote 1038 of the majority included this testimony. So the majority

12 decision cites Mile Akmadzic, and it referred to 1D01282, and we can go

13 to that. The date of the document is May 1993. So the footnote that the

14 testimony -- the testimony contains a reference to an exhibit. The date

15 of the exhibit is May 1993, and one can see both in that text and down

16 below a few lines later, mention of May 1993 and then later 29th of

17 April, 1993. Hardly early 1993. So you get the position that even

18 assessed against its own footnotes, the majority decision falls into

19 disarray. Because even the footnotes it decides to then choose don't

20 support the inference that supply, arms, munitions, gun, rockets continue

21 until only early 1993.

22 Your Honour, if the Judges had done what we had hoped of them,

23 what we say was required of them, they would have, in fact, found that

24 the co-operation, the MTS, the military arm support, logistic assistance,

25 fire-arms, rockets continued throughout 1993. That's what a reasonable

Page 270

1 Trial Chamber would have done and that was amply supported by the

2 evidence, 2D00229. These are just examples to show how fundamentally

3 erroneous, how unsubstantial was the decision of the majority. Now, this

4 document that's on the screen shows a letter from Arif Pasalic to

5 Sefer Halilovic dated the 26th of February, 1993, and it states that

6 until now, that's February -- end of February 1993, Safet Orucevic, he's

7 from the 4th Corps of the armija had successfully performed major jobs

8 regarding the entrance of goods with the HVO. So it clearly shows

9 there's assistance and co-operation in February.

10 Next document, 2D0031, 30th of March, so two months after the

11 supposed commencement of the JCE. Your Honours, please pause for a

12 moment and look at that document. 3 million bullets, 3.000 AK-47 assault

13 riffs, 180 RPG rocket-launchers, 4.270 RPG mines, 30.625 kilograms of TNT

14 provided to the Army of Bosnia-Herzegovina. Really? A joint criminal

15 enterprise? Giving guns that can be turned upon oneself? Or is it

16 support that runs counter to heart of the Prosecution's case that was

17 erroneously accepted and ambitiously modified by the majority.

18 Your Honour, let's go even further from March. Let's go to May.

19 2D01107. HVO Main Staff approved further materiels and equipment to the

20 armija. And Makar Andjelko gave evidence about this transfer, and I'll

21 just read the reference. It's his testimony in court of the 23rd of

22 March, 2009, transcript 38.448 at lines 2 to 4. And he is the assistant

23 Chief of Staff of the armija of Bosnia-Herzegovina, the 2nd Corps. So he

24 is a Bosnian army officer, senior, and he goes to Mostar and he collects

25 in May - five months after this conjured-up JCE, we say - 600.000 rounds

Page 271

1 of ammo, of ammunition, and 2.000 rockets for rocket-propelled grenades

2 and 200 assault rifles and 30 rocket-launchers. And the Prosecution say,

3 Well -- they may say it's irrelevant because those weapons are to fight

4 the Serbs. This is twisted, we say - I apologise, but it's twisted,

5 contorted, and wholly expedient thinking by the Prosecution because they

6 are arms that are mobile. You don't give an assault rifle or a weapon

7 and say, It must stay there; it's tethered, it's anchored to the ground.

8 Once you give to your opponent, a belligerent to a conflict, the people

9 one is trying to destroy according to the Prosecution, of course you know

10 those guns have no loyalty to the giver. They will fire just as well on

11 the giver as anybody else. So is this something the Trial Chamber should

12 have considered? They didn't. And look at the date and look at the

13 location. May, Mostar. And it's only days importantly, it is only days

14 before the fighting between the HVO and the armija escalated in Mostar

15 itself. But all of that was apparently of any relevance to the majority.

16 And again it's important, when one is assessing what happened in Mostar,

17 was it a local reaction, escalations, as Judge Antonetti found between

18 different egos and different personalities and chaos, is that more

19 realistic, is that more believable; or is the only reasonable conclusion

20 beyond reasonable doubt that it was all done pursuant to this ambitious

21 overarching JCE?

22 Your Honour, but there's more. Witnesses gave evidence that

23 co-operation and provision MTS continued throughout the war. Now,

24 Mario Milos, whose evidence wasn't cited by the Trial Chamber, T38657,

25 highlighted - it's there - that throughout 1993 when Judge Antonetti

Page 272

1 asked him -- Judge Antonetti asked throughout 1993 were -- or did Croatia

2 deliver weapons and munitions to the armija? And the answer was yes.

3 And, Your Honour, here just referred in testimony to 2D00959, now that

4 was a document dated August 1993 which we say was wrongly excluded by the

5 majority. It was a document from August 1993 showing further MTS being

6 given by HVO to the armija.

7 But, Your Honour, Milos was not alone. Because when one goes to

8 another very senior, very courageous officer, a General Hamid Bahto of

9 the armija of Bosnia-Herzegovina. He said very much the same thing, and

10 his evidence wasn't considered by the Chamber at all when it comes to a

11 JCE and the provision -- the relevance of the provision of MTS to JCE.

12 He is quoted only by the majority in mitigation. So they completely

13 missed the point. We didn't bring this witness - as our brief attests -

14 as somehow mitigation, that we have a Bosnian Muslim officer saying that

15 some goodies were given to the armija. We brought these witnesses to

16 show that the provision of such support, logistics, and weapons is

17 completely opposite to the contended ultimate purpose JCE that was

18 postulated by the Prosecution and General Hamid Bahto says at the

19 transcript, page 39731 at line 17, that the alliance, and I quote:

20 "Existed throughout the war. We were receiving technical and

21 military assistance from Croatia throughout the war."

22 So, Your Honour, I could go on and on and on, but time doesn't

23 permit me.

24 And, Your Honour, as is apparent in our brief, it wasn't just

25 military equipment and hardware and rockets and guns that can kill and

Page 273

1 maim; it was logistical support, it was training in Croatia, it was

2 hospitals in Croatia, it was armija, Bosnian army, logistical centres in

3 Croatia. All of that just an irrelevance as far as the majority is

4 concerned. And the joint commissions, the joint commands that had been

5 established in 1993 between the armija and the HVO in Gornji Vakuf, in

6 Central Bosnia, in Konjic disregard -- these were not areas where --

7 these were not areas where there were joint operations against the Serbs.

8 So the fact of these joint commissions was not -- was that not

9 evidentially significant? We say of course it was, and any reasonable

10 Trial Chamber who properly mastered the facts and who properly managed to

11 understand and distill those facts would have considered them and

12 wouldn't have come to what we say was the wholly erroneous finding of the

13 majority.

14 2D00150, and I'll deal with this quite quickly because I'm

15 lagging quite behind. These documents show that as of the 9th of June,

16 1993, so six months after the JCE, and last column it shows the

17 percentage of Muslims in various HVO units. Some units have more than

18 50 per cent Muslims, 50 per cent as of June, six months later. So was

19 this assessed and properly understood reasonably as the only reasonable

20 inference that somehow this would link in to the ultimate purpose? It

21 wasn't.

22 Now, the numbers dropped significantly from the 30th of June.

23 Why? Was it because of an ultimate purpose that was hatched in

24 January or was it because on that date HVO units themselves that

25 contained Bosnian Muslim members turned against their comrades? Which --

Page 274

1 which is more -- which is more reasonable? Yes, the Army of

2 Bosnia-Herzegovina. I thought I said that.

3 Your Honour, the attack of the Tihomir Misic barracks is

4 important. When assessing all of this, it's easy to be critical. It was

5 mammoth case to preside over, it was a mammoth case to render a judgement

6 over. Your Honours will feel some sympathy with the Herculean task that

7 confronted the Judges. I think all of us on all sides, Prosecution and

8 Defence, struggle with the breadth and weight of this case; it's not

9 easily digestible. But, Your Honour, this is not a majority missing one

10 or two documents. It's missing what I would say is the foundation, one

11 of the main pillars of a Defence case. And, Your Honour, this wasn't a

12 short judgment. We have six volumes. It's very difficult to bring it to

13 court. The majority is 1800 pages. It dwarfs even "War and Peace" at

14 1200 pages. It wasn't judicial economy of space that made them leave out

15 this important evidence. It wasn't want of time. Because, as

16 Mr. Karnavas said yesterday, Their Honours very properly, I don't

17 criticise, took a lot of time, years, to consider this decision. But

18 having given themselves all the time in the world and having given them

19 all the space in the world, they missed the most important argument in

20 the world for Mr. Bruno Stojic.

21 Your Honours, the Prosecution may say, Well, it doesn't matter

22 that a quarter of the submissions were rejected; they were useless.

23 They're not relevant. But we say that that evidence decisively - it

24 wasn't hyperbole - we say it decisively undermines the inference that

25 there was a JCE. If Croatia and the HVO wished to partition the

Page 275

1 Bosnia-Herzegovina in that manner, it made no sense to give that type of

2 weapons and that type of support to one's enemies. That's common sense

3 we would submit.

4 And Your Honour, going back to General Bahto again at transcript

5 37910 at lines 22 to 23, he said very clearly when he was asked in

6 evidence, he said:

7 "I couldn't possibly imagine that we were enemies."

8 He is the senior Bosnian army officer. He couldn't imagine at

9 all that we were enemies. And yet the JCE mantra remains. It's a nice

10 case. It's a large case. It allows big fish who were not indicted while

11 they were alive in the form of President Tudjman and Boban and others to

12 appear as ghosts in these proceedings, but for the Defence they are

13 phantoms to fight and they're very difficult to confront. And the way

14 the case has been adjudicated really falls beneath the standard, we say,

15 that -- well, meets the standard of appellant review to be reversed.

16 Your Honour, I must move on. There is quite a bit more I could

17 say on that topic. But moving on to Grounds 3 and 4, the clear pattern.

18 The Judges in volume 4, in paragraphs 44 to 65 narrate what appears to be

19 a very logical, progressive escalates in the conflict that brokers only

20 one explanation, organise, planning, ultimate purpose joint criminal

21 enterprise. But we say that picture emerges very beautifully from the

22 pages only because the alternative - equally plausible, if not more

23 plausible reality - is ignored, the fact there were flash-points. There

24 were flash-points between men with guns, and that's what it was, it was

25 the armija and the HVO, men with guns, former Yugoslavia disintegrating,

Page 276

1 different egos as Judge Antonetti mentioned, different local aims and

2 proclivities, and flash-points. And as Judge Antonetti asked in his

3 dissent and I quote:

4 "Are we not confronted with a classic internal conflict while

5 local political aspirations, the egos of some, and political ambition led

6 to unmanageable situations in terms of authority and command."

7 With the greatest of respect, I say the Judge hit the nail on the

8 head. And seen in that light, the events narrated by the majority seem

9 to show a pattern simply because those events and those facts that don't

10 fit that pattern are not mentioned. And the issue also, we say, isn't

11 whether or not a particular activity is offensive or defensive. It's

12 whether or not each engagement is linked to the ultimate purpose of the

13 joint criminal enterprise. And that's what the Judges should have done.

14 In relation to each engagement, don't just focus on whether it's

15 offensive or defensive, but say whether or not that particular engagement

16 hailed back to the joint criminal purpose.

17 We can put on screen perhaps paragraph 46. And this is Gornji

18 Vakuf, starting in January 1993, leaders participating in peace talks and

19 it talks about the attacks the HVO launched on the 18th of January. This

20 finding, we say, is manifestly unreasonable. Why? Because it overlooks

21 the reality in the record that these tensions didn't just suddenly

22 descend from hell on the 18th of January, but there had been conflicts

23 predating that. Was that discussed? And those engagements, those

24 conflicts, those engagements with the armija were not - the Judges said -

25 attributable to a JCE; but yet, the 18th of January event is said to be

Page 277

1 evidence of a JCE. Does it make sense really as the only plausible

2 explanation? But particularly when you looked at the fact that that

3 engagement was resolved, that conflagration was resolved after only a few

4 days after the commencement of the JCE, without the HVO taking over the

5 entire province. Well, the Prosecution will say, Well, the HVO had won

6 some territory. Well, yes they did. But if there was a JCE to take over

7 the Banovina and they're on a role, why not take over the whole of the

8 territory? That was their aim, that was their ultimate purpose, the cat

9 was out of the bag. There was an invasion, according to the Prosecution.

10 Why not take over the Banovina? Why pause? We say that there was no

11 transformative event that is cited by the majority that will distinguish

12 the attack on the 18th of January as part of a JCE, and yet the attack on

13 the same villages, same towns, on the 11th of January as not being part

14 of a JCE.

15 Now, the Prosecution seem to be recent converts to the idea that

16 the 15th of January, 1993, amounts to a transformative event. Well, when

17 on earth was that conversion on the road to The Hague? Because in their

18 final trial brief at paragraph 8, they contested -- they contended that

19 it was April 1992. So we say no transformative event at all.

20 Your Honour, going to -- while I'm on Jablanica and -- sorry, on

21 Gornji Vakuf, Your Honours have asked some questions regarding the nature

22 and the attack. Your Honour, those answers are in our skeleton at page

23 7, and I'd refer them to you.

24 But, Your Honours, the Prosecution contended yesterday in their

25 submissions that it's clear-cut that a tank targeted a house and caused

Page 278

1 deaths. That was their response effectively - they said it was

2 clear-cut - and that the evidence was clear that it was a tank, that

3 people were not only killed when a shell hit the building, but also that

4 people kept on firing. Well, Your Honour, the Prosecution have made

5 their arguments at trial. We're looking at the appellate situation.

6 What did actually the Judges find? Firstly, in clear and unequivocal

7 terms, one would expect the Prosecution to say and accept that the Judges

8 fell into legal error because they predicated their decision on the basis

9 that shelling per se is indiscriminate. And that's as basic a legal

10 error as one can get. The majority said weapons, more specifically

11 shells, the nature of which is such that it is impossible to distinguish

12 from civilian targets.

13 That was their foundational finding. Wrong. And then, of

14 course, there's no discussion by the majority as to the type of weapon;

15 the accuracy of the weapon, the ordnance used; the proximity of the

16 legitimate military targets to the house. There's no discussion of that.

17 In fact, what there is in the evidence clearly is there is intelligence

18 reports that were not contested that were received by the HVO that there

19 was a bunker just before the house, close to the house. And the

20 Prosecution's contention - well, there's smoke coming from a chimney,

21 because there's smoke from a chimney there must be civilians - is really

22 stretching it, we say, particularly when their witness Andrew Williams

23 accepted that in the same area, on the same occasions, he knew that

24 armija soldiers or people defending villages were firing from houses. No

25 evidence that the house was marked with any symbol to say it's a

Page 279

1 protected place. We know, contrary to the Prosecution, that their

2 witnesses said trenches were dug. We know from their witnesses that they

3 said fighting started at 7.00 a.m. and the shelling took place at 12.00.

4 So it's not some kind of uncontested civilian zone. There were soldiers

5 fighting in the area that were significantly organised enough according

6 to the time-frame, 7.00 till 12.00, to keep the HVO at bay until the

7 shell was fired. But Andrew Williams is asked point blank by the

8 Prosecution about if it's a tank and he repeatedly says: It's either a

9 tank or an anti-tank missile. He doesn't confirm that it's a tank. And

10 if one goes to volume 2, I think it's page 87, it's quite interesting --

11 well, if one goes to page 88, in relation to Gornji Vakuf at

12 paragraph 348, the Judges talk about -- well, the Chamber notes, and I

13 quote:

14 "That the evidence shows in relation to Gornji Vakuf the HOV used

15 tanks, artillery, rockets, and mobile anti-tank guns."

16 Do they make that finding in relation to the question posed by

17 Your Honours in relation to Dusa? Well, let's go to paragraph 357. The

18 Chamber notes:

19 "Villages were attacked with mortar shells, heavy machine-guns

20 and artillery."

21 Conspicuous by its absence is any mention of tanks. So the

22 Prosecution contention is cherry-picking. Because it's also interesting

23 that when one looks at the testimony of Kemal Sljivo and the Judges say

24 at paragraph 344 that they give credence, not that they accept

25 unequivocally or without reservation, they gave credence to the testimony

Page 280

1 of victims testifying, namely, Kemal Sljivo, witnesses testifying before

2 the Chamber. It's important to note that witness never testified before

3 the Chamber. That witness never testified before the Chamber, as is

4 contended in paragraph 344. That was a 92 bis witness, not

5 cross-examined. A belligerent to a conflict, fighting the people that

6 are on the side of my client. No assessment of weight, no assessment of

7 credibility, misrepresenting or overlooking the reality that the witness

8 hadn't testified but was a paper witness in every sense of the word.

9 None of that is considered in the Prosecution response yesterday.

10 But, Your Honours, I have to move on. The rest of those answers

11 are in our questions -- in our written skeleton.

12 Your Honour, the evidence anyway is that belligerents defending

13 the village are either 30 metres away from the location and a hundred

14 metres away. So the Prosecution can't say that there was intentional

15 targeting, we say. Given the foundational finding that shells are

16 indiscriminate, we say, it falls to be reversed.

17 Your Honour, I'll go to P1351. And again, on that last issue, no

18 evidence at all from the Judges or from the -- that the -- HVO knew that

19 civilians were in the basement as opposed to lawful belligerents.

20 1351. Now, Your Honour, the Prosecution say that Mr. Stojic was

21 aware of the nature of this document, and we have asserted throughout

22 that it wasn't received by him. No stamp on the document. No evidence

23 it's received. And I would ask you to consider in due course, even on

24 the face of it, how it compares with P03418 and 3D03065, both of those

25 documents. One is addressed to Bruno Stojic as opposed to the Department

Page 281

1 of Defence, and the other one specifies for the attention of

2 Bruno Stojic. But, Your Honours, even assuming that document is received

3 by Stojic, it doesn't establish that the killings mentioned were

4 foreseeable. It doesn't say that they were murder or that they were

5 unlawful, as opposed to incidental and collateral. So we say the Judges

6 really were at a stretch and in fact fell into error by referring to that

7 document to somehow bolster or to find intent on the part of

8 Bruno Stojic.

9 Your Honour, when one is considering this, I think the

10 fundamental malady is that the majority seemed to approach the facts as

11 if there's only one protagonist in the area - and that's the HVO - and

12 that the arena is empty apart from the HVO and civilians, that it's a

13 blank canvas upon which they can -- HVO can draw their own agendas. And

14 the reality is far from it. There's action and reaction as true in

15 reality in the law of physics as it was at the time in that part of the

16 world. And the truth is made clear by the Prosecution in other cases,

17 and we can put on the screen the Hadzihasanovic case. It's public

18 record, it's the indictment in the Hadzihasanovic, in which the Judges --

19 in which the Prosecution contended and accepted that the ABiH was

20 engaging in massive attack in June 1993.

21 Look at the Tihomir Misic barracks. Mr. Karnavas spoke about it

22 yesterday. It was after that incident when the Muslim members of the HVO

23 attacked the Croatian members of the HVO. It was after that date that

24 the majority found that there were widespread detentions of Muslim men.

25 It was after that date that the majority found a system of deportations

Page 282

1 was introduced. It was from June, from that month, where the majority

2 found that the JCE was expanded. And, Your Honour, rather than try to

3 fit that complex arrangement of facts back to 1993, we say a reasonable

4 Trial Chamber would have considered other alternative explanations;

5 namely, action and reaction, cause and effect. And by failing to

6 consider this other reasonable option available to a reasonable Trial

7 Chamber, we say the majority fell into error.

8 Your Honour, in relation to Grounds 25 and 26 and the mens rea,

9 it's revealing that the Judges really haven't addressed the intention of

10 Bruno Stojic in the Judgement. They say at paragraph 428 that Stojic

11 intended to expel the Muslim population. That was the shared intention

12 filing. But in relation to the 20 other crimes, 21 other crimes, no

13 mention of intention, no express finding that he intended to participate

14 in a JCE, no express finding that he had the required knowledge, no

15 evidence, no mention of the fact that in a JCE an accused must intend to

16 commit the underlying crimes. And there's a manifest range of crimes,

17 from destruction of property to murder and everything in between. And

18 one may intend one particular crime and not another crime. One may

19 intend to destroy property but not intend to kill. No findings on that

20 whatsoever. And if the Prosecution say, Well, it's not necessary, one

21 can hark everything back to the original assertion that there's an

22 intention to expel the Muslim population, we say that's incorrect.

23 Because even if one takes the domination for ethnic cleansing, it doesn't

24 automatically, legally mean the same thing, that because you intend

25 ethnic cleansing, you intend murder. So this is a legal judgement. Each

Page 283

1 finding has legal significance. And yet, one is sorry to say, that those

2 type of typical findings have not been made by the majority.

3 Your Honour, in relation to question 8, I would refer you again

4 to the questions -- to the answers that are in the -- that have been

5 handed up, we say it's important -- it's very clear both in relation to

6 question 2 and Mostar that the Judges fell into error again in relation

7 to IHL and the laws and customs of war, in relation to when they found

8 that the Mostar bridge had a clear military utility and indeed was

9 essential. They couldn't then find on the facts of this case that

10 somehow its destruction amounted to a breach of those fundamental

11 principles. And to somehow say, Well, one can be compliant --

12 IHL-compliant in relation to terms of distinction and targeting but still

13 be responsible under persecution, for example, that has massive policy

14 indications that we say are not supported by the law or practice.

15 In relation to 8, question 8, Your Honour, I won't say more than

16 what's in our written answers.

17 Your Honour, the only argument or the only case I'm aware of at

18 least that the Prosecution could refer to to somehow defend the majority

19 decision - because, of course, they have the advantage on being on very

20 solid territory, they're defending clean sweep of convictions and very

21 hefty sentences - and they may say, No, the Judges are entitled to do

22 that is reasonable. Well, the first observation, the test is not whether

23 or not a particular decision is reasonable. That's not the test. The

24 test is whether it's the only option open, the only reasonable option

25 open beyond reasonable doubt, not just whether or not a particular

Page 284

1 finding is reasonable. But if one looks at Djordjevic, the Prosecution

2 seek to cite that case to you which is somewhat similar, that there

3 wasn't an express finding as to the intent in relation to underlying

4 crime, we would seek to distinguish it for a number of reasons. Firstly,

5 that case the Trial Chamber talked about requisite intent, which has a

6 difference anyway from the intent to ethnically cleanse found by the

7 majority. But that was a one-hander, there was one accused in that case,

8 and a narrow group of crimes that was alleged. Here we have six accused

9 and a very wide-ranging crimes, 21 different crimes, that are alleged in

10 the case. And that Djordjevic case, even then, Your Honours, as the

11 Appeals Chamber said it would be preferable to clearly state -- make a

12 finding of intent in relation to each crime. Here it wasn't preferable;

13 we say it was absolutely essential. The majority repeatedly deal with

14 the group as a monolithic structure. I mentioned earlier the one mention

15 of Mr. Bruno Stojic. I talked about the mention of how they described

16 this undefined group, the HZ(R)HB. But, Your Honours, some of the

17 accused may have intended all of the crimes; some, none of the crimes;

18 some may have intended one of the crimes. Your Honours can't conduct a

19 proper appellate review given the scarcity of the findings by the

20 majority. And their failure to make proper findings effectively means

21 that they failed to consider, properly consider individual criminal

22 responsibility at all.

23 Your Honours, I will skip quite a lot. In relation to Ground 15

24 again we would rest on the arguments in our brief, but if I can just talk

25 about the Mladic diaries. Because it was really the Mladic diaries that

Page 285

1 was the foundations of the majority finding that Mr. Stojic was linked as

2 an individual to the JCE, uncorroborated hearsay. Defence had no

3 opportunity to confront the sole evidence to support that finding. We

4 deal with that argument on Ground 16, but we say it is not a conjured-up

5 argument; there's real meat to it. In circumstances where the

6 Prosecution are allowed to introduce that type of evidence 18 months

7 after they close the case, to deny the Defence the right to confront that

8 evidence is really a gross abuse of discretion, and it is fatal to the

9 proper consideration of these Mladic diaries.

10 Your Honours, there has not been -- in fact, it is so serious

11 that it runs the risk of infecting this whole decision, because one can

12 aim for the stars but in human rights terms we must make sure that Trial

13 Chamber reach a minimum standard of due process. And by acting in that

14 manner and refusing the Defence leave to appeal means that an important

15 finding - upon which the guilt of Mr. Stojic was reached - has simply not

16 been addressed.

17 Your Honours, there's much more that I can say, but I have to

18 give time to my learned friend, Ms. Nozica. If, fortuitously, she

19 manages to be quicker than the time she needs, I have something more to

20 say, but with your leave.

21 Your Honour, in short, we simply say that looking at our grounds

22 in detail, you do have an unenviable task. I apologise we have 52

23 grounds; it's a lot. The grounds have substance. They deserve proper

24 consideration. It is a gargantuan task. But justice is not easy. We

25 say that Mr. Stojic, looking at the indictment itself as the vehicle for

Page 286

1 proving his culpability, has been occasioned a miscarriage of justice by

2 the majority. And we say their numerous errors of law are so pervasive

3 and so numerous that litter the entire judgement, reversible is

4 appropriate in this case.

5 Your Honour, with no further ado, I'll pass the floor, with your

6 leave, to lead counsel.

7 JUDGE AGIUS: Certainly. Thank you, Mr. Kahn.

8 MS. NOZICA: [Interpretation] Good morning, Your Honours. My

9 learned friend wanted to perhaps add something after I have finished, but

10 I'm afraid even I will not have enough time to share with you everything

11 we have prepared. We have raced against time throughout the trial, and

12 we always had difficulty fitting everything we wanted to do within the

13 time allocated; in particular, because this is a very voluminous case,

14 with many, many documents and arguments to present before the Chamber.

15 My learned friend discussed some of the irregularities applied by

16 the majority when they approached the documents and evidence as well as

17 the facts in this case. I just wanted to briefly turn to the errors made

18 by the majority as regards the JCE and the doctrine itself. I will be

19 very brief.

20 There two categories. I deal with more with theory and I will

21 try to do my best not to overlap with what my colleague has said. I will

22 discuss the theoretical aspect, a very specific dimension of the JCE as

23 found by the majority. There are two categories of errors when it came

24 to the application of the JCE standard by the majority. I will first

25 briefly summarise our arguments.

Page 287

1 First of all, the Trial Chamber misapplied the JCE as a criterion

2 to defy common criminal purpose by concluding that they share the common

3 political and military goal as sufficient to satisfy the element,

4 although in and of themselves they are not criminal. This error is

5 present in every aspect of the Trial Chamber's decision and calls for

6 reversal because the JCE described by the Trial Chamber, which was

7 allegedly spear-headed by Franjo Tudjman, Gojko Susak, and Janko Bobetko,

8 could not have existed. Indeed the only common purpose that the

9 Trial Chamber asserted that these individuals shared was the political

10 purpose of a united Croat nation, and that political purpose is the only

11 common factor in what the Trial Chamber described as a single JCE. If

12 that JCE did not exist, then the liability of Mr. Stojic would be

13 eviscerated, not only under JCE 1 but also under JCE form 3, which is

14 predicated on the existence of JCE 1.

15 Secondly, the Trial Chamber misapplied the JCE form 3 standard

16 for identifying the outer reach of criminal acts attributable to a JCE

17 member by allowing virtually any act to be deemed foreseeable in the

18 context of a war, without making a finding that each act was made in

19 furtherance of the alleged JCE 1 crimes.

20 A standard of what is foreseeable in war is as unlimited as the

21 possibilities for violence and does not provide a manageable standard.

22 In assessing the Trial Chamber's decision on these issues, the

23 Appellate Chamber reviews the findings of law to determine whether or not

24 they are correct, that is Brdjanin appeals judgement, paragraph 10; and

25 whether an error has a chance of changing the outcome of the decision,

Page 288

1 Brdjanin appeals judgement paragraph 9.

2 As I will explain shortly, the Trial Chamber was incorrect in

3 applying the JCE standard and reversal is certain to change the outcome

4 of the decision.

5 As already referenced, I will address two specific categories of

6 error in the application of JCE doctrine, but I think it is useful to

7 recall at the outset that the joint criminal enterprise doctrine has

8 been, beginning with the Tadic case, a controversial doctrine that has

9 drawn criticism, as my learned friend Mr. Kahn mentioned. Indeed, at the

10 time the Tribunal was established by the United Nations Security Council,

11 it was clear that it was not supposed to create new law. Thus, at the

12 time the Council voted, the representative of the People's Republic of

13 China, Ambassador Li Zhaoxing explained that China's vote in favour of

14 the resolution was a political position that should not be construed as

15 an endorsement of the legal approach involved. China, he said, believed

16 that an international tribunal should be established by concluding a

17 treaty so as to provide a solid legal foundation for it and ensure its

18 effective functioning, and that the Chinese delegation emphasises that

19 the international Tribunal established in the current matter can only be

20 an ad hoc arrangement suited only to the special circumstances of the

21 former Yugoslavia and shall not constitute any precedent.

22 Similarly, Ambassador Sir David Hannay of the United Kingdom

23 stated: The Statute does not, of course, create new law but reflects

24 existing international law in this field.

25 There's no need to reconsider the characteristics of the doctrine

Page 289

1 of the JCE, but we believe that it needs to be strictly limited to the

2 elements enunciated in prior case law, which all must be proven beyond a

3 reasonable doubt. In insisting on this, we are only asking this Chamber

4 to restate what it already held in the Brdjanin decision, which was

5 careful to delineate a clear set of limiting principles. The decision

6 warned that untethered from its core elements, JCE becomes an open-ended

7 concept that permits convictions based on guilt by association. Brdjanin

8 appeals judgement, paragraph 428.

9 The Brdjanin decision also addressed and squarely rejected a

10 proposal by the Prosecution team that JCE doctrine should be tailored as

11 a matter of policy to allow the Tribunal to prosecute and punish those

12 who participate in international crimes as leaders, and not only as

13 subordinates. Brdjanin appeals judgement paragraph 421.

14 As the Brdjanin decision correctly held, such policy

15 considerations are inapposite as a basis for a theory of individual

16 criminal responsibility. Accordingly, Brdjanin restated the elements of

17 JCE and re-emphasised that each element must be proven beyond a

18 reasonable doubt as to each participant, lest the doctrine be reduced to

19 absurdity. It is paragraph 428 I've already referred to.

20 First, the accused must possess the requisite criminal intent

21 which can be found only if this is the only reasonable inference on the

22 evidence. Second, the trier of fact must find that the intent was shared

23 by a plurality of persons as a common criminal purpose. Third, it must

24 be shown beyond a reasonable doubt that the accused made a contribution

25 to the criminal purpose. And finally it must be shown that the intended

Page 290

1 crime actually took place. Brdjanin appeals judgement paragraph 430.

2 The Trial Chamber purported to make all these findings, but it

3 actually revised doctrine dramatically, effectuating in the process a

4 miscarriage of justice and wreaking havoc on international criminal law.

5 In short, Mr. Stojic was convicted under, first, a theory of guilt by

6 association; and second, a theory that he - as alleged head of the

7 Defence Department of the HVO HZ HB - assumed responsibility for all acts

8 carried out by its armed forces and in its name. This occurred in three

9 principal ways.

10 First, the Trial Chamber found a JCE based on an alleged

11 geopolitical goal purportedly shared by Republic of Croatia and HVO

12 leaders of expanding Croatia's borders to create a united Croat nation,

13 which is not, in and of itself, a crime. The Defence does not in any way

14 accept that such geopolitical goal existed at any time, which has been

15 well documented through the Republic of Croatia and the HVO

16 unquestionable commitment to any of the peace proposals presented by the

17 international community. None of such proposals included expanding of

18 Croatia's borders. The Trial Chamber, however, criminalised a political

19 objective rather than finding a common criminal purpose, and then

20 identified a set of individuals who shared that political purpose as the

21 core of the JCE. Although the HVO was, certainly, not a political party

22 but a spontaneously formed self-defence organisation, it could be

23 asserted that this holding has devastating implications for political

24 parties and movements around the world, and I mean primarily such

25 political movements aiming at liberating particular territories whose

Page 291

1 ultimate goal may be to change borders.

2 Second, the judgement proposes that participation in a JCE can

3 occur through a combination of routine military orders which the HVO with

4 its structure in forming could not issue any way alleged authority to

5 conduct military operations and alleged inaction. This finding again

6 substitutes proof of a legitimate, if disfavoured, goal - being military

7 action or even aggression - for proof beyond reasonable doubt of

8 illegitimate means that are criminalised by the Statute; and it

9 substitutes the requirement that the accused make an affirmative

10 contribution to the action with a finding of purported inaction. The

11 ultimate effect is to turn what some might view in hindsight as

12 ineffective leadership or military missteps into a war crime.

13 Third, the Trial Chamber's decision erred further in applying an

14 open-ended concept of JCE 3 to exacerbate the misidentified JCE 1

15 purposes and to effectively render all members of a political or military

16 leadership criminally liable for the offences of their armed forces,

17 regardless of whether there was a causal nexus or - to put it another

18 way - foreseeability between those crimes and the alleged JCE 1 crimes

19 that constitute the individuals' alleged contribution to the JCE. The

20 Appeals Chamber is certainly aware of the positions held by Stojic during

21 the relevant period and his defences stand thereon.

22 Nevertheless, it could be said that the Trial Chamber's view

23 places political and military leaders, especially those in dire

24 circumstances such as were present in the crumbling former Yugoslavia, in

25 the impossible position of either abandoning their lawful political

Page 292

1 objectives midstream and thereby betraying those vulnerable people who

2 are the intended beneficiaries of those efforts; or risk war crimes

3 prosecution for all acts of anyone who can, in hindsight, be associated

4 with them. None of this can supported by any Tribunal precedent on JCE

5 doctrine or the Statute governing the Tribunal, and has no precedent in

6 international law.

7 The Trial Chamber found a JCE by a plurality of persons,

8 including, inter alia, Franjo Tudjman, Gojko Susak, and Janko Bobetko,

9 and further on Bruno Stojic. It is the judgement, volume 4,

10 paragraph 1231.

11 Under established precedent, the Trial Chamber was required to

12 identify a common criminal purpose to the JCE and to find that each

13 participant shared that purpose. Brdjanin appeals judgement,

14 paragraphs 429 and 430 as discussed by my learned friend Mr. Kahn. But

15 even accepting the Trial Chamber's flawed view of the facts, the only

16 purported purpose identified by the Trial Chamber that these individuals

17 each harboured and shared was to set up a Croatian entity that

18 reconstituted, at least in part, the borders of the Banovina of 1939 and

19 facilitate the reunification of the Croatian people. Judgement, volume

20 4, paragraph 24. Even -- even, I emphasise - if that were a goal shared

21 by these individuals - and the evidence shows that the reality was far

22 more complex - a JCE must involve the commission of a crime provided for

23 in the Statute of the ICTY, as stated in the Gotovina trial judgement,

24 paragraph 1953, and the Statute does not criminalise any political goal.

25 In trying to link the alleged participants to the goal of

Page 293

1 reconstituting the Banovina rather than to the goal of murder,

2 deportation, genocide, et cetera, the Trial Chambers adopted an unheard

3 of JCE doctrine, that people who join in or espouse any common goal or at

4 least any war time goal, incur the risk of criminal liability if some

5 members who share that goal commit war crimes. That was a profound error

6 as well as an absurd one. The Martic appeals judgement reaffirms that

7 political intentions are not sufficient to establish a joint criminal

8 purpose. Martic appeals judgement, paragraphs 123 and 124.

9 This principle follows from the Tadic case itself, which holds

10 that a JCE requires a common criminal purpose, not merely a common

11 purpose, for engaging in a war or politics. Other judgements of this

12 Tribunal are no different in that respect following Tadic. I just wanted

13 to remind you of the Stakic judgement and the appeals judgement in

14 Brdjanin. I believe the standards of the JCE were applied correctly in

15 light of this appeal, in particular.

16 THE INTERPRETER: Interpreter's note: Could Ms. Nozica pause for

17 a second so as to be able -- for the interpreters to be able to locate

18 that part of the text.

19 JUDGE AGIUS: One moment. You're running, Ms. Nozica, and I'm

20 being asked to draw your attention to slow down, please, and also for the

21 interpreters to catch up with what you have been saying.

22 Can we proceed?

23 MS. NOZICA: [Interpretation] Thank you, Your Honour. I am aware

24 of the time and I am also aware of the fact that if something is missing

25 from the transcript, I spoke in vain; but I will nevertheless try to slow

Page 294

1 down.

2 All of these cases demonstrate, consistent with the language of

3 the ICTY Statute, that a desire to control a territory, even by military

4 means, is not per se sufficient to establish the existence of a JCE. And

5 therefore, a finding that individuals shared the goal of creating a new

6 Banovina does not inherently involve or suggest any criminal intent.

7 The Trial Chamber did not find that all the alleged members of

8 the JCE shared a criminal purpose. To be sure, the Trial Chamber

9 identified a single common criminal purpose of domination by the HZ(R)HB

10 Croats through ethnic cleansing of the Muslim population. Judgement,

11 volume 4, paragraph 41. But it failed to find that the members of the

12 JCE shared that purpose. That is exemplified most obviously by the Trial

13 Chamber's condemnation of Tudjman, Susak, and Bobetko, who could only be

14 tied to the JCE insofar as they shared the ultimate goal of a united

15 Croatian people. And if these three individuals were not JCE members,

16 then there was no JCE. Applying the established standards referred to

17 above, the Stojic's Defence argument is that there was no other JCE with

18 or without aforesaid individuals. Indeed, these individuals were

19 expressly identified as participants in the JCE, and their alleged views

20 about a united Croat nation were evaluated at length. Judgement,

21 volume 4, paragraphs 4 to 24 --

22 THE INTERPRETER: Interpreter's correction: 6 to 24.

23 MS. NOZICA: [Interpretation] But they were never found to have

24 harboured an intent to commit a crime committed by the Statute. The

25 closest the Trial Chambers came to such a finding is at volume 4,

Page 295

1 paragraph 43, which states that:

2 "As of December 1991, certain leaders of Croatia, including

3 Franjo Tudjman, believed that to achieve the political purpose" of a

4 reunited Croatian people "it was necessary to change the ethnic makeup of

5 territories claimed to form part of the HZ(R)HB."

6 Judgement, volume 4, paragraph 43.

7 But this finding is vague and equivocal, alleging a belief that

8 it was necessary to change the ethnic makeup of territories without

9 discussing what this meant, whether it represented any plan of action,

10 but what mean it would be accomplished, or - most fundamentally -- why it

11 was necessary. It thus falls well short of a finding beyond a reasonable

12 doubt of an intent to carry out a criminal purpose.

13 The equivocation in this finding is a result of an absence of

14 evidence to support an actual finding of criminal intent. Exhibit P00089

15 the Trial Chamber cited says nothing about forceable removable of

16 civilians from their homes, but records another individual - not

17 Tudjman - discussing boundaries and aspirations of a Croat state. There

18 is no criminal activity discussed or criminal intent referenced.

19 Moreover, the Trial Chamber admitted in the very next paragraph,

20 judgement, volume 4, paragraph 44, that the evidence does not support a

21 finding that there was an agreement concerning a common criminal design

22 prior to mid-January 1993.

23 JUDGE AGIUS: [Previous translation continues]... please. We have

24 to stop for a moment so that we give the opportunity for a change of the

25 tapes because we are running out of time.

Page 296

1 You have five minutes that we have to give you, which will

2 represent the time when we were having a short discussion in private

3 session and that means we change the tape now and you have to conclude in

4 five minutes. Thank you.

5 [Trial Chamber and Registrar confer]

6 JUDGE AGIUS: All right. I'm told we have to take a break

7 anyway, so you will get your five minutes at the beginning of the next

8 session and that will be it. Thank you.

9 We'll resume in half an hour.

10 --- Recess taken at 11.30 a.m.

11 --- On resuming at 12.01 p.m.

12 JUDGE AGIUS: Yes, Ms. Nozica. You have five minutes and then

13 I'll give the floor to the Prosecution.

14 MS. NOZICA: [Interpretation] Your Honours, I know, you've told me

15 I have five minutes left. I have one request, though. Could I get

16 additional ten minutes from the time allowed for the reply for

17 Mr. Stojic? Because that's the time I really need to finish. If I can't

18 get it, then I will complete within five minutes.

19 JUDGE AGIUS: I don't quite know whether you are -- I am

20 understanding you. Are you trying to trade five minutes with ten

21 minutes? Yeah, you are. I thought so, yeah. All right. I ...

22 [Trial Chamber confers]

23 JUDGE AGIUS: Exactly. Judge Pocar is suggesting you can reduce,

24 you can have 10 minutes now but you reduce the five minutes from your

25 reply. Instead of having half an hour, you will have 25 minutes.

Page 297

1 MS. NOZICA: It's okay. Thank you.

2 JUDGE AGIUS: All right. Go ahead.

3 MS. NOZICA: Thank you.

4 [Interpretation] So within the context of identifying the common

5 criminal purpose sufficient for a JCE, this finding refutes any notion

6 that a common criminal purpose had been achieved prior to January 1993,

7 so evidence from December 1991 cannot be sufficient to show a JCE.

8 The other reference cited to support a finding of Tudjman's

9 intent to participate in a JCE is at paragraph 522 of volume 4 of the

10 Trial Chamber's Judgement, which also occurred prior to the JCE time

11 period, which is to say 11 September 1992. And although Mr. Tudjman is

12 selectively quoted as calling for Croatia to be cleansed, this reference

13 to Croatia is to the Republic of Croatia, not majority-Croat proportions

14 of Bosnia, as the underlying Exhibit P466 makes clear; whereas cleansing

15 meant repelling Serbian forces from inside Croatia, which has nothing to

16 do with cleansing any ethnic group from either Bosnia-Herzegovina or

17 Croatia. Beyond these items, the only other references to these

18 individuals from the correct time-frame are: One, a statement by

19 President Izetbegovic to Tudjman warning against ethnic cleansing - and

20 no indication that Tudjman disagreed. That's Judgement volume 4,

21 paragraph 52. And, second, a letter from an international organisation

22 copying Tudjman and stating that the organisation would not help Croat

23 peoples move from Serbian-controlled territory of HVO and again no

24 indication of Tudjman's view or response, much less action. Judgement

25 volume 4, paragraph 54. Tudjman's silence does not prove that he, let

Page 298

1 alone Susak or Bobetko, intended to effectuate a common criminal purpose

2 - Tadic appeals judgement, paragraph 195 - or made any contribution to

3 such a purpose. All of this amounts to far less than the showing of

4 criminal purpose in the Gotovina Appeals Chamber decision which rejected

5 a finding of a JCE based on ambiguous transcripts, lawful efforts to help

6 civilians temporarily depart from a war zone, and a series of political

7 speeches by Franjo Tudjman. That's Gotovina, paragraphs 89 to 98.

8 The gravamen of the offence of the supposed participants in the

9 JCE, then, was not ordering, planning or inciting crimes, but for the

10 sake of argument, in allegedly adopting a view about where the borders of

11 a nation emerging from a failed state should fall. This is simply

12 insufficient to establish a JCE. Moreover, as noted above, neither the

13 Republic of Croatia nor the HVO ever undertook any activities which could

14 be deemed as a redrawing of internationally recognised borders of Bosnia

15 and Herzegovina. The evidence presented during the trial proved just the

16 contrary.

17 Briefly, therefore, the Trial Chamber's legal findings in this

18 regard are not an anomaly nor are they trivial. In a nutshell, the

19 Trial Chamber's factual findings at best amount to, one, a relatively

20 inchoate dream or goal by Tudjman and other Croat leaders for a united

21 Croat nation that included territory within Bosnia-Herzegovina; and, two,

22 the alleged efforts by some alleged members of the common enterprise in

23 support of that goal, including by military intervention in

24 Bosnia-Herzegovina; and, three, the acts of some HVO soldiers that

25 amounted to war crimes. That is pure guilt by association. The fact

Page 299

1 that some HVO members and units committed criminal acts does not

2 establish a common criminal purpose for the entire HVO and this theory

3 was repudiated as the basis for the JCE in Brdjanin.

4 The Trial Chamber erred in not considering the extent in which

5 the HVO's -- were legitimate, that is, not criminal. The Trial Chamber

6 therefore applied the wrong standard, and the standard it applied has

7 grave implications for political parties and movements which frequently

8 must contend with extremist elements in their own ranks. Indeed, the

9 Trial Chamber's holding in places the burden on all the other members and

10 leadership to abandon the party of movement immediately [as interpreted].

11 Everything said so far demonstrates that the Trial Chamber's

12 findings on Stojic and the other accused cannot be affirmed, but that is

13 only the first of the Trial Chamber's many legal errors. Its second

14 error is of the same ilk. It found the JCE based on alleged intent to

15 engage in military action, the alleged authority to take or prevent war

16 crimes that occurred as part of the actions of others, and the alleged

17 inaction upon knowledge of ongoing war crimes. But even more

18 fundamentally, the Chamber may and should resolve the issue squarely on

19 the law because a legitimate application of JCE doctrine should not

20 permit Mr. Stojic's conviction on this basis. The HVO was primarily a

21 Defence force which neither showed any intention to commence military

22 conflict, nor it could be blamed for outbreak of such conflict.

23 Therefore, the following doctrine could not be applied thereto.

24 Nevertheless, the Stojic Defence points to the JCE doctrine which should

25 not allow criminalisation of the intent to engage in military action for

Page 300

1 the same reason it does not criminalise the intent to achieve a

2 geopolitical goal. The Statute of the ICTY does not cover such an action

3 which is not listed in sections 2, 3, 4, or 5. Moreover, it is critical

4 to understand that Mr. Stojic was a civilian with no military role. He

5 was not a member of the armed forces.

6 As to the purpose of promoting reconciliation and healing, the

7 dissenting Judge below aptly asked: How will we achieve reconciliation

8 if we place everyone in the same boat? In a situation that devolved into

9 warfare and ethnic cleansing as tragically as the situation did in the

10 former Yugoslavia, it a matter of simple logic that some people acted

11 dishonourably. Some failed to exhibit exemplary, courageous, and

12 virtuous behaviour, and these will have much to answer for in their

13 consciences. Indeed, some of these may be liable under the civil or

14 criminal law in the courts of the nations with jurisdiction over the

15 relevant territory. But theories of liability that can draw into an

16 international criminal Tribunal anyone who potentially could have done

17 more to stop the violence and bloodshed risks being brought without

18 limit. This in turn means that the individuals actually held

19 responsibile can be viewed as political victims rather than perpetrators

20 of war crimes and the Tribunal itself as existing to make a political

21 point rather than to serve the ends of blind justice. That was the

22 notion rejected in Brdjanin and it should be rejected again here. Thus

23 the Appeals Chamber should reject the Trial Chambers Court's -- the Trial

24 Court's JCE 1 analysis and overturn Mr. Stojic's conviction on this

25 basis.

Page 301

1 Thank you, Your Honours.

2 JUDGE AGIUS: Thank you.

3 We now move to the Prosecution.

4 MR. KHAN: Mr. President, while that is being done, could I

5 clarify one matter.

6 JUDGE AGIUS: Yes.

7 MR. KHAN: I misspoke when I was speaking about the presidential

8 transcripts. It is correct that the first one that I mentioned wasn't

9 addressed at all, but in relation to P1883, page 12, and P2466, they were

10 footnoted in the judgement but not discussed or evaluated. So I just

11 wanted to be accurate. Thank you.

12 JUDGE AGIUS: Thank you.

13 Yes, Prosecution. Now, you have, of course, one hour and we

14 shouldn't have problems with the tape. So please proceed. Thank you.

15 MS. GOY: Good afternoon, Your Honours. My name is Barbara Goy

16 and I will responding today to Your Honours' question number 1 and

17 Grounds 54 and 55 of Stojic's appeal relating to the international nature

18 of the armed conflict and the state of occupation. And Mr. Menon will

19 afterwards respond to the grounds of appeal relating to JCE

20 responsibility and answer questions 4(c) and 8.

21 But before we begin our response, I would just like to briefly

22 address a procedural matter in relation to the Defence written answers to

23 Your Honours' questions. Your Honours, these written submissions were

24 presented by the Defence as skeleton arguments. This implied that the

25 Defence would be covering them in their oral argument and it is our

Page 302

1 understanding that Your Honours ruled on this basis, that there would be

2 an aid to follow the oral submissions. It turns out, however, having now

3 listened to the oral submissions, that the Defence has only covered a

4 handful of the points from the submissions and it is clear that the

5 Defence did relying on these written submissions to supplement their oral

6 submissions. We can also see this from paragraph 1 of the written

7 submissions which say that they are made in order to manage the time

8 available for oral argument.

9 This was not the instruction in Your Honours' preparation order

10 which sought oral answers to the questions and no additional briefings.

11 This puts, of course, the Prosecution at a disadvantage having to respond

12 in a two-hour slot not only to the submissions on the grounds but also

13 answer the questions. We would therefore ask Your Honours to disregard

14 the written submission inasmuch as they are not covered during the oral

15 argument.

16 JUDGE AGIUS: Madam, they are not going to be considered as part

17 of the records, full stop.

18 MS. GOY: Thank you, Your Honour. Can we then just seek a

19 clarification whether you would also permit the Prosecution to submit

20 additional written submissions.

21 JUDGE AGIUS: Yes, on the same conditions, of course.

22 MS. GOY: Thank you very much.

23 JUDGE AGIUS: Thank you.

24 MS. GOY: On that note, we will then start with responding orally

25 to Your Honours' question 1.

Page 303

1 Your Honours have asked whether as a legal matter the Trial

2 Chamber erred in inquiring into the existence of a state of occupation on

3 the basis that there was no armed conflict in some places and on some

4 dates or whether such inquiry was necessary on the basis that people in

5 and property on occupied territory are afforded additional or other

6 protection under the Geneva Conventions.

7 The short answer is that this inquiry was only necessary for

8 Count 19, the grave breach of extensive destruction of property under

9 Article 2.

10 Let me take Your Honours through the reasons for this response.

11 For grave breaches of the Geneva Conventions under Article 2 of

12 the Statute, two levels need to be distinguished: The general

13 applicability of the Geneva Conventions and the protection of persons and

14 property under the Geneva Conventions depending on the specific breach in

15 question.

16 For the general applicability of Article 2 of the ICTY Statute,

17 it was not necessary to inquire whether a state of occupation existed.

18 According to Common Article 2 of the Geneva Conventions, the

19 Geneva Conventions apply when there is an international armed conflict or

20 a state of occupation. Once an armed conflict of an international nature

21 is established, international humanitarian law applies throughout the

22 territories of the parties to the conflict. The Appeals Chamber held

23 this already in the 1995 Tadic Appeals Chamber decision on jurisdiction,

24 in paragraphs 68 and 70, and confirmed it in the Kordic Appeal Judgement

25 in paragraph 319.

Page 304

1 The Appeals Chamber in Kordic said:

2 "The Tadic appeal decision on jurisdiction explains that the very

3 nature of the Geneva Conventions, particularly, Geneva Conventions 3 and

4 4, dictates the application throughout the territories of the parties to

5 the conflict. Any other construction would substantially defeat their

6 purpose."

7 The Trial Chamber in this case, however, disregarded this law

8 when it made piecemeal findings on the existence of the armed conflict

9 for the purpose of establishing whether Article 2 of the Statute applies.

10 While as a matter of law this approach is incorrect, the Prosecution has

11 not appealed it because it did not impact the verdict. The Chamber

12 stated that it received a substantial amount of evidence pertaining to

13 the existence of an armed conflict throughout BiH. That's volume 3,

14 paragraph 514. And it also determined that the conflict was

15 international in nature; volume 3, paragraph 568. But then it concluded

16 that an armed conflict existed, in particular municipalities at

17 particular points in time, such as in Prozor municipality in October 1992

18 and in April and July 1993. That's volume 3, paragraph 514.

19 Based on this piecemeal approach it then found it necessary to

20 inquire into the state of occupation rather than reaching the conclusions

21 that the Geneva Conventions III and IV applied throughout the territories

22 of the parties to the conflict.

23 It is this erroneous understanding that led the Chamber to hold

24 in volume 1, paragraph 575 -- volume 3, excuse me, paragraph 575:

25 "It is, however, necessary to establish the existence of an

Page 305

1 occupation when crimes are alleged under Article 2 of the Statute in

2 places and dates for which the Chamber has been unable to establish the

3 existence of a conflict between the ABiH and the HVO."

4 This brings me to the second half of the question, whether the

5 Chamber was required to look into the question of occupation to determine

6 the protection of persons or property for the purpose of the specific

7 grave breach in question.For the grave breaches regime under Article 2 of

8 the Statute to apply, the persons and property must be protected by the

9 Geneva Conventions. And here we need to distinguish between the crimes

10 against persons and the crimes against property.

11 In relation to persons, Article 4 of Geneva Convention IV defines

12 protected persons as those who are either in the hands of a party to the

13 conflict of which they are not nationals or in occupied territory. Thus,

14 persons are not only protected in occupied territory, but also when they

15 are in the hands of a party to the conflict of which they are not

16 nationals. And nationality, as we know since Tadic, can be understood as

17 allegiance.

18 As the Trial Chamber recognised in volume 1, paragraph 101, with

19 reference to the ICRC commentary to the Geneva Conventions, the

20 expression "in the hands of" has a very broad meaning and is limited to

21 being directly in enemy hands as a prisoner. The ICRC commentary states:

22 "It simply means that the person is in territory which is under the

23 control of the power in question." That's page 47.

24 Thus for the grave breaches regimes against persons, the

25 Chamber did not have to inquire into the question of occupation.

Page 306

1 As regards the protection of property, the Chamber distinguished

2 in paragraph 106 of volume 1 between property that is generally protected

3 under the Geneva Conventions regardless of location, such as civilian

4 hospitals, and property that only enjoys the protection when it is

5 located in occupied territory. However, in relation to property that

6 does not enjoy general protection, Geneva Conventions IV distinguishes

7 between protection against appropriation and protection against

8 destruction. Protection against appropriation does not depend on the

9 property being located in occupied territory. This protection is listed

10 in Article 33 of Geneva Convention IV which says: "Pillage is

11 prohibited." And this Article 33 is in the section applicable to

12 territories of a party to the conflict and to occupied territory. The

13 Chamber acknowledged this in volume 1, paragraph 129, where it said:

14 "This prohibition applies equally, moreover, to the territory of the

15 parties to the conflict and to occupied territories."

16 Protection against destruction, on the other hand, applies only

17 in occupied territory. The protection is listed in Article 53 of

18 Geneva Convention IV which is in the section dealing with occupied

19 territory. This means only for the extensive destruction of property not

20 justified by military necessity and carried out unlawfully and wantonly,

21 Count 19, the Chamber was required to determine whether property which

22 did not enjoy general protection was located in occupied territory. But

23 even here, if no state of occupation was found, the same crime base would

24 be covered by Count 19, wanton destruction as a war crime, under Article

25 3 -- covered by Count 20, excuse me, I misspoke, wanton destruction under

Page 307

1 Article 3.

2 Your Honours, there is a third level to the analysis and I'm

3 going to touch upon that briefly. I'm only mentioning this third level

4 for sake of completeness on the question of the law because it doesn't

5 arise on the facts of this case.

6 This third level relates to the details of the protection of

7 persons and property.

8 For displacement crimes, the border of occupied territory

9 amounts to a border for deportation as the Chamber recognised in volume

10 3, paragraph 575.

11 Occupation can also be relevant because certain conduct may be

12 specifically permitted in occupied territory. For example, in relation

13 to appropriation of property, Article 55 of Geneva Convention IV contains

14 specific rules for occupied territory authorising the occupying powers

15 under certain conditions to requisition of private property, such as food

16 and medical supplies, to meet the needs of the occupying forces of the

17 administration. The Chamber recognised this as well in volume 1,

18 paragraph 130.

19 But on the facts of this case, this third level did not require a

20 finding of occupation because when we look through the Chamber's findings

21 on deportation, they did not hinge on the notion of occupied territory

22 and none of the special circumstances permitting certain conduct in

23 occupied territory were made out.

24 Unless Your Honours have any questions in relation to our answer

25 on question 1, I would then turn to Ground 54 of Stojic's appeal in

Page 308

1 relation to the international nature of the armed conflict.

2 The international nature of the armed conflict not only matters

3 because a number of crimes were charged under Article 2 of the Statute.

4 The international nature of the armed conflict also matters because it

5 accurately reflects what happened in this case: The role Croatia played

6 in the events which form the basis for this case. The Trial Chamber's

7 conclusion that the conflict between the armed forces of Herceg-Bosna,

8 the HVO, and the armed forces of the Republic of Bosnia and Herzegovina,

9 the ABiH, was international in nature is reasonable and consistent with

10 the Tribunal's conclusions in other cases such as Blaskic, Kordic, and

11 Naletilic and Martinovic.

12 The Chamber reasonably found that the conflict was international

13 on two grounds: Direct intervention of Croatia's armed forces in the

14 armed conflict and Croatia's overall control over the HVO. Each of these

15 grounds alone is sufficient to render the conflict international. I will

16 address both in turn and start with Croatia's direct intervention.

17 The Chamber reasonably concluded that Croatia, through its own

18 forces, directly intervened in the conflict between the HVO and the ABiH.

19 The evidence shows that Croatia's armed forces were not only present at

20 the relevant times in the relevant locations as the Defence suggests but

21 were also directly participating in the armed conflict. The fact that

22 Croatia’s leadership attempted to hide this further confirms Croatia's

23 direct involvement.

24 The Chamber reviewed the evidence in the locations and at the

25 times where it had found an armed conflict existed according to its

Page 309

1 piecemeal approach, and it reasonably concluded that Croatia's armed

2 forces were directly involved in the conflict against the ABiH at the

3 relevant times. This covers the entire period from the attack in Prozor

4 in October 1992 to the armed conflict in Mostar in early 1994.

5 The evidence relied upon by the Chamber as well as other

6 evidence on the record show that Croatia's armed forces were not only

7 present but directly involved in the armed conflict against the ABiH.

8 For example, the Chamber relied on numerous pieces of evidence to

9 show that the attack on Prozor in October 1992 was carried out by a

10 combination of HVO forces and Croatia's army such as Exhibit P1542,

11 according to which very strong forces of HVO and Croatian army attacked

12 the town with tanks and heavy artillery. An ECMM report of 3 June 1993

13 confirms that the Filipovic Brigade from Zagreb took part in the HVO

14 offensives against Jablanica, an offensive which we know took place in

15 April 1993 and led to a number of crimes which form part of the common

16 plan. Exhibit P02627.

17 In April 1993, ABiH commander Arif Pasalic complained to UNPROFOR

18 and the EU that two different HV brigades were stationed in the region

19 Capljina, Stolac, Dubrava and carried out combat activities directed at

20 the ABiH; Exhibit P02043. And Capljina and Stolac fall within the

21 indictment municipalities.

22 On 15 July 1993, Petkovic, at the time chief of the HVO

23 Main Staff, sent a report to the Defence Department of the HVO Main Staff

24 which states under the heading "Our forces": "Out of 700 men from the

25 battalion of the HV 5th Guards Motorised Brigade, 400 men are for attack.

Page 310

1 During the attack on 10 July 1993 in the area of -- south of Mostar

2 Gnjojnice, its task was to cut off the Muslim forces and take Gnjojnice."

3 Exhibit P03466.

4 So the HV, the Army of Croatia, carried out an offensive

5 operation against the ABiH in territories claimed by the JCE members.

6 Later, in October 1993, Croatia's army 5th Guards Brigade

7 reported to the Croatian Ministry of Defence that an order issued by the

8 chief of the Croatian army Main Staff, the 3rd Motorised Battalion has

9 been transferred to Ploce and upon its arrival it has been deployed in

10 offensive operations in the area of Mostar battle-field. The battalion

11 numbered 367 men. Exhibit P06037.

12 In January 1994, the commander of the 1st Company of the

13 3rd Military Police Battalion of the HVO in Buna, in Mostar municipality,

14 sent the following report to the Herceg-Bosna Ministry of Defence:

15 "Immediately after receipt of this order," and then follows a

16 description of the order, "we established contact with the command of the

17 Croatian army located in our zone of responsibility."

18 Exhibit P07742.

19 This shows there was a command of the Croatian army in Mostar

20 municipality, an area which falls within the common plan.

21 And the report further states: "We encountered full

22 understanding on their part and they helped us a lot by ordering their

23 soldiers to remove all insignia, proving their membership in the Croatian

24 army."

25 Your Honours, this evidence shows that the Croatia army units

Page 311

1 were not only present but involved in the armed conflict against the

2 ABiH. That there might not have been evidence in relation to direct

3 involvement in all relevant municipalities does not affect the

4 reasonableness of the Chamber's conclusion. The conclusion remains

5 reasonable because the character of the conflict is determined overall,

6 as the Chamber correctly pointed out in volume 3, paragraph 518.

7 Turning to my second point. The evidence also confirms that

8 Croatia's leadership was trying to hide the direct involvement of

9 Croatia's army in this conflict.

10 The evidence shows that insignia of Croatian army were removed -

11 we have seen this in the exhibit I have just mentioned - and that the

12 label of "volunteers" was used to hide the involvement. Let me say a few

13 words about the use of "volunteers."

14 Croatian army forces were present in Bosnia on order of Croatia.

15 In particular, the presence and involvement of units cannot be explained,

16 as the Defence tries to argue, by individuals who volunteered their

17 services to the HVO. In fact, Praljak in his reply in paragraph 7 points

18 out that the units could not go out of Croatia without supreme

19 commander's order. And as we've seen from the exhibits I mentioned in

20 the beginning of my submissions, units of Croatia's army were

21 participating in the armed conflict.

22 Croatian armed forces were in BiH on order of Croatia regardless

23 of whether they could volunteer to serve in BiH rather than in Croatia.

24 Even if their presence was voluntary in BiH in the sense that they

25 volunteered to serve in BiH rather than in Croatia, once they so

Page 312

1 volunteered, they were then deployed by Croatia, they were involved in

2 the armed conflict on order of Croatia. That these so-called volunteers

3 were sent by Croatia is confirmed by Croatian President Tudjman himself.

4 And I'm referring to a conversation between Tudjman and, among others,

5 Croatia's Minister of Defence Gojko Susak and the HVO Main Staff General

6 Janko Bobetko on 6 November 1993, where we see Tudjman planning military

7 operations in province 10 of the Vance-Owen Peace Plan.

8 Tudjman says:

9 "Kiseljak has become important to us so that we can link up with

10 Busovaca. Now at this moment it is necessary also that we should try to

11 link up Kiseljak, Kresevo with Busovaca, Novi Travnik, that is, with the

12 entire territory here, at once take control of Gornji Vakuf for the

13 purpose of linkage with Novi Travnik ..."

14 And then he continues: "We have to do all this, of course, under

15 the cover of sending volunteers."

16 That's Exhibit P06485, page 2, the presidential transcript of

17 6 November 1993.

18 The cover of volunteers is also evident from another conversation

19 between Tudjman, Susak, and Bobetko a few weeks later, on

20 23 November 1993. Here we see Tudjman outraged at the exposure of

21 Croatia's direct involvement in the armed conflict between the HVO and

22 the ABiH. Tudjman says:

23 "Thirdly, how, Minister of Defence and chief of the main

24 headquarters, could you have issued an order confirming that Croatia is

25 waging war, that it is directly involved, and I constantly emphasise ...

Page 313

1 you should have build this up as something voluntary, that these are

2 volunteers who have left the Croatian army, who fight there under HVO

3 command, and here you are appointing the main headquarters."

4 That's Exhibit P06839, page 8. I repeat the exhibit number,

5 Exhibit P06839, page 8 -- Exhibit P06831, page 8, apologies. The

6 presidential transcript of 23 November 1993.

7 This shows Tudjman's anger at how his subordinates could have

8 created a document which so plainly shows Croatia's directly involvement

9 when this should have been done under the cover of volunteers.

10 That these were not real volunteers also explains why Croatia

11 paid the salary of Croatian army personnel deployed in BiH as the Chamber

12 found in volume 3, paragraph 529. Croatia would not be paying real

13 volunteers that cut theirs ties with the Croatian army and volunteered

14 their service in the HVO.

15 Your Honours, by using the label of "volunteers," Croatia's

16 leadership thus tried to hide Croatia's direct intervention, an

17 intervention which is amply supported by the evidence. On the basis of

18 the totality of the evidence, the Chamber's finding that Croatia directly

19 intervened with its armed forces in the conflict between the HVO and the

20 ABiH is reasonable.

21 Let me now turn to the second factor, overall control.

22 The Chamber also reasonably found that the conflict was

23 international because of Croatia's overall control over the HVO as an

24 organised, hierarchically structured group. The Chamber relied on

25 numerous manifestations of that control in -- but perhaps the clearest

Page 314

1 indication of Croatia's overall control is its involvement in organising,

2 coordinating, and planning military operations against the ABiH. And I

3 will limit my submissions today to this factor.

4 The evidence shows that Croatian President Tudjman organised and

5 planned military actions in BiH against the ABiH. And I will limit

6 myself to the discussion of three meetings in November 1993.

7 On 5 November 1993, in a meeting between Tudjman and

8 representatives of Herceg-Bosna, in which Prlic, Praljak and

9 Herceg-Bosna's president Mate Boban were present, Tudjman said:

10 "We must organise ourselves so as to defend the line we have

11 managed to conquer and have received permission to keep at the

12 international conference, i.e., the line between Novi Travnik, Vitez and

13 Busovaca."

14 And after having received information about the situation around

15 Vares, Tudjman gave the following instruction: "Transfer what remains of

16 the troops from Vares to Kiseljak and push through to Busovaca."

17 That's Exhibit P06454, pages 20 and 62, the presidential

18 transcript of 5 November 1993.

19 And what these actions are aimed at becomes clear when Tudjman

20 said: "The problem then boils down to our securing in the border [sic]

21 sense the borders of the Republic Herceg-Bosna as favorably as we can."

22 That's on page 80.

23 So Tudjman expresses the view that it is Croatia that has to

24 fight for Herceg-Bosna's borders.

25 The next day, on 6 November 1993, in a meeting with, among

Page 315

1 others, Susak and Bobetko, we see Tudjman and General Bobetko planning

2 military operations in Gornji Vakuf and Novi Travnik.

3 Bobetko: "In the next eight days, we have to take Gornji Vakuf

4 and in that way solve that -- better to say create completely different

5 operational conditions for our further inroads, defensive and offensive."

6 "Tudjman: We are in agreement here, General, please, what have

7 you got ready in the way of manpower and material to give them so that

8 they can do that?"

9 And then follows an explanation by Bobetko which concludes with:

10 "We will give forces, we will take out the front -- we will take out of

11 the front the least reinforced ... say a thousand armed men and resort to

12 the liquidation of Bugojno and then we'll go onwards.

13 "Tudjman: Liquidate?

14 "Bobetko: Take.

15 "Tudjman: Gornji Vakuf, surely.

16 "Bobetko: Yes, Gornji Vakuf, and blockade this."

17 That's Exhibit P6485, pages 10 and 11, presidential transcript of

18 6 November 1993.

19 On 10 November 1993, Tudjman confirms this instruction in

20 relation to Gornji Vakuf in a meeting with Prlic and others, where he

21 says:

22 "You know that I sent a new commander and ordered that new

23 volunteers be sent to defend the Vitez line, that is to say, Novi

24 Travnik, Vitez, Busovaca, Kiseljak, and to bring this Gornji Vakuf to an

25 end, and later Bugojno."

Page 316

1 That's Exhibit P06581, page 18, the presidential transcript of

2 10 November 1993.

3 This one sentence confirms that Tudjman gave instruction for

4 military action, that Tudjman ordered so-called volunteers to be sent,

5 and that Tudjman sent commanders to be involved in the conflict.

6 Your Honours, although I've highlighted three presidential

7 transcripts of November 1993, this overall control was present throughout

8 the conflict. We can see this, for example, in the fact that from autumn

9 1992 to 24 July 1993 Praljak had de facto command authority over the HVO

10 armed forces although he had no formal position then in the HVO but was

11 Croatia's assistant minister of defence. Volume 4, paragraph 482.

12 And Your Honours will hear more about it tomorrow during the

13 Prosecution's response to Praljak's appeal.

14 To conclude, Your Honours, the Chamber's conclusion that Croatia

15 exercised overall control over the HVO is reasonable and Stojic's

16 Ground 54 in relation to the international armed conflict should be

17 dismissed.

18 This brings me to the last part of my submission. Unless

19 Your Honours have questions, that would be Ground 55 on occupation.

20 The Chamber's conclusion that a state of occupation existed in

21 eight municipalities for a certain period of time was reasonable.

22 Croatia occupied these municipalities by proxy through its overall

23 control over the HVO. The HVO in turn not only had the ability to

24 control the territory but did, in fact, exercise its authority over the

25 territory. It exercised its authority either because it had attacked the

Page 317

1 relevant areas with HVO armed forces before or because HVO armed forces

2 carried out mass arrests of the Muslim population in the respective

3 municipalities. The HVO issued orders to the local population, plundered

4 and destroyed Muslim property. That the HVO was able to behave in this

5 way unhindered shows that the legitimate local government was

6 rendered incapable of functioning.

7 In a case of occupation by proxy or agency, two different forms

8 of control need to be distinguished: Croatia's control over the HVO and

9 the HVO's control over the territory that is found to be occupied. And I

10 will first address Croatia's control over the HVO before turning to the

11 HVO's control over the territory.

12 Croatia occupied the eight municipalities in BiH by proxy because

13 forces on the ground, the HVO, can be considered organs of Croatia acting

14 on behalf of Croatia in the sense that their acts can be attributed to

15 Croatia.

16 The Appeals Chamber in Tadic determined that control by a state

17 over organised and hierarchically structured forces may be of an overall

18 character. The Appeals Chamber made this finding for the purposes of

19 determining the international nature of the conflict but the underlying

20 reason similarly applies to occupation as it is a question of whether the

21 acts of the forces can be attributed to a state or party to the armed

22 conflict. The Chamber thus correctly relied on Croatia's overall control

23 over the HVO as the applicable legal test, in volume 1, paragraph 96.

24 And as I discussed before, the Chamber reasonably concluded that Croatia

25 did exercise overall control over the HVO.

Page 318

1 As regards the HVO's control over the territory, the Chamber

2 correctly focussed on the HVO's ability to exercise authority over the

3 territory in line with customary international law set out in Article 42

4 of the annex to The Hague -- of the annex to the 1907 Hague Convention.

5 Contrary to what the Defence suggests, the actual exercise of authority

6 is not necessary.

7 But Your Honours whether the ability to exercise authority is

8 sufficient is not a question that arises on the facts of this case. The

9 Chamber's findings and the evidence on the record show that the HVO did

10 exercise authority over the territory and it did so in lieu of the local

11 sovereign. I will address both aspects.

12 The evidence shows that the HVO was not only able but actually

13 did exercise its authority in the relevant locations at the relevant

14 times. The HVO, through its military, exercised the authority by

15 carrying out mass arrests, by issuing orders to the local population.

16 For example, in Prozor, which the Chamber found occupied from

17 August 1993 until December 1993, Muslim women, children, and elderly were

18 kept at various locations in Prozor municipality and could not move about

19 freely. Volume 2, paragraph 117. An ECMM report of 10 August 1993

20 states that most of the Muslim population is under house arrest. Exhibit

21 P09619.

22 Another example, in Stolac, which was occupied in July and August

23 1993, the HVO military and military police arrested women, children, and

24 elderly and detained them first in a shop and then in a school building.

25 Volume 3, paragraph 937. And the HVO exercised its authority by forcibly

Page 319

1 displacing the Muslim population. For example, the women, children, and

2 elderly who were detained in the school were held there for three weeks

3 and then transported to Buna in Mostar municipality and from there they

4 had to walk to Blagaj. Volume 3, paragraph 937. Almost 1.200 Muslims

5 were displaced from Stolac at that time. Volume 3, paragraph 939.

6 Thus the Chamber's finding and the evidence show that the HVO did

7 exercise authority over the relevant municipalities and it did so as a

8 hostile force. Contrary to what the Defence suggests, the HVO was not

9 the legitimate government and its armed forces, the HVO military, were a

10 hostile army.

11 In September 1992, the BiH Constitutional Court declared

12 Herceg-Bosna unconstitutional. It annulled all its founding legislation,

13 including Herceg-Bosna's decree on armed forces. That's volume 4,

14 paragraph 426, citing Exhibit P -- volume 1, paragraph 426, citing

15 Exhibit P00505.

16 In any event, Your Honours, this is occupation by agency and

17 there's no suggestion that Croatia had a sovereign title to the parts of

18 BiH in question.

19 That an armed conflict was going on at the same time does not

20 undermine a finding of occupation either because there was no actual

21 combat in the relevant areas which could undermine HVO's control over the

22 territory. This is in line with one of the guide-lines set out in the

23 Naletilic Trial Judgement on occupation in paragraph 217, guide-lines

24 which the Trial Chamber in this case endorsed in paragraph 88. This

25 guide-line says:

Page 320

1 "The enemy's forces have surrendered, been defeated, or

2 withdrawn. In this respect, battle areas may not be considered as

3 occupied territory. However, sporadic local resistance, even

4 unsuccessful, does not affect the reality of occupation."

5 That is Naletilic trial judgement paragraph 217 endorsed by the

6 Prlic trial judgement in volume 1, paragraph 88.

7 In each of the locations the -- that were found to be occupied,

8 the ABiH was either defeated, had withdrawn or offered no resistance

9 which was capable of undermining the HVO's control. That some of the

10 occupation lasted only a short period of time, such as in Prozor from 24

11 to 30 October 1992, does not undermine the Chamber's conclusion either.

12 There's no minimum time period for occupation. The Eritrea-Ethiopian

13 Claims Commission, for example, accepted that a few days of military

14 occupation could establish occupation. Your Honours will find that in

15 our response to Stojic's appeal.

16 That in some of the places the occupation did not follow an armed

17 attack and invasion is similarly irrelevant. As set out in Article 2,

18 paragraph 2 of Geneva Convention IV:

19 "The Convention shall also apply to all cases of partial or total

20 occupation of the territory of the high contracting party, even if the

21 said occupation meets with no resistance."

22 Turning lastly to the flip side of occupation, the incapacity of

23 the legitimate local government to function.

24 The legitimate BiH local government was incapable of functioning.

25 This is inherent in the Chamber's findings that the HVO was able to

Page 321

1 freely destroy or steal Muslim property. The legitimate authority in BiH

2 was the government of the Republic of Bosnia and Herzegovina headed by

3 Izetbegovic. Volume 1, paragraph 432 through 433. And, therefore, the

4 legitimate local government was the Municipal Assembly recognised by that

5 government and not any local HVO. As I mentioned before, in

6 September 1993, the BiH Constitutional Court declared Herceg-Bosna

7 unconstitutional and annulled all its founding legislation. Volume 1,

8 paragraph 426. Therefore, the legitimate Bosnian authorities rejected

9 Herceg-Bosna's authority and consequently also its structures on the

10 local level. Therefore, the Defence's arguments that in some

11 municipalities the civilian HVO was already the local government and it

12 remained unchanged does not undermine the state of occupation.

13 In some municipalities, such as Prozor, where there was still a

14 legitimate local government alongside the HVO government, they were

15 rendered incapable of functioning when the HVO military took over control

16 with the attack. For example, in Prozor, with the attack on October --

17 23 October 1992. The Chamber found that around 20 and 21 October 1992,

18 so a few days before the attack, the Prozor municipal staff sent requests

19 for assistance to Jablanica. Volume 2, paragraph 33, Exhibit 2D00061.

20 On 23 October, the Prozor HVO president demanded that BiH Muslims

21 immediately accept HVO political and military control. Volume 3,

22 paragraph 38. When that did not happen, the HVO army assisted by the HV

23 attacked Prozor town. Volume 3, paragraphs 38 through 41. And HVO

24 thereafter occupied the town of Prozor from 22 to 30 October.

25 In other areas, the Croats had already established political

Page 322

1 control before the Chamber found a state of occupation. Many were

2 Croat-majority locations where the Croats had won the 1990 elections.

3 The Defence argues that, in particular, in relation to Capljina, Ljubuski

4 and Stolac, that this undermines a finding of occupation, that the Croats

5 have the majority already before in these municipalities. But,

6 Your Honours, winning the elections on the municipal level did not allow

7 the Croats to replace the BiH municipal government with the local HVO

8 government, a local government which is not accepted by and answering to

9 the legitimate BiH government.

10 I will address the facts in Capljina and Stolac in a bit more

11 detail leaving aside Ljubuski because there are no findings on count 19,

12 extensive destruction, in Ljubuski, and therefore it wouldn't have any

13 impact.

14 In relation to Capljina, the Defence pointed to the fact that the

15 mayor of the municipality also became the president of the municipal HVO.

16 This was correct. Moreover, until April 1993, the HVO and the ABiH

17 fought side by side on the territory against Serb forces. Volume 2,

18 paragraph 2053.

19 But we have to consider what happened in April 1993. On 2

20 April 1993 an appeal for peace was signed by local leaders representing

21 the Muslims in Capljina. Exhibit P01794. However, in April, the HVO

22 arrested the Muslim men in Capljina including members of the ABiH, volume

23 3, paragraph 2075, which shows the Muslim representatives were

24 disregarded. And, again, following Petkovic's order on the 30 June 1993,

25 the HVO conducted a campaign of mass arrests of the Muslims in Capljina.

Page 323

1 Volume 2, paragraphs 2079, 2080.

2 The finding that Capljina was occupied in July and through

3 September 1993 was reasonable because the HVO exercised authority and the

4 local BiH government was not able to function.

5 Similarly, in Stolac, a Croat mayor was elected in the 1990

6 elections. Here, the Serbs controlled Stolac from April 1992. Volume 2,

7 paragraph 1890. The Croat mayor left Stolac when the Serb army arrived

8 in April 1992 and then resumed his responsibility once they left in

9 mid-June 1992. Volume 2, paragraph 1890. On 1 July 1992, a Muslim Croat

10 Crisis Staff was organised, volume 2, paragraph 1891, but after some time

11 the Croats stopped co-operating and the Crisis Staff was replaced by the

12 Stolac HVO. Volume 2, paragraph 1892. And then in April 1993, the HVO

13 attempted to force the ABiH troops to leave the municipality, and on

14 19 April, the HVO disarmed and placed 183 members of the ABiH in

15 detention. Volume 2, paragraph 1896.

16 The finding that Stolac was occupied in July and August 1993 was

17 therefore reasonable as the HVO had established authority in lieu of the

18 local BiH government.

19 To conclude, Your Honours, the Trial Chamber was reasonable in

20 finding that occupation existed, based on the HVO's exercise of authority

21 in the locations, its issuance of orders to the Muslim population, orders

22 that were, in fact, followed. The mass arrests and displacements, the

23 destruction and plunder of Muslim property show that the legitimate local

24 government was not able to function. Stojic Ground 55 should be

25 dismissed.

Page 324

1 Unless Your Honours have questions in relation to Ground 55, I

2 would hand over the podium to Mr. Menon.

3 JUDGE AGIUS: Thank you. You have exactly ten minutes remaining.

4 MR. MENON: Good afternoon, Your Honours.

5 This morning, Your Honours, the Defence failed to deal with

6 Stojic himself. They didn't tell you who he was. They didn't talk about

7 what he knew and they didn't talk about what he did. Stojic was not a

8 political victim as the Defence have portrayed him this morning. As the

9 head of the Defence Department, Stojic was a powerful figure who had the

10 authority to hold HVO perpetrators accountable for the crimes they

11 committed. Stojic knew about HVO crimes, but he allowed Muslims to be

12 victimised over and over and over again by HVO forces.

13 Stojic didn't just fail to hold perpetrators accountable, though,

14 Your Honours. The Chamber reasonably found Stojic played a role in HVO

15 operations in Gornji Vakuf, in Mostar, in Capljina, and in Vares,

16 operations in which crimes were committed against Muslims.

17 The HVO operations in West Mostar, which Stojic planned, resulted

18 in mass arrests and expulsions of Muslims. As a result of these

19 operations, thousands of Muslims were sent to East Mostar, where there

20 was insufficient food, insufficient water, and insufficient medical care,

21 where there was a daily and intense HVO shelling and sniping campaign,

22 and where there was inadequate humanitarian aid because Stojic hindered

23 the delivery of such aid.

24 Stojic's involvement in HVO operations, the role he played in

25 obstructing humanitarian aid, and his willingness to allow Muslims to be

Page 325

1 victimised by HVO forces over and over and over again demonstrates that

2 the Chamber reasonably concluded that Stojic shared and significantly

3 contributed to the common criminal purpose.

4 In my submissions this afternoon, Your Honours, I'm going to

5 begin by addressing Stojic's authority and then I'm going to deal with

6 Stojic's shared intent and his contributions to the common criminal

7 purpose, and when I do that, I'll address questions 4(c) and 8 in

8 Your Honours' order for the preparation of the appeal hearing. I'll

9 conclude, time permitting, by addressing Defence arguments concerning the

10 existence, membership, and the ultimate purpose of the JCE.

11 Turning then to Stojic's authority. He was, as I said, the head

12 of the defence department, he was powerful, he had authority, and that

13 authority is reflected in a variety of factors that the Chamber

14 established. It's reflected in the high-level negotiations in which

15 Stojic participated. It's reflected in the role Stojic played in

16 formulating defence policy during HVO government meetings, but most of

17 all, Your Honours, it is reflected in the control Stojic exercised over

18 the armed forces, the military police, and HVO detention facilities. And

19 I'll focus on Stojic's control over the armed forces and the military

20 police.

21 Your Honours, the Chamber's reasonable conclusion was that Stojic

22 exercised command and effective control over the armed forces and the

23 military police. Because he exercised effective control, Stojic had the

24 material ability to prevent and punish their crimes. And there were a

25 number of factors that the Chamber relied upon to establish Stojic's

Page 326

1 command and effective control. The Chamber's analysis is set out between

2 paragraphs 299 and 320 of volume 4 of the judgement.

3 What those factors show is that Stojic played a fundamental role

4 in the establishment and organisation of the armed forces and the

5 military police. He made high-level appointments within the armed forces

6 and the military police. He designated members of the armed forces to

7 participate in cease-fire negotiations. He was responsible for

8 mobilising, arming, feeding, clothing and paying the armed forces and the

9 military police. And he could tell members of the armed forces and the

10 military police what to do by issuing orders to them, and they in turn

11 kept him informed of what they were doing. All of those factors,

12 Your Honours, show how broad Stojic's control was. All of those factors

13 are consistent with the high-level position Stojic held within the

14 military hierarchy. He was at the top. He was the member of government

15 responsible for the armed forces.

16 JUDGE AGIUS: You have four minutes left.

17 MR. MENON: Thank you, Your Honour.

18 The Main Staff and the military police administration were within

19 his defence department. He could tell members of the armed forces and

20 the military police what to do and he could control how they did it. He

21 was the boss. Stojic's authority, Your Honours, was not narrow. The

22 evidence the Chamber relied upon showed that he exercised broad control.

23 The authority he possessed and exercised added up to one thing. It added

24 up to command and effective control. This was a straightforward equation

25 for the Chamber to solve and it solved it correctly. The Chamber

Page 327

1 reasonable concluded Stojic commanded and exercised control over the

2 armed forces and the military police.

3 I'm going to turn to Stojic's shared intent and contributions.

4 I'm going to focus on Stojic's role in HVO operations and his failure to

5 make a serious effort to stop crimes against Muslims. And I'm going to

6 begin with the Gornji Vakuf operations which you heard about briefly this

7 morning.

8 What happened in Gornji Vakuf? Well, beginning on the 18th of

9 January, 1993, the HVO violently attacked villages in Gornji Vakuf

10 municipality, arrested Muslims and burnt down Muslim homes. The chamber

11 reasonably concluded that Stojic planned the operations in Gornji Vakuf

12 municipality.

13 Why is the Chamber's conclusion reasonable? Four reasons,

14 Your Honours. First, the operations in Gornji Vakuf municipality were

15 carried out to enforce the government's 15 January ultimatum to the ABiH

16 to subordinate to the HVO or leave Bosnian Croat-claimed territory.

17 That's volume 4, paragraphs 125 to 127, 131, and 142.

18 Second, Stojic was the one who was responsible for implementing

19 that ultimatum. Volume 4, paragraph 304.

20 Third, Stojic ordered Petkovic and Coric to implement the

21 ultimatum. Volume 4, paragraph 304 as well.

22 And, fourth, the Main Staff official whom Stojic sent to manage

23 the situation in Gornji Vakuf, a man named Miro Andric, was the one who

24 delivered ultimatum to ABiH representatives and ordered that force be

25 used in the municipality after the ABiH rejected the ultimatum. That's

Page 328

1 volume 2, paragraphs 338 to 339, and 341, as well as volume 4,

2 paragraphs 125 to 126. All of these signs point in one direction; they

3 point to Stojic. And all these signs point to one answer about Stojic's

4 role in the Gornji Vakuf operations; he played an important role. And in

5 keeping with his deep involvement in those operations, Stojic reported on

6 them to the government. Volume 4, paragraphs 127 and 300.

7 Your Honours, if that is a convenient time. I will be moving on

8 to question 4(c).

9 JUDGE AGIUS: Thank you. And we will reconvene this afternoon at

10 2.30 or quarter to 3.00. 2.45, you are correct, Judge Meron.

11 2.45. Thank you.

12 --- Luncheon recess taken at 1.14 p.m.

13 --- On at 2.44 p.m.

14 JUDGE AGIUS: Yes, you may resume. And you have one hour.

15 MR. MENON: Thank you, Your Honour.

16 Before I continue, I just want to make a correction on the

17 transcript. It's transcript page 68, line 2. There was a reference to

18 the constitutional court decision, Exhibit P00505, and the correct date

19 is September 1992, not September 1993. Again, it's September 1992.

20 So I left off, Your Honours, talking about the Gornji Vakuf

21 operations and the Chamber's finding concerning Stojic's involvement in

22 those operations and that leads me to question 4(c) in Your Honours'

23 order. And I'm going to address a part of that question. That part

24 relates to Stojic's receipt of Zeljko Siljeg's report of the 28th and the

25 29th of January, 1993, Exhibit 1351. You've asked the parties to address

Page 329

1 the issue of who was privy to the contents of this particular report.

2 The Chamber found that Stojic received this report as well as two

3 other reports from Siljeg concerning the Gornji Vakuf operations. That's

4 at paragraph 336 of volume 4. All three reports, Your Honours, Exhibits

5 P1351, P1206, and P1357, contained information about violent crimes

6 committed by the HVO during the Gornji Vakuf operations. And it was

7 reasonable, Your Honours, for the Chamber to conclude that Stojic

8 received these reports. The Defence have referred to the absence of a

9 stamp. It doesn't show otherwise. It doesn't show that the Chamber was

10 unreasonable to conclude that Stojic received those three reports.

11 Why was it reasonable? I'm going to give you four reasons why it

12 was reasonable.

13 Reason 1, Siljeg's reports were addressed to Stojic's Defence

14 Department.

15 Reason 2, Stojic was deeply involved in the operations that were

16 discussed in the reports. Refer you back to my earlier submissions

17 concerning the ultimatum and his role in implementing that ultimatum.

18 Reason 3, there was a system, Your Honours, within the HVO which

19 depended upon Stojic receiving information about military operations

20 because he had a responsibility to provide the government with

21 information about the military situation on the ground. I refer

22 Your Honours to volume 4, paragraphs 91 and 300.

23 And reason 4, Stojic clearly was receiving information about the

24 Gornji Vakuf operations because he updated the government about those

25 operations. Volume 4, paragraph 127.

Page 330

1 So, Your Honours, the Prosecution submission is that the Chamber

2 reasonably concluded that Stojic received Exhibit P1351 as well as

3 Exhibits P1206 and P1357.

4 I'm going to move on to Mostar, another operation in which Stojic

5 played a very important role. HVO operations in West Mostar,

6 Your Honours, began on 9th of May, 1993, and they continued throughout

7 Stojic's participation in the JCE.

8 Beginning on 9th of May, between 1500 and 2500 Muslims, men,

9 women, children, and elderly, were forced out of their homes and taken to

10 Heliodrom detention centre. While many Muslims were allowed to return to

11 their homes, this was just temporary. Because by the end of May 1993,

12 Muslims were being forced from their homes and across the confrontation

13 line into East Mostar. And these expulsions, they continued in

14 June 1993, they continued in July 1993, they continued in August 1993.

15 As the Chamber's analysis in volume 2 demonstrates, the expulsions

16 continued throughout Stojic's participation in implementing the common

17 criminal purpose.

18 What took place in West Mostar was organised violence. Organised

19 violence that the Chamber reasonably concluded Stojic participated in

20 planning.

21 Now in Grounds 31 and 33 of their appeal the Defence challenge

22 that conclusion. They haven't discussed it this morning but they have

23 challenged it in Grounds 31 and 33 of their appeal. But, Your Honours,

24 when the evidence that the Chamber relied upon is considered together,

25 pieces of evidence that it relied upon fit together as neatly as pieces

Page 331

1 of a puzzle, a puzzle that shows that Stojic participated in planning the

2 West Mostar eviction operations. Now there are four pieces to this

3 puzzle. I'm going to take you through those four pieces.

4 Piece number one is the evidence showing that Stojic presented

5 himself to the outside world as if he had played a role in planning the

6 operations in Mostar.

7 When Stojic spoke to the BBC in May 1993, and international

8 representatives on 17th July 1993, he spoke as if he was intimately

9 familiar with HVO objectives and the means by which those objectives

10 would be achieved in Mostar. Volume 4, paragraphs 346, 348, 353, and

11 361. He presented himself as if he had played a role in planning those

12 operations.

13 Piece number two. Piece number two is Stojic's high-level

14 position. This is piece number two because the way Stojic presented

15 himself when speaking to the BBC in May 1993 and with international

16 representatives on 17 July 1993 was consistent with his leadership role.

17 It was Stojic's job to know what the armed forces were going to do in

18 Mostar. And the other pieces of this puzzle, pieces three and four,

19 confirmed that the way Stojic presented himself was the way things

20 actually were.

21 Piece number three are the reports Stojic received relating to

22 the HVO's eviction operations in West Mostar, reports the Defence claim

23 Stojic never received. That's in Ground 33 of their appeal. But the

24 reports were personally addressed to Stojic. On 14 June 1993, Stojic

25 received a report informing him that evictions in West Mostar were

Page 332

1 accompanied by killings, beatings and rapes. That report is discussed at

2 paragraph 351 of volume 4 and paragraphs 868 and 870 of volume 2.

3 On the 5 July, 1993, another report was sent to Stojic, a report

4 listing the homes of Muslim families to be raided. A report the Chamber

5 relied upon to conclude that expulsion operations were organised and

6 carried out building by building in West Mostar. A report sent to Stojic

7 personally to keep him informed of the progress of the eviction

8 operations and that report is discussed at paragraph 897 of volume 2 and

9 paragraph 352 of volume 4.

10 Your Honours, as Muslims were evicted from flats in Mostar, those

11 flats were assigned to members of the HVO armed forces and the military

12 police as well as Croatian families who arrived from other

13 municipalities. That's from paragraphs 824, 827, and 876 of volume 2;

14 and paragraph 929 of volume 4. And Stojic received information about

15 this component of the eviction operation as well. Exhibit P2608, which

16 the Chamber discussed at paragraph 351 of volume 4, is a report that

17 Stojic received on the 2nd of June, 1993, in which he was informed that

18 members of the Ludvig Pavlovic Special Purposes Unit had occupied vacated

19 flats in Mostar.

20 Your Honours, beyond the reports Stojic received concerning the

21 expulsion operations in West Mostar, beyond his high-level position and

22 beyond the way in which Stojic presented himself, there's Witness DZ's

23 evidence, and this is piece number four of the puzzle. Witness DZ's

24 evidence was that Mate Boban's assistant, and you will recall that

25 Mate Boban was the president of Herceg-Bosna, Mate Boban's assistant

Page 333

1 Vladimir Pogarcic identified Stojic as the one in charge of the ethnic

2 cleansing campaign 234 in Mostar. Volume 4, paragraph 354. Witness DZ's

3 well-corroborated evidence is another piece of the puzzle, Your Honours,

4 that fits just right.

5 The Chamber concluded that Stojic participated in planning the

6 expulsion operations in West Mostar. Chamber also found that Stojic

7 played a role in HVO operations in Capljina and Vares. I won't be

8 addressing those operations. We rely on the arguments in our response

9 brief.

10 I want to move on, Your Honours, to Stojic's failure to stop

11 crimes against Muslims. Stojic had the authority to repress crime by HVO

12 forces but he didn't do anything. And the Chamber reasonably relied on

13 that finding to conclude that Stojic shared and significantly contributed

14 to the common criminal purpose. Stojic never issued meaningful orders to

15 halt the crimes against Muslims. His high-level position gave him a

16 platform from which he could condemn crimes. Stojic condemned crimes

17 against Croats. You have an example of that at paragraph 421 of volume

18 4. But Stojic never spoke out when it came to crimes against Muslims.

19 He did the opposite. He denied HVO responsibility and commended and

20 praised known perpetrators. And in that way, Stojic allowed HVO

21 perpetrators to continue victimising Muslims.

22 Stojic was certainly well-informed of crimes against Muslims.

23 The Chamber's reasonable finding shows Stojic received reports of HVO

24 crimes from internal channels within the HVO. He also received

25 information from international representatives, international

Page 334

1 representatives who approached Stojic to discuss their concerns about the

2 eviction of Muslims, volume 4, paragraph 350; who spoke to Stojic about

3 the shelling and sniping campaign being carried out against East Mostar,

4 volume 4, paragraph 359, 367, and 748 to 749; and international

5 representatives who approached Stojic to secure access to East Mostar so

6 that humanitarian aid could be delivered to the population that was

7 trapped there, volume 2, paragraph 1236. Yet despite all that he knew,

8 Stojic failed to make a serious effort to stop crimes against Muslims.

9 Now, in their brief, Defence have argued that the Chamber was

10 wrong to reach that conclusion and that's at -- those are Grounds 23.3

11 and 33.2.

12 I'm going give you four examples, Your Honours, which demonstrate

13 that the Chamber was right. Stojic failed to make a serious effort to

14 stop crimes against Muslims.

15 Example one. Stojic never dealt with the crimes he learned of at

16 the Heliodrom or other HVO detention facilities. Volume 4,

17 paragraphs 395 to 396 and 407. As far as the Heliodrom is concerned,

18 Stojic received a lot of information concerning the terrible conditions

19 at that facility.

20 Now this is Exhibit P4352. This is just one of the reports that

21 Stojic received concerning the Heliodrom. There were other reports.

22 Those are discussed at paragraphs 388 and 391 to 392 of volume 4. This

23 report was sent to Stojic on 20 August 1993 by the Heliodrom warden,

24 Stanko Bozic. In Ground 37 of their appeal, the Defence argue that

25 Stojic never received this report, but, Your Honours, it was reasonable

Page 335

1 for the Chamber to conclude that he did because the report is personally

2 addressed to Stojic.

3 This is an excerpt from page 1 of the report and, as you can see,

4 Bozic refers to the ICRC's objections concerning the use of detainees for

5 forced labour and the poor conditions of confinement at the Heliodrom.

6 This is an excerpt from page 2 of the report where Bozic says that:

7 "After the Red Cross's departure, we were not able to remedy

8 these wrong-doings. On the contrary, the number of wounded and killed at

9 the workplace is increasing by the day."

10 He asks Stojic to "please help us to resolve this problem."

11 Did Stojic try and resolve the problems at the Heliodrom? Did he

12 order that Muslims who were unlawfully detained be released and allowed

13 to return to their homes? The Chamber found that Stojic had the power to

14 do that at paragraph 915 of volume 1. Did he order that the conditions

15 at the Heliodrom be improved? Did he insist that detainees not be taken

16 to perform dangerous work on the front lines? No, he didn't. He didn't

17 do any of those things. He took no measures to rectify the situation at

18 the Heliodrom. That's at paragraph 395 of volume 4. Stojic didn't do

19 anything about these crimes because he had no intention of stopping

20 crimes against Muslims.

21 Example two. Chamber reasonably found that Stojic exercised

22 control over HVO snipers in Mostar. Stojic controlled HVO snipers, knew

23 they were targeting civilians in East Mostar and he allowed it to happen.

24 Volume 4, paragraphs 365 and 368 to 370.

25 He allowed it to happen because he had no intention of stopping

Page 336

1 crimes against Muslims.

2 Example three. Stojic lied to international representatives when

3 they confronted him about HVO involvement in evictions in West Mostar.

4 On the 16th of June, 1993, Stojic met with ECMM representatives who told

5 him about the evictions taking place in West Mostar and told him that the

6 HVO was responsible for those evictions. Volume 4, paragraphs 350 and

7 422.

8 Now, two days before that meeting, Stojic received this report

9 and this is Exhibit P2770. I mentioned this report when I spoke about

10 Stojic's involvement in the West Mostar expulsion campaign. As you can

11 see, the original B/C/S language version appears on the right side and

12 the English translation appears on the left.

13 Chamber found at paragraphs 868 and 870 of volume 2 and

14 paragraphs 351 and 416 of volume 4 that Stojic received this report on

15 the 14th of June, 1993. You see Stojic's -- you see Stojic's first name

16 Bruno at the upper right-hand side of the document.

17 The Defence challenges the Chamber's finding that Stojic received

18 this document in Ground 33 of their appeal. But, Your Honours it was

19 addressed to Stojic personally so it was reasonable for the Chamber to

20 conclude that he received it. And in addition to the fact that the

21 report was personally addressed to Stojic, the Chamber heard witness

22 testimony confirming that Stojic received reports generated by the HVO

23 Main Staff's electronic operations centre, the CED. That's at

24 paragraph 870 of volume 2 and paragraph 736 of volume 1.

25 Your Honours, the CED was responsible for preparing this report.

Page 337

1 As you can see, that abbreviation appears on the upper left-hand side of

2 the document. Stojic received this report.

3 And this is -- this slide magnifies the text of that report. And

4 as can see, the report refers to events in the Dum neighbourhood of

5 West Mostar. The report refers to evictions of Muslims, forceable moves

6 into apartments, rapes, beatings, maltreatment, and "indications of new

7 murders of civilians." And the report refers to the perpetrators who are

8 members of the HVO.

9 Now, it's important to remember, Your Honours, that in addition

10 to this report, it's important to remember that Stojic wasn't sitting in

11 some far away place when the expulsion campaign in West Mostar was taking

12 place. He was in the thick of it. He was based in West Mostar. And the

13 relevant citations on that are collected at paragraph 261 of our response

14 brief. Stojic knew about the violent evictions in West Mostar but yet

15 despite what he knew, Stojic told ECMM representatives that the HVO

16 wasn't involved. Stojic lied to ECMM representatives because he had no

17 intention of stopping crimes against crimes.

18 That takes me to example four. Stojic praised and commended

19 Mladen Naletilic's troops although he knew they were responsible for

20 evictions and violent crimes in West Mostar.

21 Naletilic, Your Honours will recall, was convicted by this

22 Tribunal. He was the commander of a military formation called the

23 Convicts Battalion. It's volume 1, paragraph 817. In August 1993,

24 Stojic told a SpaBat official that he had confidence in Naletilic's

25 Convicts Battalion because they were well trained. Volume 4,

Page 338

1 paragraph 418.

2 In September 1993, Stojic officially commended Naletilic and his

3 Convicts Battalion. Also volume 4, paragraph 418.

4 Stojic delivered his praise and commendation although he knew

5 that members of Naletilic's Convicts Battalion were responsible for

6 crimes against Muslims in West Mostar.

7 I want to take you back to the report from 14th of June, 1993,

8 Exhibit P2770, that I just showed you a moment ago.

9 Who were the perpetrators of the crimes documented in the report?

10 The report, as you can see, identifies Vinko Martinovic who was convicted

11 with Naletilic at this Tribunal. Martinovic was the commander of the

12 Vinko Skrobo anti-terrorist group which was under Naletilic's command

13 volume 1, paragraph 818.

14 The other named perpetrators in the report were members of the

15 Vinko Skrobo unit. Volume 4, paragraph 416.

16 So Stojic knew that members of Naletilic's Convicts Battalion

17 were responsible for crimes in West Mostar as of June 1993, yet he

18 praised and commended them a few months later.

19 Stojic praised and commended them because he had no intention of

20 stopping crimes against Muslims. He wanted to encourage perpetrators to

21 continue committing crimes, and he succeeded in doing that because

22 members of Tuta's Convicts Battalion, Naletilic's Convicts Battalion,

23 continued to victimise Muslims in West Mostar throughout Stojic's

24 participation in the JCE. That's volume 2, paragraphs 980 to 982, 984,

25 and 986 to 987.

Page 339

1 Now, on Ground s 23.1 and 23.3 of their appeal, the Defence has

2 argued that crime couldn't be effectively opposed and so for that reason

3 the Chamber was wrong to find that Stojic didn't make a serious effort to

4 stop crime.

5 Your Honours, this wasn't a situation where the prevailing

6 circumstances prevented Stojic from acting to put a stop to the awful

7 things that were happening to Muslims. This was a situation where Stojic

8 created the conditions in which Muslims were victimised and then made the

9 situation worse through inaction, lies, and encouragement to

10 perpetrators.

11 I'm just wondering, Your Honour, how many time I have left?

12 JUDGE AGIUS: You have -- 36 minutes.

13 MR. MENON: Okay, thank you.

14 I wanted to turn to Your Honours' questions now. I want to

15 address question 8 in Your Honours' order for the preparation of the

16 appeal hearing.

17 Your Honours have asked whether in convicting Stojic, Praljak,

18 and Petkovic of the crime of unlawful infliction of terror on civilians

19 under Count 25 of the indictment, the Trial Chamber made the necessary

20 findings in relation to their specific intent to spread terror among

21 civilian population and what the impact would be if the Appeals Chamber

22 found that the Trial Chamber failed to provide a reasoned opinion in this

23 regard. I'll deal with that question as it pertains to Stojic.

24 Your Honours, I'm not going to stand up here and tell you that

25 the Chamber made an explicit finding that Stojic possessed the specific

Page 340

1 intent to spread terror. Because it didn't, it didn't make an explicit

2 finding. But this judgement, like any other trial judgement, needs to be

3 read as a whole. And in his submissions this morning, Mr. Khan ignored

4 that. Paragraphs 468 and 470 of the Djordjevic appeal judgement stand

5 for that very proposition.

6 And on the issue of whether Stojic possessed the specific intent

7 to spread terror, there's only one reasonable reading of the judgement

8 when it's read as a whole. And that one reasonable reading is that it is

9 inherent in the judgement that Stojic possessed the specific intent to

10 spread terror. It's inherent because the Chamber's findings read as a

11 whole demonstrate that Stojic was heavily involved in the Mostar

12 operations. Stojic, Your Honours, was so heavily involved that when the

13 Chamber found that the HVO possessed the specific intent to spread terror

14 at paragraph 1692 of volume 3, one of the people within the HVO that the

15 Chamber must have been referring to was Stojic. And when the Chamber

16 found that Stojic shared the common criminal purpose and held him

17 responsible for the crime of terror at paragraphs 428 and 431 of volume

18 4, the Chamber had clearly satisfied itself that Stojic possessed the

19 specific intent to spread terror. So what it comes down to,

20 Your Honours, in the Prosecution's submission, are the findings which

21 show that Stojic was heavily involved in the Mostar operations. So let

22 me tell you about those findings.

23 Stojic exercised effective control over the forces that shelled

24 and sniped at East Mostar day after day until his participation in the

25 JCE ended. He not only controlled those forces. He knew exactly what

Page 341

1 they were doing. He knew because he received reports from international

2 representatives. Relevant evidence is cited at paragraph 359 of volume

3 4. He knew because he spoke to international representatives about the

4 plan of action for Mostar. Based on Stojic's remarks, international

5 representatives surmised that the attacks, the deprivation, and the

6 isolation in East Mostar would force the Muslims of East Mostar out of

7 Mostar entirely. Volume 4, paragraph 362, and volume 2, paragraph 1246.

8 Your Honours, that was enough to establish Stojic's knowledge of

9 what was taking place in East Mostar. But on top of the reports and on

10 top of the remarks about the plan in Mostar, as I mentioned earlier,

11 Stojic was based in West Mostar, he had a front-row seat for the horror

12 show taking place in East Mostar, and yet despite all that he knew,

13 Stojic allowed shelling and sniping attacks to take place.

14 And he didn't just allow the attacks to take place. Stojic

15 aggravated the terrible situation in East Mostar. How did he do that?

16 He aggravated the situation in East Mostar by planning expulsions of

17 Muslims from West to East Mostar, talked about those expulsions,

18 expulsions which provided HVO forces with more and more civilians to

19 target and terrorise. And he aggravated the situation in East Mostar by

20 obstructing the delivery of humanitarian aid to East Mostar which

21 exacerbated the deprivation and the misery which prevailed there. Volume

22 2, paragraph 1231, and volume 4, paragraph 372.

23 So, Your Honours, that takes me back to where I began with the

24 answer. The inescapable conclusion when the findings related to Stojic

25 are read as a whole is that when the Chamber says at paragraph 1692 of

Page 342

1 volume 3 that the HVO possessed the specific intent for terror, one of

2 the people within the HVO that the Chamber must have been referring to

3 was Stojic. And when the Chamber found Stojic shared the intent for the

4 common criminal purpose and found him responsible for the crime of

5 terror, the Chamber clearly satisfied itself that Stojic possessed the

6 specific intent for terror. That's the only way to read this judgement

7 given the findings that the Chamber made about Stojic's role in the

8 events in Mostar. And when it is inherent in the judgement that a

9 finding has been made as it is in this instance, that's sufficient.

10 But if Your Honours find that the Chamber failed to provide a

11 reasoned opinion, then Your Honours shouldn't leave Stojic's

12 responsibility for the crime of terror unadjudicated. The Prosecution

13 would urge you to review the findings in the judgement and the evidence

14 on the record, and when you do that, you'll reach the same inescapable

15 conclusion that we say is inherent in the judgement, that Stojic

16 possessed the specific intent for terror.

17 I want to move on, Your Honours, to the Defence's factual

18 challenges relating to the existence of the common criminal purpose.

19 JUDGE MERON: May I ask a question.

20 JUDGE AGIUS: Yes.

21 JUDGE MERON: Counsel, I don't have the case in front of me. But

22 I seem to recall that in the Galic appeal judgement we dealt specifically

23 with the modalities of specific intent in the context of the crime of

24 terror under customary law, and Article 51, paragraph 2, of

25 Additional Protocol I. I also believe that the Appeals Chamber went to

Page 343

1 considerable lengths to attribute the intent to the specific accused

2 rather than attributing to a force.

3 I have listened carefully to you, but you are saying that, well,

4 if the Trial Chamber forgot to do it or didn't do it is the job of the

5 Appeals Chamber, which, of course, did not listen to the whole evidence

6 so we should make a finding of specific intent if the Trial Chamber did

7 not. And if the Appeals Chamber is not persuaded, and I'm not suggesting

8 that it will not be, but if is not persuaded by your sort of holistic

9 attitude by saying the force must have acted pursuant to intent, so

10 Mr. Stojic must be a part of it.

11 MR. MENON: Do you want me to respond to that, Your Honour?

12 My response is that simply that it is well established in the

13 jurisprudence that judgements do need to be read as a whole, and what we

14 are saying is that this particular finding is inherent in the

15 judgement. It is inherent in different places, it's inherent in the

16 finding in volume 3, and it's inherent in the finding that Stojic shared

17 the common criminal purpose and what -- the Prosecution's submission is

18 that when you put everything together, that it is abundantly clear it --

19 it is inherent that the Chamber has satisfied itself that Stojic

20 possessed the specific intent for terror.

21 But if Your Honours are not persuaded, then the task of

22 evaluating the findings and the evidence is a practice that the Appeals

23 Chamber has regularly engaged in in order to make findings where it has

24 been unsatisfied that a Trial Chamber has made the appropriate finding,

25 and so we do not think there would be any unfairness or there would be a

Page 344

1 divergence from practice to do so in this particular instance. That's

2 the Prosecution's submission.

3 If there are no other questions, I will move on.

4 JUDGE AGIUS: Please proceed.

5 MR. MENON: Okay. Your Honours, I'm going to turn now, as I

6 said, to the Defence's factual challenges relating to the existence of

7 the common criminal purpose. None of the arguments that the Defence have

8 made confront the Chamber's analysis. They've spoken about it at length,

9 but they haven't confronted what the Chamber found and the basis on which

10 the Chamber found what it did. At the heart of the Chamber's analysis,

11 Your Honours, was the very obvious pattern of criminal activity targeted

12 at Muslims during and after HVO operations, a pattern that began

13 following the government's ultimatum to the ABiH on 15 January 1993 and

14 the ensuing attacks and crimes in Gornji Vakuf municipality.

15 From mid-January 1993 until April 1994, across Herceg-Bosna, the

16 HVO carried out violent attacks targeting Muslim civilians, evicted

17 Muslims from their homes, arrested Muslims en masse, mistreated Muslims

18 in detention, expelled Muslims to ABiH-held territory, and by the summer

19 of 1993, used release from detention as a means of expelling Muslims to

20 third countries. This wasn't a question of some criminal acts as the

21 Defence indicated this morning. This was a pattern of crime that

22 resulted in the depletion of the Muslim population. As the Chamber

23 observed at paragraph 57 of volume 4, between September and October 1993,

24 the Muslim population of Ljubuski municipality went from 2381 to 826, the

25 Muslim population of Capljina municipality went from 14085 to 3852, and

Page 345

1 the Muslim population of Stolac municipality from 8093 to 0.

2 Now, the pattern of HVO crimes against Muslims was at the centre

3 of the Chamber's analysis, but it was also complemented by the organised

4 influx of Croats into Herceg-Bosna.

5 The Chamber's conclusion that there was a common criminal purpose

6 wasn't just about this two-way process, though, this two-way process of

7 removing Muslims from Herceg-Bosna and bringing Croats into Herceg-Bosna

8 because the process of changing Herceg-Bosna's ethnic composition also

9 aligned with the statements that JCE members made. Mate Boban's

10 statement at the 27 December 1991 presidential meeting, which my learned

11 colleague referred to this morning, she referred to that transcript, that

12 was a meeting with Croatian President Franjo Tudjman and others just over

13 a month after the creation of Herceg-Bosna where Boban spoke of

14 "cleansing border areas" of Herceg-Bosna to increase the size of

15 Herceg-Bosna's Croatian population. That's from pages 34 to 35 of

16 Exhibit P89 which is cited in footnote 120 of volume 4.

17 And two weeks later, Tudjman referred to population exchanges in

18 a meeting with a Bosnian Serb leader. That's Exhibit P108, pages 31 to

19 33 and 41 to 42.

20 At 26 September 1992 presidential meeting with Tudjman and other

21 Croat leaders, Praljak indicated in reference to Muslim refugees in

22 Herceg-Bosna that "it would be difficult to make those people leave those

23 parts in any way and unless we evict those people from there, we will not

24 have a majority there."

25 Volume 4, paragraph 522.

Page 346

1 At a 26 October 1992 meeting with VRS Main Staff chief

2 Ratko Mladic, a meeting at which Prlic, Stojic, and Petkovic were

3 present, Praljak stated: "It is in our interest that the Muslims get

4 their own canton so they have somewhere to move to."

5 That's from page 3 of Exhibit P11380 which is relied on upon at

6 paragraph 43 of volume 4.

7 Your Honours, beyond these statements, the process of removing

8 Muslims from Herceg-Bosna and bringing Croats into Herceg-Bosna aligned

9 with the goal that Franjo Tudjman and other JCE members shared of

10 imposing Croat control over as much as of the Banovina as possible

11 because as the Chamber recognised at paragraph 43 of volume 4, Croat

12 dominance over the Banovina could only be achieved by changing

13 Herceg-Bosna's ethnic composition. The Defence referred to the finding

14 at paragraph 43 as a vague finding. It was no vague finding.

15 I used this analogy earlier, Your Honours, but it applies here as

16 well. The pieces just fit together, they fit together like a puzzle, and

17 the Defence haven't shown otherwise.

18 Now, the Defence have a referred to co-operation between the HVO

19 and the ABiH. They say this co-operation is inconsistent with the

20 existence of a common criminal purpose. Yes, the HVO and the ABiH did

21 co-operate in fighting the VRS. The Prosecution has never said

22 otherwise. But despite this co-operation, JCE members still had a vision

23 of creating a Croat-dominated entity spanning the Banovina borders. JCE

24 members still spoke of removing Muslims from Herceg-Bosna. JCE members

25 still committed horrific crimes against Muslims across Herceg-Bosna,

Page 347

1 crimes that depleted Herceg-Bosna of its Muslim population. And the HVO

2 still tried to repopulate Herceg-Bosna with Croats. Co-operation between

3 the HVO and the ABiH doesn't undermine the Chamber's conclusion that

4 there was a common criminal purpose.

5 Now, we've addressed much of the evidence that the Defence

6 referred to this morning in our response brief. I just want to address a

7 couple of exhibits that they referred to.

8 In relation to Exhibit 2D1107, the Defence suggested that this

9 exhibit showed that the HVO provided material and weapons to the ABiH in

10 Mostar in May 1993. It did not. This exhibit shows that the HVO

11 approved the transport of material and weapons to the ABiH in northern

12 Bosnia where there was -- where there were confrontations with the VRS.

13 I refer Your Honours to Exhibit 2D1107 as well as Exhibit 2D1108 and the

14 testimony of Makar at transcript pages 38447 to 38449.

15 The Defence told you that Exhibit 2D959 shows further material

16 and weapon delivery by the HVO to the ABiH in August 1993. 2D959 was not

17 admitted and, in any event, the document does not show the ABiH received

18 the weapons referred to in the report. The document shows the end point

19 of the transit of weapons is the HVO's logistic base in Grude.

20 Now, the Defence this morning challenged the Chamber's conclusion

21 that the common criminal purpose was established by mid-January 1993, but

22 again they ignore the Chamber's analysis. The Chamber made it clear that

23 the JCE members relied on their interpretation of the Vance-Owen Peace

24 Plan to implement the common criminal purpose. Volume 4, paragraphs 44

25 and 65.

Page 348

1 The government's 15 January ultimatum which Stojic ordered Coric

2 and Petkovic to implement, which I referred to earlier, contained the --

3 contained the JCE members interpretation of Vance-Owen. Volume 4,

4 paragraph 139 to 140. And this interpretation of the Vance-Owen Peace

5 Plan was enforced through a campaign of ethnic cleansing that began in

6 Gornji Vakuf municipality immediately after the 15 January ultimatum was

7 issued and occurred again and again and again throughout Herceg-Bosna.

8 It was reasonable, Your Honours, for the Chamber to conclude that the

9 common criminal purpose had formed by mid-January 1993.

10 Now, this morning the Defence broadly challenged the ultimate

11 purpose conclusion. Defence say presidential transcripts don't support

12 the Chamber's conclusion. They do. The ultimate purpose section of the

13 judgement in volume 4 is filled with evidence from presidential

14 transcripts and the evidence of international witnesses which clearly

15 show that the Chamber's conclusion concerning the ultimate purpose was

16 reasonable. Now, Mr. Khan showed you a few transcripts and said, well,

17 look, there is an inconsistency between what Chamber found and what the

18 evidence says. But there's no inconsistency. I'm going to give you one

19 example.

20 The Defence referred to Exhibit P2466. Defence said that, look,

21 this 20 May 1993 internal meeting, Tudjman allegedly argued against the

22 escalation of conflict between the Muslims because this would endanger

23 the interests of the Croat state because he was worried about sanctions.

24 That's at page 11. What Mr. Khan didn't tell you was that the page

25 before, page 10, on page 10, Tudjman said:

Page 349

1 "I said to Izetbegovic in private in Split before the meeting,

2 that this, what they are doing by starting the conflict with Croats and

3 trying to conquer part of the area, the provinces led and controlled by

4 Croatia is suicidal politics for the Muslims. Croats cannot agree to

5 lose areas that used to be part of the Banovina of Croatia."

6 The evidence the Defence refers to you is just further proof of

7 ultimate purpose, the ultimate purpose to create a Croat-dominated entity

8 in Bosnia-Herzegovina spanning the Banovina borders.

9 This morning the Defence challenged the Chamber's conclusion that

10 Franjo Tudjman, Croatian Defence Minister Gojko Susak and Croatian Army

11 Chief of Staff Janko Bobetko were JCE members. Your Honours, the first

12 point I want to make is that Stojic's JCE responsibility doesn't depend

13 on the finding that Tudjman, Susak, and Bobetko were JCE members as the

14 Defence have argued. Regardless of whether these three men were JCE

15 members, the Chamber's finding that there was a plurality of persons who

16 share the common criminal purpose would stand, and the crimes imputed

17 through the JCE would remain unchanged, JCE crimes were imputed through

18 the appellants, not through Tudjman, Susak or Bobetko. Volume 4,

19 paragraph 1232.

20 But having said that, Your Honours, the Chamber made absolutely

21 no error in naming Tudjman, Susak, and Bobetko as JCE members. The

22 Chamber found at paragraph 1222 of volume 4 that Tudjman, Susak, and

23 Bobetko directly collaborated with the HVO leadership to further the JCE.

24 Your Honours, there is no error in that finding because that finding

25 is an understatement. Let me explain why. I'll begin with

Page 350

1 Tudjman and then I'll deal with Susak and Bobetko.

2 Tudjman's vision of a Croat entity in Bosnia-Herzegovina

3 encompassing the Banovina borders, a vision he shared with the other JCE

4 members, was the driving force behind the common criminal purpose.

5 Tudjman knew this vision could only be achieved by changing

6 Herceg-Bosna's ethnic composition by moving Muslims out and bringing

7 Croats in. The Chamber found as much at paragraph 43 of volume 4. We've

8 already referred to that finding.

9 And so, Your Honours, as we've argued in our brief in response to

10 Grounds 6 and 14 of Stojic's appeal, when Tudjman planned HVO operations,

11 when he strategised with HVO leaders on political and military matters,

12 and when he shaped Herceg-Bosna's political and military leadership

13 structure, he was doing these things to advance the JCE. Tudjman wasn't

14 silent as the Defence have suggested. He led. As he planned and

15 strategised with the HVO, Tudjman repeatedly acknowledged the horrific

16 crimes by the HVO against Muslims. And for that, I would refer

17 Your Honours to the testimony of the former US ambassador to Croatia,

18 Peter Galbraith, testimony the Chamber cited at paragraph 562 of volume

19 3. What you have, then, Your Honours, is the combination of Tudjman's

20 repeated acknowledgment that the HVO were committing crimes against

21 Muslims and the continued direction which Tudjman provided to the HVO to

22 accomplish this project of creating a Croat-dominated Herceg-Bosna.

23 The combination of those factors demonstrates that the Chamber

24 reasonably concluded that Tudjman was a JCE member. But that wasn't the

25 only support for this conclusion. According to Ambassador Galbraith,

Page 351

1 Tudjman believed "states ought to be ethnically homogeneous." And

2 Tudjman expressed his support for population exchanges. Transcript pages

3 6429 and 6435. The very sort of exchange that Boban and Prlic tried to

4 carry out in early May 1993. Muslims from Mostar for Croats from

5 Central Bosnia. As you heard from Mr. Stringer yesterday, the

6 international organisation that Boban and Prlic sought assistance from to

7 carry out this exchange refused to become involved in an attempt by HVO

8 leaders to create "ethnically homogeneous zones."

9 The organisation communicated its refusal to Tudjman and Boban on

10 12th of May. Volume 4, paragraph 54. By then, the HVO had already moved

11 on from population exchange to mass arrests and ultimately ethnically

12 cleansing Muslims from West Mostar.

13 Evidence of Tudjman's JCE membership doesn't end there, though.

14 Tudjman welcomed the demographic changes that took place in Herceg-Bosna.

15 At a meeting on 21 September 1993 at his presidential palace, Tudjman was

16 told by Stolac's HVO president, Andjelko Markovic that:

17 "Stolac was twice defended as you once said, once from the

18 Muslims and from the Chetniks. Today there is not a single Muslim in

19 Stolac. We have populated Stolac with our refugees from Bosnia."

20 Tudjman's immediate reaction was to say: "Andjelko, I know all

21 that." And to later comment that it had been his idea to populate Stolac

22 with Croats. That's from pages 4 and 17 to 18 of Exhibit P5237. That

23 exhibit is cited and discussed at paragraph 2034 of volume 2.

24 Tudjman's reaction demonstrates that what he heard had happened

25 to the Muslims of Stolac was what he expected to hear.

Page 352

1 Now, in their appeal brief, the Defence referred to Tudjman's

2 reaction to the crimes in Stupni Do and the destruction of the old

3 bridge. But that evidence, Your Honours, provides more proof of

4 Tudjman's JCE membership. As we've argued in our response brief at

5 paragraph 51, Tudjman's only concern was the international scrutiny these

6 crimes attracted. Tudjman wasn't generally interested in holding

7 perpetrators accountable or in stopping the ethnic cleansing campaign.

8 If Tudjman had really been in interesting in stopping the ethnic

9 cleansing campaign, he wouldn't have said that Ivica Rajic whose troops

10 physically perpetrated the crimes in Stupni Do could continue serving in

11 the HVO in Gornji Vakuf. Volume 3, paragraph 564. He wouldn't have

12 accepted the forced removal of all of Stolac's Muslim population, and on

13 a broader level, he wouldn't have planned HVO operations and strategised

14 with HVO leaders for months and months while at the same time

15 acknowledging the horrific crimes HVO members were committing.

16 The Chamber reasonably concluded that Tudjman was a JCE member.

17 What about Susak and Bobetko? Susak and Bobetko implemented

18 Tudjman's policies in Herceg-Bosna. Tudjman directed them to work with

19 the HVO to achieve his objectives. That's evident from a number of the

20 presidential transcripts that we've cited in Grounds 6 and 14 of our

21 response brief. There is one in particular I'd like to highlight. This

22 is an excerpt from page 54 of Exhibit P3112 which is a presidential

23 transcript of the 2nd of July, 1993. Incorrect date as it appears on the

24 slide. It is, in fact, the 2nd of July.

25 These are Tudjman's words. Tudjman says:

Page 353

1 "But at the same time we must take steps to protect Croatian

2 interests in the territorial sense, too. And you two, please, Minister

3 Susak, General Bobetko, see about this and meet with Herceg-Bosna leaders

4 there, with General Praljak, Petkovic, and Ambassador Sancevic and their

5 leaders there, with Boban and Prlic, to discuss exactly what should be

6 done. But it goes without saying, do not lead the operation in such a

7 way as to make it a direct involvement."

8 This, as I said, was on the 2nd of July, 1993. After the crimes

9 in Gornji Vakuf municipalities, after the crimes in Jablanica

10 municipality, after the crimes in Prozor municipality, after the

11 expulsion campaign in West Mostar had begun, after the siege of

12 East Mostar had begun, and just as the mass arrest operation across

13 Herceg-Bosna was taking place. The presidential transcripts that we've

14 cited in our response brief demonstrate the Susak and Bobetko provided

15 direction to the HVO as its members committed horrific crimes against

16 Muslims.

17 So, Your Honours, for that reason the Chamber reasonably

18 concluded that Susak and Bobetko were JCE members as well.

19 Before I conclude, Your Honours, I just want to address briefly,

20 very briefly, a point the Defence made about the Mladic diaries this is

21 morning.

22 Now, the inference that the Chamber drew from the Mladic diaries

23 is at paragraph 43 of volume 4, relied on those diaries to conclude that

24 by October 1992, Prlic, Stojic, Petkovic, and Praljak knew that achieving

25 the ultimate purpose would involve Muslims moving out of Herceg-Bosna.

Page 354

1 That was a reasonable finding to make given the nature of the comments

2 that Praljak -- that are attributed to Praljak in those diaries.

3 Now, this morning, Mr. Khan said that the Mladic diaries were the

4 foundation of the majority finding that Stojic was linked as an

5 individual to the JCE. That position is elaborated upon in the appeal

6 brief at paragraph 132, the Defence said that this is the only finding in

7 relation to Stojic's knowledge of the common purpose of the JCE and

8 without this finding the conviction of Stojic for participation in the

9 JCE could not stand.

10 Your Honours, prior knowledge of the JCE isn't a legal ingredient

11 for JCE liability. The finding that Stojic knew that the ultimate

12 purpose would involve Muslims moving out the Herceg-Bosna was relevant to

13 establishing the Chamber's conclusion that there was a common criminal

14 purpose and that Stojic shared that purpose. It was a reasonable

15 finding, very well-supported finding, but it wasn't decisive.

16 Your Honours, those are my submissions, unless you have any

17 further questions.

18 JUDGE AGIUS: Thank you.

19 [Trial Chamber confers]

20 JUDGE AGIUS: Yes, Mr. Khan.

21 MR. KHAN: I'm grateful, Mr. President, Your Honours.

22 JUDGE AGIUS: 25 minutes.

23 MR. KHAN: Thank you.

24 Whenever counsel states it fits just right, one's ears should

25 prick up and one should be very vigilant. It fits just right. Pieces of

Page 355

1 a puzzle cut almost to order. That's the tenor of the Prosecution's

2 response. And I will pause and say it was within the last ten minutes or

3 15 minutes when the Prosecution really started addressing or seeking to

4 address the main planks of the submissions put forward by Bruno Stojic in

5 our oral argument today. Of course, very interesting about international

6 armed conflict and occupation, but we had written briefs. It was their

7 decision to focus on that but they heard full well the way I put the case

8 this morning. They had every opportunity to seek to decimate the

9 argument that I postulated on behalf of Mr. Bruno Stojic. Rather than do

10 that, they sought to squeeze in some kind of repost, the Mladic diaries,

11 in extra time. We say that's quite significant. Fits just right.

12 Judge Antonetti in his dissent states at page 67:

13 "I deeply regret that, in my view, the Prosecution had a very

14 selective approach to its documents, retaining only those supporting its

15 arguments and setting aside all those likely to compromise it's point of

16 view. I do not think this is the most efficient practice to adopt with

17 regards to crimes falling under international humanitarian law."

18 And he goes on.

19 The Prosecution, in my respectful submission, have done little

20 more than regurgitate the arguments that they presented before the Trial

21 Chamber, and then add a caveat: The Trial Chamber agreed, the Trial

22 Chamber found, it's all very reasonable. Well, that's not a proper

23 response. It is circuitous. The test isn't whether a decision is

24 reasonable, whether or not a hypothesis could reasonable be constructed.

25 Despite me saying, I hoped quite clearly today, that the test is whether

Page 356

1 or not -- because it is a case based upon inference upon circumstantial

2 evidence which can be compelling. The old adage that it is like a rope,

3 that one strand is not enough to sustain it, but many strands together

4 may be enough to sustain a conviction comes to mind. But when there are

5 other reasonable explanations, other reasonable conclusions, that is

6 highly relevant to a criminal case. And my learned friend was quite --

7 the Prosecution didn't address those key arguments.

8 Perhaps I was unclear when I dealt with 2D1107. The document was

9 absolutely accurately presented by me. The key to that document wasn't

10 where the MTS went. It was my reference to Makar, the witness Makar,

11 that he collected that ordinance, those fire-arms in Mostar. Now we were

12 trying until we were blue in the face to make the Prosecution understand

13 that one doesn't give a fire-arms -- to use an analogy, one doesn't give

14 a gun to one's enemy in one's own home in the belief that they're going

15 to use it outside.

16 So the fact that weapons were given in Mostar to what the

17 Prosecution said at that time were the enemy was highly relevant. It

18 shed light on whether or not there was an intent, whether or not there

19 was a JCE with an ultimate purpose or whether or not that was simply an

20 ambitious construction by the Prosecution.

21 Your Honour, in relation to question 4, I will discuss again the

22 documents P1351 and 3D0365. The reason the majority found or gave weight

23 to P1351 is apparent in the judgement at paragraph 355 -- 355 -- 335,

24 page 116.

25 Now, with your leave, let's look at firstly, once again, 3D0365.

Page 357

1 The Trial Chamber, we say, unreasonably cited this document as evidence

2 of intent of Bruno Stojic in relation to the Prosecution counts of

3 crimes, murder, in Gornji Vakuf. But let's look at it. Firstly I point

4 out, because it is relevant when you go to the next document, it is

5 addressed to Bruno Stojic. We have seen other documents on the screen

6 today by the Prosecution with "Bruno Stojic" typed in.

7 First paragraph, Miro Andric says in his report dated the 27th of

8 January is that he went often a mission to Prozor with the objective of

9 calming the situation in Gornji Vakuf municipality. Not incitement, not

10 violence, not military engagement to calm it down. 12th of January.

11 Down the page he has a meeting on the 13th of January.

12 "Following the instructions I had received," he says, "that the

13 differences had to be resolved peacefully," "peacefully" staring the

14 Prosecution in the face, "peacefully and by negotiations," not by guns,

15 not by fire, not by belligerency, and yet the Judges bought -- the

16 majority bought the Prosecution's line that this was somehow an

17 incriminating document.

18 Your Honour, on the second page, page 3 in fact, the letter

19 further states: "On 18th of January, following an order from our

20 superiors, it was decided to use force to exert pressure on the OS BH,"

21 so on and so forth.

22 Your Honours have agreed and granted leave in your decision of

23 the 11th of March that that translation was wrong and instead it was to

24 be replaced with "following a higher order." So when one looks at this

25 document from Mr. Andric addressed to Bruno Stojic in which he relates

Page 358

1 orders given by Bruno Stojic and looks at the construction of the

2 properly translated document "following a higher order," it seems plain,

3 in our respectful submission, that the higher order does not come from

4 Bruno Stojic. It doesn't say from you, from the head of the Defence

5 Department. So the conclusion that this document somehow is

6 incriminatory is patently unfair. In fact it's exculpatory. It's

7 exculpatory. And despite that, we say the Trial Chamber unreasonably

8 characterised this as an incriminatory document and because they viewed

9 it in that way, they assumed, and we say unreasonably assumed, in

10 paragraph 335 that P1351 was received by Bruno, speculating that P --

11 3D03065 showed he was following the events in Gornji Vakuf closely.

12 Your Honour, that kind of speculation has no place in a criminal trial

13 where evidence has to be led to prove matters to the criminal standard.

14 And, really, if there was a moot court, it would be a very basic argument

15 for a first-year law student to be able to argue that particular point as

16 far as relevance and probative value is concerned, in our respectful

17 submission.

18 Your Honour, this confusion of parties, and you're caught in the

19 middle unfortunately, I'm sorry, bandering facts around, the need to be

20 grasped, that the Trial Chamber -- clear error in relation to sniping,

21 we've heard how the Prosecution -- the adjectives, the terrible man of

22 Bruno Stojic and charge of sniping, well, I can understand their position

23 in the sense they're defending a decision, a decision that we say withers

24 under scrutiny. Because in paragraph 368 of volume 4, the majority say

25 Bruno Stojic admitted that he controlled the snipers positioned in the

Page 359

1 glass wall bank [sic]. Well, that's wrong. He didn't admit it. And am

2 I misrepresenting the position or is it absolutely accurate?

3 Your Honours, in the -- bear with me a moment.

4 Sorry, one moment, Your Honours, I do apologise.

5 In the documents regarding sniping -- sorry, just one second.

6 Here it is, I put it for safekeeping and forgot about it. There's an

7 exhibit, P2806. And this is a report that was before the Chamber from

8 the expert -- from the witness that the majority quoted and, Your Honour,

9 it's under seal so I won't cite it in detail. But what's very clear is

10 the particular witness who I would not name in that report dated the 16th

11 of June, 1993, states that snipers were under full control and it goes

12 on. Not of Bruno Stojic. Were under full control in the -- in the

13 gymnasium. Now when that individual, I think it's public, gave

14 evidence -- I think it's public, Mr. van der Grinten -- I think it's

15 public.

16 JUDGE AGIUS: Registrar --

17 MR. KHAN: It's public. When he gave evidence, page 21051 on the

18 7th of October, 2007, lines 1 to 5, and I quote the question:

19 "Q. So Mr. Stojic himself told you that the snipers located the

20 in these two buildings were under HVO control? He said that himself?"

21 Answer at line 4, the witness: "Yeah, this is not my text. It

22 the text I noted or we noted after the conversation.

23 "Judge Antonetti: Fine. So what you're writing are Mr. Stojic's

24 words."

25 Answer, line 8: "That's correct."

Page 360

1 So the spin that somehow Mr. Stojic is saying snipers under his

2 control is belied by documentary evidence which makes no mention of that

3 and the witness himself who states Mr. Stojic says the snipers under HVO

4 control, which is something quite different. And these are important

5 matters because they go to so many aspects of the Prosecution's case.

6 The Prosecution has made submissions in relation to question 8 and

7 terror, but the sniping he is being accused of as being in charge of, the

8 evidence found by the Chamber doesn't accord with the transcript 21051

9 that I've just read out in court.

10 Your Honour, the Prosecution stated when they started that I

11 didn't say much about Mr. Stojic. Well, that is hardly -- I think the

12 word used is not political victim. I don't think I used those words at

13 all. Hardly a political victim. And, Your Honour, the question of this

14 case isn't whether somebody is an angel. It's not whether even with the

15 benefit of hindsight morally things could have been done better, things

16 could have been done differently. It is whether or not the Prosecution

17 proved the case that they constructed with the vehicle of JCE that they

18 decided upon. And we say that that is the fundamental premise that the

19 case, the appeal must proceed upon.

20 Now, actually, it is relevant to go into what Bruno Stojic --

21 because he was appointed to the head of the Defence department in

22 July 1992. Previously he had been in charge of logistics. We said, of

23 course, throughout that was his area of logistics, even as a minister of

24 -- a head of defence, his job was logistics, that his previous experience

25 is why he was selected. The majority disregarded that. They found

Page 361

1 against us. But it is important that he took up that position in

2 July 1992 because all the pages written by the Prosecution about meetings

3 between Milosevic and Tudjman, the meeting in Graz in Austria, the

4 formation of the HVO, all of that is irrelevant when it comes to

5 assessing Bruno Stojic because he wasn't even part, he wasn't even part

6 of that Defence Department at that moment in time.

7 Your Honours, the Prosecution have talked about Gornji Vakuf and

8 with your leave, I just want to put on the screen two documents which are

9 relevant for your determination.

10 Your Honour, you will see here two extracts of the judgement.

11 Same Judges, same majority, same volume. And in relation to Grounds 27

12 to 37 and the issue of Mr. Stojic's responsibility in the municipalities

13 of which Gornji Vakuf was one, it is very interesting to note that at

14 paragraph 329, the Judges -- the majority found that P3418, which was

15 sent to Mr. Stojic and General Petkovic, established beyond a reasonable

16 doubt that Mr. Stojic was thus informed that men who did not belong to

17 any armed force were detained in Prozor. In relation to exactly the same

18 document copied to Mr. Petkovic, at paragraph 799, the Judges came to

19 precisely the opposite conclusion. They found that they couldn't

20 establish beyond reasonable doubt that General Petkovic was informed of

21 the fact. Two diametrically opposing interpretations, two absolutely

22 contrary findings in relation to the same document. It cannot stand.

23 For many reasons. Under the principle of in dubio pro reo for one, we're

24 entitled for that document to be treated in the same way that the Judges

25 decide it should be treated to General Petkovic. Your Honour, that's in

Page 362

1 our written brief, not responded to by the Prosecution at all.

2 The idea that in relation to specific intent and the crimes of

3 terror, that they must have known, should have known debate of command

4 responsibility has somehow metamorphisised, it's morphed into this new

5 radical concept of Judges must have meant, is something for which no

6 authority was cited. It is such a fundamental, it is such a basic

7 finding that is required in a decision that we say for the reasons that

8 are detailed in our brief that the only option is to reverse the finding

9 for the reasons that we give.

10 Your Honours will be well familiar with your previous holdings,

11 including in the Krajisnik case, that you shouldn't -- you would be wary

12 to trespass into a factual determination that was within the proper

13 purview of the court of first instance, and Your Honours then said that

14 you would not engage in speculation. It does require speculation. Why?

15 It requires speculation for many reasons, not only that no finding of

16 specific intent was found, but also it relates to an expanded JCE crime

17 in relation to Mostar so it needs to be plead specifically, with specific

18 dates how and when those crimes came into existence. But, Your Honour,

19 there's also clear evidence that's detailed, included by the judgment in

20 paragraph 361 and in our brief, where the Bench reply upon - the Trial

21 Chamber replied upon - a dinner on the 17th of July, 1993, where

22 Bruno Stojic indicated that there was a plan to exert pressure on

23 East Mostar in order to force, not the civilians, but the Army of

24 Bosnia-Herzegovina to leave the sector. And that suggests, in my

25 respectful submission beyond any doubt that the primary purpose was

Page 363

1 military advantage; it wasn't to terrorise. And indeed the same

2 reference shows according, to the Judges, that Bruno Stojic offered to

3 assist in organising the evacuation of the largest possible number of

4 civilians from East Mostar, which we say is prima facie evidence that is

5 completely incompatible with an intent to spread terror.

6 In addition to that, Your Honour, there's other evidence, for

7 example, the provision of medical supplies by Bruno Stojic which is in

8 our brief at paragraph 316, and the fact that even the Judges accepted

9 that between July and November the HVO attempted to manage the problem of

10 electricity and water supplies at paragraph 1218 of the judgment.

11 Your Honours, you can't step in to the melee of issues that the

12 Trial Chamber should have found, that they were required to find, if

13 there was any hope of sustaining the convictions that they entered

14 themselves against Bruno Stojic. In the circumstance, Your Honour, it is

15 our respectful prayer that that finding and that count is also reversed.

16 Your Honours, we're very grateful for the time given to us. I

17 believe that's all the time I've got; but for all the reasons detailed

18 today and in our brief, we'd ask that the judgment be -- the convictions

19 be overturned for the reasons given.

20 JUDGE AGIUS: Thank you.

21 Yes.

22 MS. NOZICA: [Interpretation] Your Honours, I think we have two

23 minutes which I would use for the transcript. The Prosecutor showed us

24 today document P02608, which allegedly refers to the moving in of

25 Croatian soldiers into apartments from which Bosniaks were expelled.

Page 364

1 Your Honours, that document does not say that at all. That is a document

2 that speaks about the temporary moving in of members of the HVO, pursuant

3 to a decree by the HVO. An identical decree was adopted by the B&H army

4 about the temporary use of abandoned flats. Perhaps it's not clear to

5 you - I don't want to testify - but when you look at it, I assert that

6 all the persons who left those apartments were members of the Serbian

7 army and absolutely by names you can see that there is no Muslim name

8 there but only Serb names. There is one Muslim name of a significant

9 person, but that person left Mostar for different reasons.

10 Another thing, Your Honour. The Prosecution claimed here today

11 that it is exactly true that the Army of Bosnia and Herzegovina -- or

12 actually that the HVO helped the Army of Bosnia and Herzegovina, but,

13 Your Honours, this is how I wish to finish up. Could you please look in

14 detail document 2D00311. It's a document indicated shown by my

15 colleague. It's a document that speaks to the sending of vast quantities

16 of arms in March 1993 to the Army of Bosnia and Herzegovina. It's a

17 document that talks about how the weapons were sent in 13 trucks, of

18 which seven trucks were trailer trucks. This is March 1993. And when

19 the Prosecutor persists in asserting today that the JCE began on 15th of

20 January, how can this quantity of weapons that is without doubt being

21 sent to the Army of Bosnia-Herzegovina from the Grude logistical base

22 fits into that JCE? I believe, I believe that it denies that document

23 completely.

24 Thank you very much, Your Honours.

25 JUDGE AGIUS: We will reconvene tomorrow morning at 9.30, and it

Page 365

1 will be the turn of Mr. Praljak's Defence team.

2 Thank you.

3 --- Whereupon the hearing adjourned at 4.12 p.m.,

4 to be reconvened on Wednesday, the 22nd day of

5 March, 2017, at 9.30 a.m.