Page 674

1 Today it's your turn, Defence for Mr. Pusic. You've got two

2 hours starting from now. Thank you.

3 MR. SAHOTA: Thank you. Good morning, Your Honours.

4 JUDGE AGIUS: Good morning.

5 MR. SAHOTA: There is one seat empty in the dock. Mr. Pusic

6 cannot be here today; the Appeals Chamber knows why. I ask that his

7 absence should not taken as any sign of disrespect to the Court or

8 disrespect to any of those that have suffered because of this conflict.

9 Mr. Pusic has made it plain in Court during this case, he said that what

10 hit the him hardest is having to listen to the victims in this case; he

11 finds that unbearable. He said that almost ten years ago on the 5th of

12 October, that's transcript reference 7950. He's also asked that we, as

13 his Defence team, make it clear that nothing we say today in the course

14 of this appeal should be taken in any way to minimise the distress, pain,

15 and suffering that is felt by victims of this conflict.

16 Your Honours, today our order of submissions will be that we will

17 begin firstly be briefly commenting on the JCE. The majority of our time

18 will, however, be spent on directly addressing the questions that you

19 have raised in the Scheduling Order in the order that they are contained

20 therein, beginning with question 1, then 4, and then question 9.

21 I am -- hope not to use all the time that's been allocated to me.

22 I also hope that you will forgive me if I do. One of the advantages of

23 being last on the indictment is that we can listen to what others have

24 said and that can also be a big disadvantage in a multi-handed trial, but

25 today I will try whenever possible to save time but adopting submission

Page 675

1 that applied to the Pusic Defence which have been already rehearsed by

2 others. I would also encourage and invite questions from the Bench at

3 any time. I've always found this helps focus attention on the issues

4 that are most relevant, although I do hope that I do not come to later

5 regret making this invitation.

6 Your Honours, if I may begin with ground 3 of our appeal brief,

7 which is our submission that there is no evidence of a JCE in this case.

8 Our position remains. We say that the Trial Chamber erred in coming to a

9 conclusion that a JCE existed. We would define the JCE in this case as a

10 two-tier JCE. Tier 1 we refer to the ultimate goal which I will call, by

11 way of shorthand, the Banovina reunification theory, which Your Honours

12 will be familiar with volume 4, paragraph 24. The Banovina reunification

13 theory we would say is a non-criminal and political aspiration. Tier 2

14 of the JCE, we say, is that there are the specified criminal means which

15 are cited to achieve that goal which also form part of the JCE. Before

16 going any further, we would just clarify what we say the law governing

17 the JCE is, the extracts that are relevant. We accept the law allows

18 evidence of a JCE to be inferred from circumstantial evidence. There

19 does not have to be direct evidence of an explicit agreement.

20 We also accept that the law allows the Trial Chamber to rely on

21 evidence of the way in which crimes were committed as evidence of a JCE,

22 hence the often repeated mantra relied on by the Prosecution that the

23 best evidence that the accused is part of a common plan lies in evidence

24 of what the accused actually did or said.

25 THE INTERPRETER: Kindly slow down for the interpreters. Thank

Page 676

1 you.

2 MR. SAHOTA: Nonetheless --

3 JUDGE AGIUS: Mr. Sahota, please, if you can kindly slow down a

4 little bit. Thank you.

5 MR. SAHOTA: What troubles us nonetheless is that the evidence

6 that those inferences are drawn from is, we say, too ambiguous,

7 conflicting, and contradictory to support the Chamber's conclusions,

8 particularly when the standard of proof is so high - it's the criminal

9 standard - and these facts have to be proved beyond reasonable doubt.

10 The reasons we cite in support of that proposition are set out in

11 detail in our appeal brief. I do not intend to rehearse them again here,

12 nor do we intend to repeat all the other relevant points that the Court

13 has already heard in relation to this submission. We would, however,

14 like just to develop one aspect, one point, concerning the Chamber's

15 reasoning. We say that underpinning the Trial Chamber's JCE theory is

16 the notion that the Croatian and HVO HZ HB military and political

17 structure was a tool or instrument in the hands of their leaders, a tool

18 or instrument used to further a particular end, their vision of a Greater

19 Croatia, the tier 1 of the JCE which I referred to earlier.

20 Now I use the word "instrument" here because when reading the

21 Trial Chamber's decision, I was reminded of the debate in political

22 science between instrumentalists and structuralists. I should just say

23 here that my first degree was history. The instrumentalists believe that

24 the state is a direct instrument of the ruling class, so applying that

25 concept to the JCE in this cases, we could say that the state and its

Page 677

1 apparatus were an instrument in the hands of Tudjman and his cohorts.

2 He/they gave orders. What he/they wanted was executed. And it's obvious

3 from the Trial Chamber's judgement and the indictment that Tudjman is

4 given almost dictatorial powers in their analysis of the JCE to shape

5 policy and events.

6 Structuralists, on the other hand, believe that the state is not

7 an instrument at all. They believe that the state does not exist as a

8 thing in itself that can be bent to the will of a ruler or the ruling

9 class; instead, it's a neutral arena. And to use a quite delightful

10 expression from a philosopher, Nicos Poulantzas, he described the state

11 as a neutral arena for the condensation of a balance of forces.

12 Your Honour, this discussion is relevant to our submission

13 because we say the Trial Chamber has erred in adopting this

14 instrumentalist approach in formulating their JCE, in particular, tier 1

15 of the JCE theory. The Trial Chamber has come up with a very simple and

16 elegant solution to a most complicated problem which boils down to this:

17 Tudjman always wanted a Greater Croatia. When he got the opportunity to

18 put this policy in action, he had the ability and used the state

19 apparatus in Croatia and the HVO HZ HB apparatus as a tool or instrument

20 to execute that policy. And the other leaders, the other accused in this

21 case and others mensed in the JCE, agreed and went along with him.

22 We can see that this is an elegant and superficially attractive

23 formulation, especially when compared to the Prosecution's original

24 contention in the indictment that there were several JCEs, not just one.

25 However, our submission is that while this approach has the virtue of

Page 678

1 simplicity, it is it also fundamentally flawed because what this

2 instrumentalist JCE theory can't explain is the complexities of the

3 situation that arise when important evidence conflicts with the Trial

4 Chamber's analysis.

5 You've heard in the past few days many examples of what I will

6 term inconvenient facts, facts that don't fit in with the Trial Chamber's

7 instrumentalist analysis. I don't intend to rehearse them again, but

8 they include evidence of Tudjman's conflictive motives. His motives seem

9 to change and shift over time and in response to external events.

10 Indeed, Your Honours, I said that I was a historian by training in my

11 first degree. It is ironic when one reviews the historical literature to

12 see how historians are divided as what Tudjman's motives are, almost in

13 the same way the Trial Chamber was divided as to what Tudjman's motives

14 are, contrast the minority and majority decisions, examine the lengthy

15 narrative in the minority dissent. And, Your Honours, we say this is

16 important because the ultimate objective of the JCE, tier 1, this must be

17 also proved beyond a reasonable doubt. There are other inconvenient

18 facts. Again, I don't intend to rehearse them all. Broad categories

19 include submissions you've heard that the HVO at times was acting

20 defensively and not pursuing an aggressive policy in terms of expanding

21 the land mass under their control, submissions you've heard that the HVO

22 at times or throughout did not pursue an aggressive policy of ethnic

23 cleansing. And, Your Honours, what seems to be the case is that we say

24 this evidence of inconvenient facts, which suggest that those named as

25 the framers of the JCE actually had varying objectives which suggests

Page 679

1 that their modes of execution depended and changed on the dynamics of

2 power; these inconvenient facts are largely ignored by the Trial Chamber.

3 May I clarify here. We are not saying that there is anything

4 necessarily wrong or incorrect with this instrumentalist JCE approach

5 being taken in cases where an international tribunal is dealing with a

6 large-scale conflict. But there is a very strong argument that the fever

7 of the mind that formed the background for the Second World War and the

8 Rwandan conflict, by way of an example, lent itself to an instrumentalist

9 analysis. In those conflicts, in contrast to the facts that we are

10 dealing with today, there was clear evidence of a -- of centralised

11 control of the state. There was evidence of a clear and consistent

12 policy agenda, suggesting a unity of purpose amongst the political actors

13 and military actors and a narrative of conflict that suggested that one

14 party acted aggressively. These are common threads present in those

15 cases, not necessarily present in the more complicated factual background

16 of the particular situation we are dealing with today in the Balkans. To

17 put it simply, JCE theory is not an easy fit against this background.

18 That's why deliberately in my submissions today, Your Honours, we have

19 referred to the JCE as formulated in the majority decision as a theory,

20 because that's what it is. It sounds great as a theory, but when you

21 apply it to the facts it just doesn't stand up; because it's a theory

22 that provides a factually incomplete and inaccurate characterisation of

23 the background to the conflict; because it's a theory that's based on a

24 highly selective reading of the evidence and a gross oversimplification

25 of the issued raised by that evidence; and also because it's a theory

Page 680

1 that directly impacts on the reputation of the Government of Croatia,

2 when that country has not been given the opportunity to respond to it.

3 That's why we say that JCE as formulated is a theory that should sit

4 alongside the many other narratives that historians and politicians and

5 members of the public will debate in academic circles, in their

6 parliaments, in coffeehouses for years to come. It should not and cannot

7 stand alone as a definitive finding of fact proved beyond reasonable

8 doubt in an international court of law. It should and cannot stand as

9 the final word or not just what happened during the conflict and who was

10 responsible, but also on why it happened.

11 I ask the Chamber to pause here and consider for Your Honours to

12 ask yourself: Was it even necessary for the Court to address and devote

13 so much time to this question of why the conflict happened, when this is

14 an issue that occupies historians and causes so much controversy? I

15 remind Your Honours of what was said in Krstic, where it was re-stated

16 that the purpose of this Court is not to set the historical record on the

17 causes of the conflict. In Krstic the Appeals [sic] Chamber said that:

18 "... historians and social psychologists" should be left to

19 "plumb the depths of this episode of the Balkans conflict and to profile

20 deep-seated causes. The task at hand is a more modest one: To find,

21 from the evidence presented at trial, what happened ..."

22 And, Your Honours, that's cited at footnote 182 to paragraph 104

23 of our trial brief.

24 Your Honours, we say that profiling deep-seated causes is exactly

25 what the Trial Chamber has done in this case. One cannot fail but to

Page 681

1 have those words from Krstic in mind when reading paragraphs 6 to 24 of

2 volume 4 of the Trial Chamber's judgement.

3 So in concluding our JCE submissions, we ask you to review the

4 evidence cited in support of the JCE. We are confident that if you do

5 you will find that not only was it unnecessary for the Court to consider

6 the causes of the conflict in the detail it did, but you will find that

7 findings it came to concerning the existence of a JCE are erroneous and

8 unsafe.

9 Your Honours, four years ago I addressed the Trial Chamber in my

10 closing speech, and I said then that the Prosecution had overreached in

11 its theory of many overlapping JCEs in the indictment. Today I submit

12 that the Trial Chamber has overreached either further than the

13 Prosecution did - if that is at all possible - in finding that one JCE, a

14 grand overarching scheme, existed rather than several interlocking JCEs.

15 Your Honours, that concludes my submissions on JCE. If I may

16 turn now to the questions in the order that were provided by the Chamber.

17 And if I may address each question in turn, turning to question 1 which

18 is an inquiry into the state of occupation. Ask the Appeals Chamber at

19 this junction to note that one of the ways in which we will be submitting

20 in due course that the case of Mr. Pusic is different and should be

21 distinguished from the co-accused lies in the fact that he is not

22 actually charged in respect of any crimes that took place in

23 Gornji Vakuf, and confirmation of this can be found at paragraphs 73 and

24 230 of the indictment. Thus reinforcing submissions in our appeal brief

25 that he was not a leader or high-level official. Also apparent from the

Page 682

1 fact that he was not charged with any of the crimes that are said to have

2 taken place in Prozor in October 1992. And it was further said in the

3 Trial Chamber's judgement that in their opinion, he is only considered to

4 have joined the JCE later than the others, in April 1993, the events in

5 Gornji Vakuf having taken place some months earlier in January of that

6 year.

7 Your Honour, in direct response to the question raised by this

8 Chamber at question 1, we simply adopt submissions made previously,

9 particularly those made by the Stojic team which we don't feel that we

10 can improve on.

11 Moving on to the next question that directly addresses Mr. Pusic,

12 that's question 4. Again, Your Honours, the incident in Dusa takes place

13 in Gornji Vakuf, which is in relation to a crime that Mr. Pusic is not

14 charged with directly. However, turning to question 4(a) there were, in

15 our submission, be some impact on Mr. Pusic if the Appeals Chamber were

16 to reverse their finding on Dusa; if, in turn, that finding lead to the

17 Appeals Chamber redefining the parameters of the JCE; if a reversal of

18 the Dusa finding lead the Appeals Chamber to reverse all the convictions

19 for the other defendants for any crimes of wilful killing and murder that

20 took place in the course of any attacks, on the basis that those crimes

21 were not within the scope of the common plan; then we say that Mr. Pusic

22 should also be acquitted of similar crime, in his case his convictions

23 pursuant to JCE 1 for Counts 2 and 3 which are said to be wilful killings

24 and murders that took place in the course of an attack in Mostar. So if

25 those crimes are by implication found not to be part of the common

Page 683

1 criminal plan, then he should be also acquitted of them.

2 Question 4(b), it follows that as Mr. Pusic was not charged with

3 the events in Dusa, the Trial Chamber made no findings in relation to his

4 mens rea, and we say there should be no impact on his mens rea for JCE

5 following any reversal unless the Appeals Chamber decides to define a new

6 legal definition of mens rea in JCE, which I frankly can't imagine is

7 going to happen in this case.

8 Question 4(c), Your Honours, the short answer is that we take the

9 view that a reversal should have no impact on Mr. Pusic's acquittal for

10 any JCE 3 crimes. We do, however, take the position that we will wait to

11 hear what the Prosecution says in regards to this point and reserve our

12 right to respond fully until we have heard that reply.

13 Moving on now, Your Honours, to question 9, where the Appeals

14 Chamber has asked for us to examine the Trial Chamber's finding that

15 Mr. Pusic had the power to resolve problems related to conditions of

16 confinement and the mistreatment of detainees in the network of HVO

17 detention centres. We will focus on the Trial Chamber's findings in

18 paragraph 1056 of volume 4, that is the paragraph cited in the footnote

19 to question 9 in the Scheduling Order. We propose to deal with the

20 issues raised in paragraph 1056 in this particular order: Firstly, we

21 will look at the issue of forced labour, we will then turn to look at the

22 question of Mr. Pusic's powers over the conditions of detention and his

23 ability to remedy the mistreatment of detainees.

24 So the first issue: Forced labour.

25 Your Honours, the Trial Chamber's findings -- relevant findings

Page 684

1 can be found at paragraph 1054. Mr. Pusic is said to be amongst those

2 with the power to authorise the sending of detainees on forced labour

3 assignments in the Heliodrom. Another relevant finding is at

4 paragraph 1203, where it's said that Mr. Pusic played a significant role

5 in the use of Heliodrom detainees to work on the front line, as he was

6 one of the authorities who authorised or approved this. Your Honours, I

7 would ask you just to note the use of the word "significant" here,

8 contrast it with the use of the word "substantial" to describe

9 Mr. Pusic's powers elsewhere the judgement, particularly in passages that

10 deal with detention centres. Your Honours, we suggest - and I will

11 elaborate on this later - that this indicates a rather muddled approach

12 on the part of the Trial Chamber.

13 Paragraph 1203 continues with a Trial Chamber finding that

14 Mr. Pusic continued sending detainees to work on the front line although

15 he knew that detainees had died and had been wounded. These allegations

16 form, we would suggest, probably the most serious allegations that have

17 been laid against Mr. Pusic so that we will address them in some detail.

18 The principal evidence relied on in support of these assertions

19 by the Trial Chamber is the evidence of one Josip Praljak. Mr. Praljak

20 is one of the wardens at the Heliodrom. The first point that we would

21 emphasise in relation to his testimony is that the Trial Chamber

22 acknowledged that this witness lied on oath before an international

23 court. The appropriate reference can be found at paragraph 1589 of

24 volume 2. The Trial Chamber found that Mr. Praljak, Josip Praljak, lied

25 about most important issue in his testimony, when he claimed that he had

Page 685

1 no knowledge of any detainee abuses in the Heliodrom during the time that

2 he worked there. This was a patently absurd claim; the Trial Chamber was

3 right to reject it. However, in our submission, the Trial Chamber did

4 not go far enough. It should have, as a consequence, rejected his

5 evidence in its entirety instead of cherry-picking and taking a

6 compartmentalised approach. And what we find particularly troubling with

7 the Trial Chamber's findings is that the Chamber accepted that Praljak

8 was lying when it came to the issue of who was responsible or knew for

9 what happened at the Heliodrom; but when to the same end in his testimony

10 he pointed the finger at others, they accepted his version of events

11 unreservedly and uncritically. And they did so without explaining why

12 they could discard one part of his testimony but rely on another, again

13 to make a finding beyond reasonable doubt, also suggesting that they

14 failed to make a reasoned finding in relation to his evidence.

15 Your Honours, it also follows that we have concerns because there

16 is no finding made by the Trial Chamber that Josip Praljak was

17 Mr. Pusic's subordinate and that Mr. Pusic had the authority to give him

18 orders. And I remind the Appeals Chamber of the evidence that was heard

19 on Friday last, when the Prosecution asserted - that's at transcript page

20 641 - when the Prosecution asserted its position as to who the wardens

21 and commanders of the Heliodrom reported to and did not cite Mr. Pusic

22 that regard. What troubles us here again is that the Trial Chamber made

23 no finding that Mr. Pusic held any official position within the prison

24 network. It made no finding that Mr. Pusic had any direct authority over

25 prison governors or prison wardens or prison staff in each facility. It

Page 686

1 made no finding that he had any powers over military personnel stationed

2 at any of the detention centres; many of those personnel were ultimately

3 responsible for the forced label assignments, we say. It made no finding

4 that he had any powers over the superiors of any of the officials at the

5 prisons or to any of the military personnel stationed there.

6 Your Honours, this point is developed at paragraphs 16 to 21 of

7 our appeal brief. I won't repeat the submissions here, but this does go

8 to what we've said earlier, that Mr. Pusic's case is different from the

9 other co-accused. He is not in the cabinet. He's not a high-level

10 political figure. There is mention in the Trial Chamber's judgement that

11 they don't even consider him to be a high-level official. We say that it

12 cannot be inferred from evidence of the position or any position he held

13 that he had powers over prison staff or military commanders. That is a

14 conclusion the Prosecution have to prove beyond reasonable doubt.

15 And at this point we would issue a handle-with-care warning in

16 respect of certain categories of evidence, in particular in respect of

17 any reference by the Trial Chamber or the Prosecution to Mr. Pusic having

18 de jure powers by virtue of any positions he held, by virtue of any

19 position he held on the 5th of July Service for Exchange established in

20 1993, by virtue of any position he held or powers he had from his

21 position that the 6th of August, 1993, commission for exchange and

22 prisons. Your Honours, this particular organisation is the subject of

23 several citations by the Trial Chamber, and it is puzzling to us that so

24 much reliance is placed on evidence is connected to it when at other

25 parts of the judgement the Trial Chamber concedes that they thought the

Page 687

1 commission was entirely ineffective. And they accept that there was no

2 evidence it ever met. And, Your Honours, rather than rehearse this again

3 today, I would refer to our appeals brief paragraphs 28 to 31, where we

4 do explore this issue in more detail.

5 Your Honours, we would also say that the Chamber should handle

6 with care any reference to his role following the 10th of December, 1993,

7 which is the date that Mate Boban made an order mandating that the

8 operation of HVO detention centres should be dismantled. Our case is,

9 quite simply, that Mr. Pusic did not have any de jure powers by virtue of

10 any of these positions. And that is why, Your Honours, we intend to

11 focus in the remainder of these submissions on evidence of his de facto

12 powers. And we will continue by looking briefly at what Praljak actually

13 said, having addressed you on his credibility. Josip Praljak gave

14 evidence on what the Trial Chamber described as 30 -- he gave evidence of

15 what Trial Chamber described as 30 verbal orders, each authorising the

16 use of detainees for forced labour, and that's cited at Trial Chamber's

17 judgement paragraph 1147 of volume 4 and also paragraph 1472 of volume 2.

18 In summary, Josip Praljak said that he regularly received orders from the

19 military police or military brigade officials, such as Witness NO, who

20 was the commander of all the HVO forces in Mostar; or another witness,

21 Pavlovic. Neither of these individuals did Mr. Pusic have any authority

22 over. These orders were such that these military officials required

23 detainees to be sent to the front line to perform labour assignments.

24 The order would be passed down to the Heliodrom staff and it would be

25 eventually handed and land on Mr. Josip Praljak's desk. Mr. Pusic at

Page 688

1 this point has no role whatsoever in this process. But for some reason

2 when giving evidence, Josip Praljak claimed that having received this

3 notification Mr. Pusic also had to be contacted and had to be asked to

4 approve the use of prisoners for labour. Josip Praljak continued, he

5 said that whoever spoke to Pusic would then have to make a note or

6 written memorandum of their conversation and that would take the form of

7 a note or memorandum in the Heliodrom log-book.

8 Your Honours, in accordance with our handle-with-care warning, we

9 would ask you to look at these orders closely. We would ask you to --

10 whenever you're presented with a document or order that is cited by the

11 Prosecution or Chamber and it says that this document proves that

12 Mr. Pusic had the power to do X, Y, or Z, we would ask you to scrutinise

13 and look at whether the label or a conclusion applied to that document is

14 actually justified. We would ask the Appeals Chamber to ask some basic

15 questions. Did Mr. Pusic write or author the document or did someone

16 else write it? And does the document really in context support the

17 conclusions to which the Trial Chamber or Prosecution seek to draw?

18 In relation to these 30 verbal orders, if we perform this

19 analysis, you will find that they are documents that are not written by

20 Mr. Pusic. They're actually notes of a conversation, and again

21 Your Honours have heard our submissions that there is no predicate

22 finding that Mr. Pusic had any power over Josip Praljak or the military

23 commanders making these requests. What's also interesting is that there

24 is a conspicuous lack of corroboration from other witnesses when they

25 deal with this issue of who had the authority to order these forced

Page 689

1 labour assignments at the Heliodrom. No other witness who testified on

2 this issue -- I apologise. If I do err in any way, I do obviously mean

3 Josip Praljak.

4 No other witness -- Josip. Thank you.

5 No other witness who testified on this issue, and that includes

6 Witness Pavlovic - and I apologise again if I have these pronunciations

7 wrong, ten years at the Tribunal and I haven't improved very much but I'm

8 trying - neither Pavlovic not Witness NO, when they gave evidence, made

9 any reference to Pusic as a superior who had to approve these requests

10 for forced labour assignments. And most importantly, we say, when

11 Marjan Biskic, who was the HVO assistant minister of security, somebody

12 parachuted in by the Croatian government towards the end of 1993 to help

13 the Croats in BiH, if I can use the colloquial expression, to help them

14 clean up their act. And when tasked with looking at forced labour

15 assignments, he gave evidence at some length on the procedures that were

16 followed at the Heliodrom. He made no mention of Mr. Pusic in his

17 analysis. And indeed, when he was asked to comment on Mr. Pusic's

18 authority in general, he made a comment that is at the very forefront of

19 our submissions and not addressed at any point by the Trial Chamber he

20 said these words. He said that:

21 "Mr. Pusic could not give orders to me or anyone else."

22 Your Honours, we accept and we hope the Appeals Chamber

23 acknowledges that we are trying to be realistic here. There is evidence

24 that could support a conclusion that Mr. Pusic was aware of what was

25 happening in the detention centres, in that detainees were being sent out

Page 690

1 to work - sometimes on the front line - and that there were many

2 casualties as a result of this. And in saying that, we don't necessarily

3 concede that simply because reports were sent to him that he must have

4 had constructive notice of their contents. But our position remains.

5 The evidence cited by Trial Chamber, the evidentiary lied on by the

6 Prosecution does not show that he had any authority to do anything about

7 these forced labour assignments. And when we look at the Chamber's

8 finding of fact that Mr. Pusic could give orders for detainees to be

9 taken out on these assignments, when we undertake a penetrating analysis

10 of that evidence - which we say the Trial Chamber abjectly failed to do -

11 we are sure that you will find that no reasonable Chamber could have

12 arrived at the conclusion that the Trial Chamber did in this instance.

13 Your Honours, turning to the second question, conditions of

14 detention or the second issue that arises from question 9, conditions of

15 detention. The Trial Chamber's findings -- and in this area they refer

16 to Mr. Pusic as having so-called substantial powers. Those findings can

17 be found at paragraphs 1056, 1203 of volume 4. The Trial Chamber further

18 elaborates on the evidence it relies on to support its conclusions at

19 paragraphs 1137 to 1145 of volume 4. Their findings follow a distinctive

20 pattern, and these are -- this is the pattern that's applied to all their

21 findings in relation to all the detention centres in respect of

22 Mr. Pusic. They say - the Trial Chamber says - that Mr. Pusic was aware

23 and had the power to remedy serious problems at each detention centre,

24 but because he omitted to do so - and he then remained in situ performing

25 his functions - it deems his omission to act as acceptance and says that

Page 691

1 amounts to a substantial contribution to the JCE. Your Honours, in

2 response, our starting point is that, again - and we hope the Appeals

3 Chamber accepts that we are being realistic here - we again accept that

4 there is evidence that could support the conclusion that Mr. Pusic was

5 made aware of what was happening in the detention centres to some degree.

6 So, for example, in relation to and dealing with the Heliodrom first, if

7 you look at paragraphs 1137 through to 1141 of volume 4, we note there is

8 material that the Trial Chamber relies on to show that Mr. Pusic may have

9 been aware of the conditions pertaining to the Heliodrom. For example,

10 there is the fact that he attend a meeting with the ECMM monitors on the

11 16th of July, 1993, at paragraph 1137 where this issue is mentioned, it's

12 clear. There is also evidence of reports that are sent to him, and again

13 we repeat this point about constructive motive. Just because reports are

14 sent to you doesn't mean that it can be deemed that you have no notice of

15 their contents. It is evidence that can't be ignored; we concede that.

16 But we don't accept that the Trial Chamber was right in inferring that he

17 had a power to remedy a problem simply from the evidence which suggests

18 that he had notice or knowledge of it. We also don't accept that the

19 Trial Chamber was correct in inferring that he had a power to remedy the

20 problems at the Heliodrom and other detention centres from other factors

21 that the Trial Chamber cited, including firstly the fact of his de jure

22 authority emanating from many of the positions he held 5th of July,

23 Service for Exchange; the 6th of August commission for exchange; powers

24 that he had after the 10th of December. I have already addressed you in

25 response to those findings.

Page 692

1 Secondly, we don't accept that the conclusion reached by the

2 Trial Chamber that Mr. Pusic had powers to remedy the appalling

3 conditions at these detention centres can be inferred from evidence that

4 he had the authority to transfer prisoners out of one detention facility

5 to another. This is a factor that's heavily relied on by the Trial

6 Chamber, and they say that Mr. Pusic had the power to transfer prisoners

7 from one facility to another, not just in respect of the Heliodrom but

8 also other detention facilities. It's our position in response that the

9 evidence cited by the Trial Chamber does not go to establish this. If we

10 look just at paragraph 1144 [Realtime transcript read in error "1044"] of

11 volume 4 of the Trial Chamber's judgement, there's reference to a report

12 which is dated the 5th of July, 1993. This is a report -- I have been

13 asked to correct the paragraph reference. It should actually be 1144 not

14 1044.

15 Your Honours, I was referring to a report dated the 5th of July,

16 1993. This is a report that was sent by Josip Praljak's superior,

17 Stanko Bozic, who was also a warden at the Heliodrom; and remember what

18 was said by the Prosecution on Friday as to who had ultimate control over

19 the wardens and commanders at the Heliodrom. Mr. Bozic complained that

20 soldiers were firing at random at detainees. He in his report requested

21 reinforcements to stop this happening again. We apply our

22 handle-with-care warning to this document once again. When look at this

23 closely, Your Honours, you will see that this is not an order that was

24 written by Mr. Pusic. It was a report sent to him and not just sent to

25 him exclusively but also circulated to others, we would suggest, who are

Page 693

1 far higher in the chain of command. There's no evidence that he ever

2 replied. Your Honours, in a similar vein, there is another document, a

3 report, this time that he sent, Mr. Pusic sent, on the 6th of January,

4 1994, that is relied on by the Trial Chamber once again to support the

5 same conclusion that Mr. Pusic had the authority to order the transfer of

6 prisoners between facilities. This is referred to at

7 paragraph 1140 [sic] at volume 4. It's a report he September to Marjan

8 Biskic asking for permission to move detainees from one facility to

9 another. It's not an order, it's a request. If anything, it proves

10 exactly the opposite of what the Trial Chamber tried to infer or asked us

11 to infer. It shows that Mr. Pusic did not have the power/authority to

12 transfer -- order the transfer the prisoners himself unilaterally from

13 any facility. We go further than that, we also say that he did not have

14 the power to unilaterally order the release of prisoners, and that's an

15 additional submission that's documented at length in our appeal brief.

16 And if I may briefly at this conjuncture just correct the last transcript

17 reference, it should read "1142" rather than "1140."

18 But, Your Honours, we say that in this and every case cited by

19 the Trial Chamber, the evidence shows that whenever Mr. Pusic did

20 anything, he had to seek the approval of higher authorities and could

21 only act on their orders. And in this particular case, he had to seek

22 authorisation from Mr. Biskic - a man who was never charged, a man who

23 was presented as a Prosecution witness at his trial.

24 We would also say something briefly about the timing of this

25 request. The date is the 6th of January, 1994. Remember, Mate Boban's

Page 694

1 order on the 10th of December, the efforts made to dismantle detention

2 centres thereafter. It's clear that there is evidence that Mr. Pusic

3 attends meetings often with senior figures present, but the decision to

4 dismantle HVO detention centres was taken by others at a much higher

5 level than his. It's clear there is evidence that he presents reports at

6 these meetings, but we say his interaction with the leadership, the

7 others present, is one way that he presents reports, there's no real

8 evidence of any feedback. Can it seriously be suggested that Mr. Pusic

9 decided policy, made decisions at these meetings? We would say that his

10 role is more appropriately described as that of a subordinate or clerical

11 officer, someone charged with collating information and issuing discharge

12 papers. Again this is a submission that's repeated at length in our

13 appeal brief, but it's also something that has some grounding in the

14 Trial Chamber's decision if one looks at volume 4, paragraph 1166.

15 And we apply this analysis to evidence relied on by the Trial

16 Chamber in December 1993 in respect of Ljubuski detention facilities that

17 Mr. Pusic issued documents that allowed the release of detainees from

18 that facility to third countries and also issued documents that

19 authorised their transfer to other detention centres; and that's cited at

20 volume 2 paragraph 2229. Your Honours, this evidence does not prove to

21 the criminal standard that Mr. Pusic had any significant or unilateral

22 powers to order the release or transfer of prisoners.

23 Moving on to Dretelj. I would refer Your Honours to

24 paragraphs 1167 to 1170 of volume 4 of the Trial Chamber's judgement.

25 Once again, the Trial Chamber adopts the same pattern in its reasoning as

Page 695

1 evidence of Mr. Pusic's so-called powers. It cites the fact - and this

2 is at paragraph 1167 - it cites the fact that on the 20th of July, 1993,

3 he is appointed as part of a working group to deal with overcrowding in

4 the various HVO detention facilities. As we state in our appeal brief,

5 Mr. Pusic is very much the junior member of this commission. Indeed, the

6 evidence shows that on the next day, the 21st of July, 1993, when the

7 same commission reports back to the cabinet, he is not one of the

8 individuals present at that meeting. And, Your Honours, this is

9 rehearsed at paragraph 206 of our appeal brief.

10 If we look now and turn to the Trial Chamber's findings in

11 relation to the Gabela detention facility, paragraph 1174 at volume 4,

12 again reference is made to Mr. Pusic's de jure powers arising from his

13 membership of the 6th of August, 1993, commission. I won't repeat the

14 position we take in relation to that assertion, but I would refer you to

15 paragraph 1169. Again, the Chamber places reliance on Mr. Pusic's

16 present membership of that commission on the 20th of September -- sorry,

17 July -- I apologise, Your Honours. What I'm referring to is Mr. Pusic's

18 presence at a meeting on the 20th of September where he is addressed by

19 members of the ICRC and he is told that they have reports that detainees

20 are suffering malnutrition at the Gabela detention facility. So as we've

21 said before, being realistic, we accept that could be inferred as

22 evidence that Mr. Pusic knew what was going on; doesn't necessarily mean

23 that he had any powers to remedy those conditions.

24 The same analysis applies if we turn to the report cited at

25 paragraph 1175, also in relation to Gabela. This is evidence of a report

Page 696

1 that is circulated to Mr. Pusic on the 29th of September, 1993, by

2 Ivo Kuric [phoen]. Again, it may establish knowledge; doesn't go to

3 establish authority or power.

4 Turning now to the Ljubuski detention facility, referring

5 Your Honours to paragraph 1182 at volume 4. There is evidence cited by

6 the Trial Chamber that Mr. Pusic visited this facility at least twice.

7 The Trial Chamber goes on to say that he knew that it had limited

8 capacity, that there was overcrowding. These matters all go to establish

9 knowledge on his part; we concede that. But we fail to see how the

10 Chamber can infer that he had any powers to remedy those conditions from

11 this evidence. Again, at paragraph 1182, there is reference made by the

12 Chamber to the -- or to evidence that suggests that Mr. Pusic ordered or

13 could order the transfer of detainees between facilities and there are

14 documents produced to show that this is what occurred between May and

15 September 1993. Your Honours, we issue our handle-with-care warning

16 again. These orders are, in fact, notes not written by Mr. Pusic but by

17 Witness E. They are notes of orders presumably received orally by

18 Witness E, and it says on the documents: Orders from Mr. Pusic and

19 Mr. Koric [phoen]. Note their respective positions in the hierarchy.

20 Note what was said on Friday.

21 Your Honours, our submissions are further elaborated in our

22 appeals brief; I don't intend to rehearse them here. I'm simply trying

23 to draw your attention to these points that we have raised that we say

24 the Trial Chamber failed to address. I know that at your leisure, once

25 this hearing concludes, you will have the opportunity to look at them in

Page 697

1 more detail. But what we say in drawing your attention to this material

2 is that there is no evidence that -- as the Trial Chamber found that

3 Mr. Pusic had the power to remedy these issues and no justification for

4 the findings that the Trial Chamber arrived at.

5 Your Honours, in detailing with this section, our overall

6 submission is this: We say that it has not been proved beyond reasonable

7 doubt that Mr. Pusic made any significance contribution to the JCE

8 because of the way he exercised certain powers he is said to have in

9 respect of forced labour or because of the way he failed to exercise any

10 powers he is said to have in respect of the conditions of detention. We

11 say those findings are unwarranted.

12 Your Honours, if you are with us in respect of our submissions so

13 far, dealing with question 9, dealing with this issue of forced labour

14 dealing with this issue of the conditionals of detention and the

15 mistreatment of detainees and Mr. Pusic's power to remedy those problems;

16 if you are with us, then we submit that this will have important

17 ramifications for Mr. Pusic's conviction in general. It will have

18 ramifications for his conviction for the other offenses on the indictment

19 which he was also acquitted for which don't feature in the list of

20 questions that you have provided us. Because we say that the same

21 analysis that we have just outlined and developed applies to his

22 so-called powers over less serious but nonetheless important aspects of

23 the crimes he was convicted of, specifically his role in prisoner

24 releases, his role in exchanges, humanitarian evacuations, and the

25 allegation that he deliberately spread false information.

Page 698

1 Your Honours, once again I do not intend to repeat what is in the

2 brief and I will be finishing very shortly. I would say that any

3 incisive, penetrating examination of the evidence in this case will show

4 that Mr. Pusic did not have any unilateral powers in any of these areas

5 to issue orders. We say the Trial Chamber erred in its decision globally

6 because they tried to compartmentalise its findings. It said that in

7 respect of any dealings with detention centres, Mr. Pusic had substantial

8 powers; but on the other hand it said that when looking at non-detention

9 centre-related matters, Mr. Pusic only had significant powers. Your

10 Honours, we suggest that what should have happened is that the Trial

11 Chamber should have linked the evidence to do with detention centre

12 matters and non-detention matters together. It should have linked the

13 evidence of witnesses such as DZ and DV - and I refer you to our appeal

14 brief - witnesses who gave evidence about their dealings with Mr. Pusic

15 on the issues of humanitarian evacuations, prisoner releases, prisoner

16 exchanges. What DZ and DV said is that it appeared to them that

17 Mr. Pusic had to have the permission of his superiors to take decisions

18 and to act. It should have linked those findings with the evidence of

19 Mr. Biskic, who said as you will recall that Mr. Pusic could not give

20 orders to him or to anyone else. We say the only way that you can make

21 sense of Mr. Pusic's role is by linking this evidence, particularly as

22 all three witnesses - DZ, DV, Biskic - were Prosecution witnesses.

23 Your Honours, we understand the Trial Chamber's desire to make

24 sure that those responsible for the appalling events at the Heliodrom and

25 other detention facilities should be prosecuted and punished. We

Page 699

1 understand their revulsion when confronted with the evidence of the

2 terrible things that happened at those centres. We saw some of that

3 evidence on Friday. We may see more of that evidence later today. But

4 we say even if that evidence shows that Mr. Pusic may been informed of

5 what was happening on the ground in those centres, when it is viewed

6 clinically and dispassionately - as it must be in any court of law - it

7 does not prove to the criminal standard that he could have remedied those

8 problems. And it follows from that, we say, that Mr. Pusic could not and

9 did not make a substantial contribution to the JCE.

10 Your Honours, I don't need to remind you that it's not for the

11 Defence to prove anything in this case. We didn't put on a positive case

12 at trial; that's because we took the view - and we stick to this view -

13 the Prosecution evidence adduced did not come close to establishing

14 Mr. Pusic's guilt beyond reasonable doubt. Your Honours, I will end here

15 with a quote from an author, Robert Caro. This quote came to mind

16 because I've just finished his third 1.000-page volume, a monumental

17 biography of Lyndon Johnson, which is now what I consider to be light

18 reading, having practised here for ten years. But, Your Honour, Mr. Caro

19 is a useful author I would suggest to refer to whenever one is called to

20 examine the extent and ways in which political power can be wielded.

21 There are two famous quotes attributed to Mr. Caro. First he said:

22 "What I believe is always true about power is that power

23 reveals."

24 Second, he said:

25 "You can use a biography to examine political power but only if

Page 700

1 you pick the right guy."

2 Your Honours, we say the Prosecution and the Trial Chamber who

3 relied on the evidence adduced at trial did not pick the right guy in

4 this case. They picked a guy who when Slobodan Praljak was told of his

5 name as one of the accused, he said he had to ask his secretary who he

6 was. Who is Mr. Pusic? And, Your Honours, can you find that at

7 transcript reference 41502 to -3.

8 Consequently, substitute "biography" for "trial" in the quote

9 from Mr. Caro, we say were a proper, thorough, incisive, penetrating

10 analysis of the evidence of his role in this case reveals is not the

11 exercise of any significant degree of power in the hands of Mr. Pusic but

12 quite the opposite: A glaring absence of power.

13 Thank you, Your Honours.

14 JUDGE AGIUS: Thank you. Is that all from the Pusic -- yeah,

15 okay. Thank you.

16 One moment.

17 [Trial Chamber confers]

18 JUDGE AGIUS: Okay, there is agreement amongst the Bench. You

19 will start and we will stop at 11.30 for a break. All right? And then

20 continue.

21 MR. STRINGER: Yes, Mr. President, thank you. My colleague

22 Ms. Bassett will be starting the Prosecution's submissions in respect of

23 Mr. Pusic, and then she will be followed by Ms. Goy.

24 MS. BASSETT: Good morning, Your Honours. Marisa Bassett for the

25 Prosecution.

Page 701

1 JUDGE AGIUS: Good morning.

2 MS. BASSETT: My colleague Mr. Sahota has told you that Mr. Pusic

3 is a person of little consequence. His appeal makes him out to be a

4 clerk without significant or substantial powers, charged with collating

5 information and processing discharge papers. This picture is misleading.

6 Berislav Pusic was a trusted implementer of the common criminal plan.

7 Although the Trial Chamber found - as Mr. Sahota has told you - that

8 Pusic was not a high-ranking HVO official, it concluded in volume 4,

9 paragraph 1093, that he was entrusted by high-ranking officials with

10 powers that allowed him to play an important role in implementing the

11 common criminal plan. The confidence that other JCE members placed in

12 Mr. Pusic allowed him to take on increasingly important roles in areas

13 central to the implementation of this plan.

14 Pusic accepted more and more responsibility and used his powers

15 to further the common criminal plan, volume 4, paragraphs 1202 and 1204.

16 Between October 1992 and the summer of 1993, he rose. He rose from

17 having occasional involvement in prisoner exchange in late 1992 and

18 ordering prisoners to perform labour assignments in early 1993, to

19 serving with other JCE members on commissions and delegations related to

20 detention to - by the summer of 1993 - becoming head of the HVO's

21 exchange service and head of the commission for HVO prisons and detention

22 centres.

23 It was as head of the exchange service - officially called the

24 Service for the Exchange of Prisoners and Other Persons - that Pusic

25 played his most important role in the JCE, strategically exchanging and

Page 702

1 releasing Bosnian Muslims held by the HVO in its network of detention

2 centres in order to advance the HVO's objective of removing the Muslim

3 population from the so-called Croatian provinces. Volume 4,

4 paragraph 1202.

5 Pusic frequently interacted with other JCE members who assigned

6 him important tasks and appointed him to official posts. The Chamber

7 found particularly that Pusic had regular contact with Prlic and Coric

8 throughout his JCE membership between April 1993 and April 1994.

9 Volume 4, paragraphs 1093 and 1221. But the Chamber's findings also show

10 him interacting with most of the named JCE members.

11 In April 1993, Coric appointed Pusic to participate in exchanges

12 on behalf of the military police. As time went on, Pusic's interaction

13 with Coric on issues related to detention became so constant that

14 representatives of international organisations came to see Pusic as

15 Coric's right-hand man. Pusic served alongside Petkovic on a joint

16 ABiH-HVO delegation to Sovici and Doljani following the April 1993

17 attack. On the 5th of July, 1993, Prlic appointed Pusic head of the new

18 exchange service. Later that month, Prlic also assigned Pusic to a

19 working group to inspect detention sites in Capljina. In August 1993,

20 Stojic appointed Pusic to head of the commission for HVO prisons and

21 detention centres.

22 Pusic also played a key role on the working group, implementing

23 Mate Boban's 10th of December, 1993, decision to close the network of HVO

24 detention centres while systematically removing the detainees from

25 Herceg-Bosna to advance the criminal plan. Pusic also frequently

Page 703

1 reported to Prlic's government on this topic.

2 Your Honours, all of these men trusted Pusic with roles important

3 to the implementation of the common criminal plan, and Pusic continued to

4 accept these positions - positions with greater and greater

5 responsibility - demonstrating that he embraced the common plan and the

6 means used to implement it.

7 The Chamber's conclusion - that Pusic was a JCE member who

8 significantly contributed to the common plan and shared the intent for

9 the crimes forming part of it - was reasonable. My colleague Ms. Goy

10 will address these issues and the grounds of appeal in detail in her

11 submission. She will also answer the Chamber's questions 4(c) and 9.

12 But before I turn the floor over to Ms. Goy, I'm going to provide

13 an overview of the HVO's network of prisons and how it served as a

14 vehicle to implement the common plan to remove the Muslim population from

15 Herceg-Bosna. Your Honours have heard about this network from some of my

16 colleagues last week already, but understanding this network is important

17 to understanding Pusic's contributions to the common criminal plan

18 because it is within this network that Pusic played his most important

19 roles. He ordered prisoners to perform dangerous, unlawful forced

20 labour. He organised prisoner exchanges and releases for the purpose of

21 removing these persons from Herceg-Bosna. He played a key role in

22 closing the detention centres in the network, methodically expelling

23 detainees in this process. And he served as the link between the network

24 and the most important JCE members. Volume 4, paragraphs 1202 to 1204

25 and 1209.

Page 704

1 The Chamber refers to the HVO detention centres as a "unified

2 network," volume 4, paragraphs 980 and 982. This network included the

3 major detention centres of Heliodrom, Ljubuski, Dretelj, Gabela, Vojno,

4 and Vitina Otok, as well as smaller locations throughout Herceg-Bosna.

5 Volume 4, paragraph 890 and footnote 1677. These detention centres were

6 connected. We can see this, in particular, from the co-ordinated

7 movements of detainees between centres, often for the purpose of

8 eventually removing these detainees from Herceg-Bosna.

9 There is a clear summary of the network's functioning at

10 volume 4, paragraph 999, where the Chamber explained it as a part of a

11 system to "expel the Muslim population." The centres were linked to the

12 expulsions at the very heart of the JCE.

13 The Chamber summarised:

14 "The members of the JCE set up a system to expel the Muslim

15 population which, more specifically, consisted of detaining civilians,

16 holding detainees in bad detention conditions, sending some detainees to

17 work on the front line, and removing detainees and their families from

18 the territory of the HZ(R)HB on their release."

19 As the JCE pursued its plan to remove the Muslims from the

20 provinces it considered Croatian, HVO forces conducted large-scale

21 arrested of Muslims. This included arrests also of Muslims in

22 West Mostar. Many were detained in HVO detention centre network.

23 By June 1993, removals became - in the Chamber's words - "more

24 efficient," as the JCE introduced an organised system of deportation

25 using releases from the prison network. Volume 4, paragraph 64.

Page 705

1 Across the network, terrible conditions prevailed. These

2 conditions were calculated to coerce detainees into agreeing to leave

3 Herceg-Bosna for ABiH-held territory or for third countries. Volume 4,

4 paragraph 64. Facilities were overcrowded and unhygienic. Food was

5 scarce. One detainee lost 47 kilos during his nine months of

6 imprisonment. Heliodrom was so overcrowded that detainees had to take

7 turns lying down. At Ljubuski there was only one toilet for up to 262

8 men. Prisoners were brutally treated. One was administered electric

9 shocks while his ears were filled with water. Another had his teeth

10 broken by a pistol that was shoved into and then pulled out of his mouth.

11 They were humiliated. After being beaten with a pickax, a prisoner was

12 told to lick his balija blood from the ground. Detainees were killed.

13 Another terrifying aspect of the conditions was the use of prisoners for

14 dangerous and unlawful forced labour. As Your Honours have heard,

15 detainees from Heliodrom, Vojno, and Ljubuski were made to reinforce

16 fortifications, collect HVO bodies on the front line, and serve as human

17 shields. They were sent to mingle with HVO forces to prevent sniper fire

18 or were dressed in uniform, given fake rifles, and placed in positions

19 where they would draw fire. They were routinely shot and killed.

20 Detainees faced the risk of getting one of these work assignments every

21 day.

22 There's powerful testimony from numerous victims in evidence.

23 Let me tell you about one of the victims, Halid Jazvin. Jazvin was a

24 detainee who performed labour almost every day for the four months that

25 he was detained at the Heliodrom. One day, an HVO soldier took Jazvin

Page 706

1 and 12 others, including a prisoner named Aziz, to the front line in

2 Mostar. Jazvin was ordered to move sandbags to build barricades. As the

3 battle became intense, the soldier ordered Jazvin to collect wounded HVO

4 soldiers. Jazvin said:

5 "When we arrived outside, there was a wounded HVO soldier but

6 about 20 metres away I noticed three or four bodies lying together in a

7 pile. I immediately recognised one of these bodies as Aziz. I ran over

8 to Aziz's body to see if he was alive. While I was approaching him I was

9 shot in the leg. I crawled and I touched Aziz's body to see if he was

10 alive. He was dead. The other two or three bodies were also prisoners."

11 The HVO soldier, Jazvin reflected, had only cared about that

12 wounded HVO soldier and not the lives of any of those Muslim prisoners.

13 Your Honours, that's from Exhibit P10213, paragraph 20.

14 These conditions and mistreatment served their intended coercive

15 purpose. Given the option, many detainees agreed to leave their homes

16 permanently in order to be released from detention. Of the thousands

17 detained, many were released on the promise that they would depart for

18 third countries via Croatia. Croatian officials helped facilitate this

19 process by ensuring that the expelled were issued transit visas allowing

20 a brief, temporary stay in Croatia before moving on to their final

21 destinations. Volume 2, paragraph 1644. I also refer Your Honours to

22 volume 4, paragraphs 1210 and 120, citing Exhibit P9679. And I further

23 refer Your Honours to Exhibit P10048.

24 Other detainees were released to ABiH-held territory, including

25 to besieged East Mostar, where they continued to be terrorised. This

Page 707

1 co-ordinated expulsion process was a core aspect of the implementation of

2 the common criminal plan.

3 To secure a release, a detainee needed to sign a form indicating

4 their third country destination. The detainee would be returned home,

5 given a few hours, if any, to pack, gather their family, and then they

6 would be taken to Croatia by bus where they were allowed to remain

7 temporarily until they could move on to their destination state. The

8 Chamber makes findings about these types of releases in volume 2,

9 paragraphs 1642 to 1650 with regard to Heliodrom; as well in 1870 to 1875

10 for Ljubuski; and in volume 3, paragraphs 143 to 145 and 272 to 274 for

11 Dretelj and Gabela respectfully. I also refer Your Honours, in

12 particular, to Exhibit P9680.

13 This expulsion process was a major part of the implementation of

14 the common plan, so much so that Pusic referred to such deportations as

15 "standard practice" in a proposal that he sent to Prlic in December 1993.

16 Your Honours, this is Exhibit P7102, which can you see is a proposal from

17 Pusic sent to Prlic personally. At page five he writes:

18 "A recent standard practice has been that persons in possession

19 of proper documentation (letters of guarantee, transit visas by the

20 Republic of Croatia office for displaced persons) are released after the

21 SIS checking and they go to third countries."

22 The SIS, Your Honours, is the HVO's security and information

23 service.

24 Many who did not agree to leave or who were unable were kept in

25 HVO's detention system and used - in the Chamber's words - "as a form of

Page 708

1 currency." Volume 4, paragraph 1121. I also direct Your Honours to

2 Exhibit P7158 as an example. They would be exchanged to ABiH-held

3 territory for Croats to further the HVO's efforts to alter the ethnic

4 composition of the so-called Croatian provinces. This practice too is

5 reflected in Pusic's proposal to Prlic.

6 After months of effecting deportations, he tells Prlic that the

7 exchange service is only interested in prisons "only for the purpose of

8 seeking certain persons for exchange."

9 JCE members used these methods - release and release through

10 exchange - for the purpose of removal of Muslims both before and after

11 Mate Boban issued his 10th of December, 1993, order -- decision excuse

12 me, to close the HVO's detention centres. The evidence, however, shows

13 that these removals began to happen at a more rapid pace from

14 mid-December 1993.

15 The Chamber found that Pusic had a significant role in this

16 process. His powers increased as he took on his key role in the closure

17 of the detention centre network, serving as a member of Boban's working

18 group and diligently and methodically working to ensure that those

19 leaving the facilities also left Herceg-Bosna. Volume 4,

20 paragraphs 1050, 1203, and 1209. The last detainees in the HVO detention

21 network were released through exchange in April 1994.

22 Unless Your Honours have any questions, I will now turn the floor

23 over to my colleague, Ms. Goy.

24 JUDGE AGIUS: Yes, Ms. Goy.

25 MS. GOY: Good morning, Your Honours.

Page 709

1 I will start my submissions by briefly addressing the submissions

2 on ground 3 of Pusic's appeal on the ultimate purpose and the common

3 criminal purpose before moving to Pusic's criminal responsibility under

4 joint criminal enterprise.

5 Your Honours, counsel for Mr. Pusic has today challenged the

6 Chamber's findings on the ultimate purpose and the common criminal

7 purpose. The Chamber's findings on the JCE members' ultimate purpose

8 have been addressed throughout last week and they are amply supported by

9 a wealth of evidence cited in volume 4, paragraphs 6 through 24. This

10 includes Tudjman's voluminous presidential transcripts, the evidence of

11 those with whom Tudjman worked closely, such as Croatian Prime Minister

12 Josip Manolic, and international representatives such as US Ambassador

13 Peter Galbraith and Herbert Okun.

14 Counsel for Mr. Pusic today asked whether it was necessary for

15 the Trial Chamber to go into a lengthy discussion of the ultimate

16 purpose. While Pusic's liability does not hinge on the ultimate purpose

17 in the sense of the JCE members' long-term plans what to do after they

18 had achieved ethnic domination, it was nevertheless proper for the Trial

19 Chamber to conduct their inquiry into the ultimate purpose, as the

20 ultimate purpose defines the overall goal that the common criminal

21 purpose sought to achieve and therefore constitutes the relevant context

22 for the common criminal purpose. And this common criminal purpose was

23 amply supported by the evidence, the evidence that included the pattern

24 of crimes; the co-ordination of the political and military leadership of

25 Herceg-Bosna; the collaboration of this leadership with Croatian

Page 710

1 authorities; the co-operation of the accused and others to carry out

2 criminal attacks, denials, and cover-ups; and the co-ordinated efforts to

3 move Croats into areas claimed as Croatian; in addition to the JCE

4 members' direct expressions of intent. And I refer Your Honours to

5 volume 4, paragraph 51, 54, 58, 62 through 66, and 1219.

6 I would now like to turn to Mr. Pusic's individual criminal

7 responsibility as a member of the joint criminal enterprise.

8 And I would like to first address Mr. Pusic's significant

9 contributions to the common criminal plan, that is grounds 1 and 6 of his

10 appeal, before turning to his shared intent.

11 Before responding to the individual contributions in more detail,

12 I would first like to address two challenges that were repeated today

13 which are based on an erroneous understanding of the legal framework of

14 JCE liability and, therefore, cannot undermine the Chamber's conclusion.

15 First is that counsel today said that Pusic had no power, no

16 authority over others, but Pusic's contributions do not hinge on his

17 authority over others on a superior/subordinate relationship vis-à-vis

18 the perpetrators. As I will address in a moment, Pusic had authority in

19 areas of forced labour and prison release and this did not require that

20 he had overall superior/subordinate relationship vis-à-vis those that

21 actually opened the prison doors or that took the persons out for forced

22 labour. Rather, all that was required was that Pusic had the power in

23 relation to the use of forced labour and release, and the evidence shows

24 that he did.

25 Second, I would like to address Pusic's challenges based on lack

Page 711

1 of autonomous decision-making. To constitute a contribution to a JCE,

2 the conduct does not have to be based on an autonomous decision. The

3 jurisprudence only requires assistance in or contribution to the common

4 criminal plan. Even the implementation of somebody else's decision can

5 contribute to that plan. For example, in Kvocka the Appeals Chamber

6 upheld the finding that Prcac contributed to the JCE. Prcac had some

7 influence in his position as administrative aide at Omarska camp and

8 contributed to the functioning of the camp and, therefore, to the common

9 criminal purpose. That's in the Kvocka appeal judgement paragraph 622.

10 Therefore, Pusic's arguments regarding the lack of autonomous

11 decision-making power should be dismissed.

12 But, Your Honours, let me now turn to the reasonableness of the

13 Chamber's factual conclusion that Pusic made a significant contribution

14 to the common criminal purpose. Pusic's contributions centred mainly

15 around the network of detention facilities, a network which - as my

16 colleague Ms. Bassett has explained - was central to the implementation

17 of the common plan. Pusic mainly contributed to the common plan in four

18 ways: One, by authorising the use of Muslim detainees for dangerous

19 unlawful forced labour, including at the front line, forced labour which

20 contributed to the horrible detention conditions that coerced the

21 detainees into agreeing to leave Herceg-Bosna upon release; two, by using

22 his powers over HVO detainees to remove them from Herceg-Bosna, including

23 when implementing Boban's decision to close detention facilities; three,

24 by being the link between the network of the detention facilities and the

25 most important members of the JCE, such as by keeping them updated on the

Page 712

1 implementation of Boban's decision; and four, by keeping persons detained

2 who he knew were unlawfully detained and who were held in terrible

3 conditions and were mistreated. I will address all four contributions in

4 turn and - in this context - will also respond to Your Honours' question

5 number 9.

6 The Defence challenges Pusic's power and contributions, but his

7 powers are only relevant inasmuch as they are used or intentionally not

8 used to further the plan. The evidence shows that Pusic did use his

9 powers to further the plan. Pusic used his power to authorise unlawful

10 forced labour, labour of a military nature or purpose and extremely

11 dangerous. Volume 4, paragraphs 1054 and 1149. Forced labour was one of

12 the means to expel the Bosnian Muslims from Herceg-Bosna. The detainees

13 were exposed to the daily risk of being selected for highly dangerous

14 forced labour on the front line, so dangerous that they risked being

15 killed. And it formed part of the horrible features of the detention

16 that the detainees could only avoid by agreeing to leave Herceg-Bosna

17 with their families upon release.

18 The Chamber's findings that Pusic authorised forced labour is

19 reasonable. Although the Chamber could not pin-point to the exact source

20 of Pusic 's power to authorise forced labour, the record is replete with

21 evidence showing that Pusic, in fact, exercised it; that Pusic had no

22 de jure power here is irrelevant. Importantly the Chamber noted that the

23 term "order" and "approval" that occur in the documents are used

24 interchangeably to refer to the step in the process that preceded the

25 sending out of detainees for forced labour. That's volume 2,

Page 713

1 paragraph 1471. The evidence shows that Pusic approved requests for

2 forced labour for Heliodrom detainees to build bunkers, collect bodies of

3 fallen HVO soldiers, and to work on the front line. Volume 4,

4 paragraph 1149. And I would like to emphasise here that the Chamber did

5 not only rely on the evidence of Josip Praljak. Here, for example, we

6 see a request for group of prisoners of 5 July 1993, and we can see in

7 the left bottom corner highlighted in yellow "approved by Berko Pusic."

8 And we know from Exhibit P2020, page 2, that Berko is Berislav Pusic.

9 And the request says:

10 "Please provide us a group of five prisoners for building

11 bunkers." Exhibit P03194.

12 A look at the military police administration log-book of requests

13 and approvals for forced labour, Exhibit P08043, shows that in July 1993

14 alone Pusic approved or ordered close to 700 labour assignments.

15 Your Honours see here the second page of the log-book and you see the

16 line number, the subject of the work assignment, the date, and the file

17 number, and the formation that submitted the request, and also who

18 approved it. And we have collected from this document the lines where

19 labour was approved by Pusic in July 1993, and this adds up to 700

20 individual assignments.

21 Your Honours, I would just like to note here that we relied on

22 the B/C/S original because the translation unfortunately contains a

23 number of mistakes, so not all numbers reflected on our compilation are

24 found in the translation but they are found in the B/C/S original.

25 Detainees were also sent to perform labour on the front line

Page 714

1 pursuant to general orders of Pusic. This means that Pusic had broad

2 powers in relation to forced labour. And I refer Your Honours to

3 Exhibit P03583 and P03633.

4 Contrary to the suggestions by the Defence, Marjan Biskic's

5 testimony does not undermine the Chamber's conclusion. Biskic was deputy

6 minister of defence for security and military police of Herceg-Bosna from

7 December 1993, and he only arrived in Herceg-Bosna on 8 November; and

8 therefore, his knowledge was limited to late 1993. Transcript pages 1534

9 and 153 -- 15034, excuse me, and 15317.

10 And in any event, Biskic confirmed that while there was a de jure

11 procedure and chain of command:

12 "In practice things were somewhat different." Transcript page

13 15241.

14 Biskic also added that Heliodrom Warden Bozic never refused

15 permission to send detainees on forced labour. That's transcript page

16 15301 through 15302. And the evidence shows that had included times when

17 Pusic ordered or approved the labour, Exhibit P02385 and Exhibit P03596.

18 Therefore, the Chamber's conclusion that Pusic contributed to the common

19 criminal purpose by authorising unlawful forced labour is reasonable,

20 that Pusic was not the only one who authorised forced labour is without

21 consequence.

22 Pusic also contributed to the joint criminal enterprise by using

23 his power over Muslim detainees to remove them from Herceg-Bosna, in

24 particular when implementing Boban's decision to close the detention

25 facilities. Volume 4, paragraphs 1203 and 1204.

Page 715

1 As Ms. Bassett explained, the Muslim detainees were often

2 released under the condition that they left Herceg-Bosna, often even BiH,

3 with their families. Volume 4, paragraph 1132. Expelling these Muslim

4 detainees and their families was at the heart of the common criminal

5 purpose. The evidence shows that Pusic was involved in these expulsions,

6 such as from the Heliodrom, Gabela, and Ljubuski prison.

7 To find that Pusic had the power and did organise and approve

8 releases as of May 1993, the Chamber relied on numerous documents showing

9 that Pusic ordered and approved releases. Volume 4, paragraph 1049. In

10 particular, the evidence shows that Pusic was authorising and approving

11 releases from the Heliodrom in the summer and autumn of 1993, according

12 to a procedure that Pusic has set out in the decision of 12 August 1993

13 as head of the commission for HVO prisons and detention centres.

14 Volume 4, paragraph 1158. And this procedure included - in addition to

15 approval by Pusic - approval by the SIS, the HVO's information and

16 security service; and the Department of Criminal Investigations of the

17 military police; as well as guarantees that the detainees would leave the

18 territory of Herceg-Bosna. I refer Your Honours, for example, to Exhibit

19 P04450, P4686, P4799, P05094, and P5748. And Your Honours will find

20 these exhibits in footnote 2172 of volume 4.

21 The Chamber reasonably concluded also that Pusic's powers in

22 organising releases increased in December 1993. Volume 4,

23 paragraph 1050. In particular, following Mate Boban's 10

24 December decision to close the detention facilities, Pusic was involved

25 in expulsions of Muslim detainees from Heliodrom, Gabela, and Ljubuski

Page 716

1 prison. The very same day, on 10 December 1993, Pusic proposed

2 re-organisation of the work of the exchange commission and service.

3 Exhibit P07102. This proposal included the task of "establishing the

4 lists of persons who voluntarily want to leave the areas of the HR HB

5 with the aim of reuniting the families."

6 And here, of course, the meaning of "voluntarily" has to be

7 interpreted in light of the coercive context.

8 Pusic was also part of the working group established to implement

9 Boban's decision. Volume 4, paragraph 1092. And the minutes of the

10 working group session of 11 December reveal Pusic's attitude.

11 "Mr. Pusic believes that they," that's the detainees, "should be

12 released, but that at the same time all measures of organisation,

13 protection, and security should be taken and, in particular, preparing

14 the detainees so that they can be sent abroad."

15 Exhibit P07148, page 5. And then a bit later:

16 "Mr. Pusic believes that people over 50 years of age should be

17 sent or, rather, handed over to the Muslims side on the left bank of the

18 Neretva."

19 That's Exhibit P07148, page 10.

20 And the left bank, as Your Honours will recall, was besieged

21 East Mostar, overcrowded and subject to heavy shelling and sniping.

22 In the working group sessions two days later on 13 December,

23 Mr. Ivica Lucic, the chief of the SIS, the HVO information and security

24 service, presented some data. There are a total of 2.912 persons in five

25 detention centres - and this included Heliodrom, Gabela, and Ljubuski -

Page 717

1 and of these persons, 1.238 will be transferred to the territory held by

2 Muslim armed forces and 295 with proper documentation will be transferred

3 to third countries. Exhibit P07143, page 4.

4 So this was the plan, and the plan was followed through. And

5 Pusic was involved in the execution by organising the expulsions of

6 detainees from the Heliodrom, Gabela, and Ljubuski prison to ABiH-held

7 territory, including East Mostar or third countries, sometimes from

8 Heliodrom via Gabela prison.

9 For example, on 13 December Pusic co-signs an order for release

10 of 14 persons from the Heliodrom to the left bank, i.e., ABiH-held

11 territory in besieged East Mostar. Exhibit P07141.

12 Also on 13 December 1993, Pusic co-signs another order releasing

13 17 persons going to third countries, with a note that they were

14 transferred from Ljubuski to Gabela on 15 December. Exhibit P07140. And

15 I refer Your Honours to volume 4, paragraph 1160, in relation to the

16 Heliodrom; para 1178 for Gabela; and 1183 for Ljubuski prison.

17 As of late December 1993, numerous releases from the Heliodrom

18 were carried out through exchanges. Volume 4, paragraph 1162. And

19 again, Pusic - the head of the Service for Exchange of Detainees and

20 Other Persons - was involved. In this context Pusic did not hesitate to

21 keep some of the prisoners in detention for several months more when that

22 allowed him to negotiate the release of HVO soldiers. Volume 4,

23 paragraph 1166.

24 For example, starting in mid-December 1993, Pusic ordered that a

25 certain number of Muslims remain in detention in the Heliodrom in order

Page 718

1 to be used for exchanges. On 1 March 1994, the HVO, through Pusic, sent

2 121 Heliodrom detainees to Jablanica under ABiH control to be exchanged

3 for 61 POW HVO members and 200 civilians. Volume 4, paragraph 1163.

4 This shows that the exchanges were not limited to POWs but also included

5 civilians. In this regard, I also refer Your Honours to Pusic's report

6 of 31 March 1994, attachment 2. That's Exhibit P08136, pages 2 and 3.

7 Although Boban took the decision to close detention centres on 10

8 December 1993, the last releases conducted through exchanges were

9 organised by Pusic in April 1994. Volume 4, paragraph 1164. Pusic thus

10 clearly contributed to the common plan through releases.

11 Pusic also contributed to the common plan by being the link

12 between the workings of the network of detention facilities and the most

13 important members of the JCE. Volume 4, paragraph 1209. The Chamber

14 based this, in particular, on Pusic regularly informing the HVO

15 leadership about the progress of the implementation of Boban's 10

16 December decision.

17 This finding is reasonable on the evidence, which shows that

18 Pusic sent numerous reports about the implementation of this decision to,

19 among others, the Herceg-Bosna government, the minister of defence, the

20 military police administration, and the embassy of Croatia. Pusic

21 reported twice on 15 December 1993, twice on 18 December, again on the

22 3rd of January, 1994. He also reported without explicit mention of

23 Boban's decision on 24 February 1994, 2 March 1994, 31 March 1994, and 29

24 April 1994. And all reports are listed in footnotes 319 and 320 of the

25 Prosecution response brief.

Page 719

1 For example, on 15 December 1993, Pusic sent the following

2 report. We can see the date in the top left corner, and in the bottom

3 right corner we see that Pusic sent the report as head of the exchange

4 service. And Your Honours can see from the headings that the report

5 relates to Ljubuski, Heliodrom, and Gabela. And I will take Your Honours

6 through these three locations in more detail. It says the following has

7 been done.

8 In relation to Ljubuski:

9 "14 persons were released from prison in Ljubuski and they will

10 go to the left bank on their own will."

11 This own will needs to be read in context, Your Honours.

12 East Mostar remained under siege under intense shelling and sniping and

13 was significantly overcrowded.

14 "(2) 17 persons who will go to the third countries were released

15 and they have necessary documents.

16 "(3) Eight persons who will stay in HR HB in Citluk will go to

17 third countries together with their family members.

18 "Heliodrom.

19 "(1) 57 persons who live in mixed marriages and have Croatian

20 spouse were released from prison in Heliodrom. They will stay in the

21 HR HB, whereas five persons want to go to the left bank because their

22 families are there (expelled before).

23 "(2) 12 Muslim women were released and they stayed on the right

24 bank.

25 "Gabela.

Page 720

1 "With mediation of the ICRC, 83 persons of Muslim ethnicity were

2 released from Gabela. They were transferred to Split from where they

3 will go to the third countries." Exhibit P07187.

4 On 3 January 1994, Pusic reports that a total of 3.167 persons

5 have been released. Of those, 1.935 were released to the left bank -

6 besieged East Mostar - and area under the control of the ABiH; and 343

7 persons were -- 743, apologies, were released to third countries.

8 Exhibit P07468.

9 Your Honours, would this be an appropriate time for the break

10 before I turn to the next contribution?

11 JUDGE AGIUS: [Microphone not activated] -- you've so far used 50

12 minutes of your two hours.

13 MS. GOY: Thank you very much.

14 JUDGE AGIUS: So we will have a break now and reconvene at 12.00,

15 12.00 noon.

16 MS. GOY: Thank you very much.

17 JUDGE AGIUS: Thank you.

18 --- Recess taken at 11.26 a.m.

19 --- On resuming at 12.00 p.m.

20 JUDGE AGIUS: Yes, Ms. Goy.

21 MS. GOY: Thank you, Your Honour.

22 I would like to continue with the fourth contribution, namely,

23 Pusic's contribution to the common plan by keeping persons detained who

24 he knew were unlawfully detained and who were held in terrible conditions

25 and were mistreated.

Page 721

1 Pusic was clearly aware that persons who -- were unlawfully

2 detained. He made and received lists which indicated, from the age of

3 the detainee or from their description as civilians, that they were not

4 lawfully detained.

5 As head of the Service for the Exchange of Prisoners or Other

6 Persons, it was his task to set up a database on prisoners and other

7 persons, Exhibit P03191. In particular, Pusic compiled lists of

8 Heliodrom detainees on 15 September 1993 and received lists of Gabela and

9 Ljubuski detainees. Volume 4, paragraphs 1135, 1171, 1172, and 1181.

10 But Pusic did not release those detained civilians.

11 Pusic was also clearly aware of terrible detention conditions, of

12 overcrowding and mistreatment in detention. Through his role in the

13 network of detention facilities, he had the power to do something about

14 it but, for the most part, he did not. Rather, he contributed to the

15 mistreatment by authorising or approving dangerous forced labour on the

16 front line. Based on personal visits and reports he received, the

17 Chamber reasonably concluded that Pusic knew of problems with the

18 conditions of detention and of overcrowding in relation to Heliodrom and

19 Ljubuski the entire time they functioned, volume 4, paragraph 1143 and

20 1182; in relation to Dretelj and Gabela from July 1993, volume 4,

21 paragraph 1170; volume 3, paragraph 59; volume 4, paragraph 1176. And

22 starting in July 1993, Pusic was also informed of mistreatment of

23 detainees at the Heliodrom volume 4, paragraph 1145.

24 This brings me to question 9 of Your Honours' preparation order.

25 In question 9 Your Honours asked for the basis of the Chamber's finding

Page 722

1 in volume 4, paragraph 1056, that Pusic had the power to resolve problems

2 related to conditions of confinement and mistreatment of detainees in the

3 network of HVO detention centres. The answer is given in the same

4 paragraph, notably Pusic's power to transfer detainees from one detention

5 centre to another. In addition, the Chamber in this paragraph also

6 relied on the power to release detainees.

7 The relevant part of volume 4, paragraph 1056, says:

8 "Berislav Pusic had a role and significant powers in the

9 detention centres, notably the power to transfer detainees from one

10 detention centre to another, to resolve problems related to conditions of

11 confinement and mistreatment of detainees."

12 This becomes even clearly maybe in the original French version of

13 the judgement: [French spoken] [No interpretation]

14 "... Berislav Pusic avait un rôle et des pouvoirs suffisamment

15 importants dans les centres de détention, et notamment celui de

16 transférer les détenus d'un centre de détention à un autre, pour remédier

17 aux problèmes liés aux conditions de détention et aux mauvais traitements

18 des personnes détenues."

19 This reading is further confirmed by volume 4, paragraph 1143, as

20 well as the Chamber's findings on Pusic's responsibility under JCE 1 in

21 volume 4, paragraph 1203, where the Chamber noted that Pusic:

22 "... never took the necessary measures to improve the conditions

23 or to put a stop to the mistreatment such as moving the detainees to

24 another detention centre or notifying the relevant authorities."

25 Thus, Pusic could have improved the conditions in detention and

Page 723

1 alleviated the mistreatment by releasing and transferring detainees or by

2 notifying the relevant authorities. Pusic had the power to do so.

3 I have already discussed Pusic's power in relation to release.

4 In addition, he could have transferred detainees. Pusic had the power to

5 transfer detainees from one detention facility to another. In addition

6 to the two pieces of evidence relied on by the Trial Chamber in volume 4,

7 paragraph 1056, the record shows that Pusic on numerous occasions -

8 either individually or jointly with others - ordered transfers of

9 detainees between detention facilities. We have listed them in

10 paragraph 51 of the Prosecution's response brief.

11 In particular, the Chamber found in volume 4, paragraph 1182,

12 that between May and September 1993 Pusic ordered the transfer of more

13 than 100 detainees from Ljubuski prison to another detention facility.

14 The evidence shows two transfers, one of 106 and one of 130 prisoners.

15 That's Exhibit P2535 and P05083. The Chamber thus reasonably found Pusic

16 could take action to transfer detainees.

17 To challenge this conclusion the Defence has today in particular

18 pointed to the fact that Pusic proposed transfer of detainees from the

19 Heliodrom to Gabela due to overcrowding at the Heliodrom in January 1994.

20 This proposal was rejected by Biskic, the deputy minister of defence for

21 security and the military police of Herceg-Bosna.

22 But, first of all, in testimony, Biskic explained the reasons he

23 did not approve of this transfer. Namely, because they had established a

24 company to provide security at the Heliodrom and that detainees should be

25 exchanged from there. Transcript page 15130 and 15326.

Page 724

1 Moreover, Biskic only came to Herceg-Bosna on 8 November 1993 and

2 only had contact with Pusic after Boban's 10 December order. Biskic

3 blocking one of Pusic's attempt from moving detainees does not undermine

4 Pusic's general ability to take measures to transfer detainees.

5 Moreover, the evidence shows that prior to Biskic's arrival in

6 Herceg-Bosna, Pusic did order the transfer of detainees. For example, on

7 6 November 1993 two detainees were transferred from Heliodrom to Gabela

8 or order of Berislav Pusic. Exhibit P00352, page 31; and volume 1 of the

9 judgement, paragraph 196.

10 In addition, Pusic had the power to report to the authorities in

11 charge of prisons, not only when he became part of the working group set

12 up to inspect detention centres, but also as president of the commission

13 for HVO prisons and detention centres.

14 As president of the commission for HVO prisoners and detention

15 centres, it was his formal responsibility to resolve problems relating to

16 detention centres and prisons. Volume 1, paragraph 622.

17 As the detention centres in the network were controlled by the

18 military police administration, the HVO, or both, Pusic could have

19 reported to Coric - the head of the MPA with whom he worked closely - or

20 Pusic could have used his connections with other JCE members, such as

21 Stojic, who ap pointed him as head of the commission on HVO prisons and

22 detention centres, to report on the situation in HVO-run facilities.

23 Despite his ability to take measures to improve detention

24 conditions, Pusic failed to take action. Only in a few limited instances

25 during his JCE membership, Pusic tried to improve conditions by

Page 725

1 suggesting to move people such as in January 1993 in the memorandum to

2 Biskic or proposed new sites to hold detainees and to address

3 overcrowding as part of delegation sent to Dretelj and Gabela in

4 July 1993. This is clearly insufficient. Therefore, the Chamber

5 reasonably found Pusic failed to take measures to address conditions of

6 and mistreatment in detention. Volume 4, paragraph 1143, 1145, 1176,

7 1170, and 1182.

8 Had Pusic raised issues in relation to detention facilities, he

9 would have made the continuation of mistreatment more difficult. Those

10 with powers over the detention centres would have been forced to either

11 address Pusic's concern or remove Pusic from his role in the detention

12 centre network or replace him. This would have disrupted the efficient

13 implementation of the common criminal plan through the network of

14 detention facilities. Pusic's failure to address prison conditions and

15 mistreatment thus furthered the common criminal plan.

16 To conclude on the contributions, Your Honours, on the basis of

17 the totality of the evidence, there can be no doubt that Pusic's

18 contributions taken cumulatively significantly contributed to the common

19 plan. In particular, Pusic authorised and ordered highly dangerous

20 forced labour, which forced Muslim detainees to agree to leave

21 Herceg-Bosna and was a key player in implementing these expulsions of

22 detainees. Grounds 1 and 6 of Pusic's appeal should be dismissed.

23 This brings me to the last part of my submissions, namely,

24 Pusic's shared intend, that is Ground 5. Pusic's conduct including the

25 contributions I just described as well as his utterances show that he

Page 726

1 accepted all means necessary to ethnically the areas that Croats claimed,

2 persecutions; forcible displacement, including to third countries;

3 unlawful detention; cruel and inhumane treatment, including through

4 detention conditions; killings and attacks and through forced labour;

5 unlawful attack and terror; and destruction of Muslim property, including

6 mosques. Deeply involved in detention matters, Pusic was clearly aware

7 that they happened for a purpose. To displace Muslims from Herceg-Bosna

8 with their families, including to third countries. Already in April 1993

9 Pusic knew about mass arrests. Volume 4, paragraph 1203. Pusic knew

10 that terrible detention conditions, mistreatment during detention on

11 forced labour were used to force detainees to agree to leave Herceg-Bosna

12 and BiH if they were released. These Muslims had no real choice. They

13 could either remain detained in extremely harsh conditions where they

14 risked their life during dangerous forced labour or leave Herceg-Bosna.

15 These displacements were not done for the security of the detainees or

16 compelling military reasons. There were no measures in place for the

17 return of detainees or their families. Quite the opposite. By

18 destroying their houses, the HVO made sure they had nowhere to return to.

19 Volume 3, paragraph 787.

20 Pusic saw this in Sovici and Doljani. When Pusic entered Sovici

21 and Doljani on 4 May 1993, together with Petkovic and other members of

22 the delegation, Pusic saw that the villages were burned down. He saw

23 that the men of working age and younger boys were held in harsh

24 conditions, undernourished, and exhausted. One of the commission

25 members, Hasan Rizvic talked about what the delegation saw in Sovici

Page 727

1 school: "We entered the school and what we saw was terrible. The people

2 were exhausted and dirty."

3 And then one line down --

4 JUDGE AGIUS: Ms. Goy, slow down a little bit. Thank you.

5 MS. GOY: Apologies.

6 One line down he said:

7 "They could not sleep without laying on their sides so that they

8 would take up less space. Most started to cry, but still they told us

9 they had not been mistreated. You could tell, however, that this was not

10 true."

11 Exhibit P10358, paragraph 40. And the Chamber's finding show he

12 was right.

13 Rizvic also explained that the delegation heard there were groups

14 of women and children held in another hamlet. That's on paragraph 42 of

15 Exhibit 10358. On the basis of this and other evidence, the Chamber

16 reasonably concluded that Pusic was fully informed about the arrest and

17 detention of the population of the villages. He knew of detention of

18 civilians and of the harsh detention conditions, was aware of the

19 destruction of Muslim property and the mosques. He also knew of the

20 displacement of the detainees from Sovici and Doljani the next day.

21 Nevertheless, Pusic continued to carry out his functions within the HVO.

22 Volume 4, paragraphs 1102, 1104.

23 Pusic was aware not only of the detention but also of the

24 horrific conditions, that they were a necessary means to achieve the

25 expulsion, but he failed to take necessary measures to improve the

Page 734

1 --- Break taken at 12.30 p.m.

2 --- On resuming at 12.45 p.m.

3 JUDGE AGIUS: Yes, Mr. Sahota. You have 30 minutes.

4 MR. SAHOTA: Your Honours, can I, first of all, thank you for the

5 time. I don't propose to, nor is it possible for me to, reply to every

6 argument that's been advanced this morning by the Prosecutor,

7 particularly when the reply of the Prosecution, in my respectful

8 submission, has in large parts consisted of a resuscitation or

9 regurgitation of passages from the Trial Chamber's findings. These have

10 been repeated uncritically. We have our arguments, our position is clear

11 from our appeal brief, and I hope from what I've said this morning, one

12 of our main concerns remains that the arguments that we've advanced in

13 our appeal brief have not been engaged with and directly addressed by the

14 Trial Chamber, a Chamber that only dedicated a few pages in its many

15 thousands of pages of findings to Mr. Pusic. So, Your Honour, if there

16 are any points that I haven't addressed that were raised this morning, by

17 no means does that mean that we accept or concede anything.

18 And, Your Honours, I'll start with this reply by just looking

19 at -- I'm going to focus on question 4 and the issue of forced labour,

20 I'm deliberately focusing on that because, really, in my opinion, that's

21 the most serious allegation against Mr. Pusic. That is the most grave

22 crime that he is alleged to have a direct input in.

23 And, Your Honour, what I said this morning is there is, in my

24 submission, some confusion in the Trial Chamber's reasoning, there is --

25 I don't have the references at hand, they were referred to this morning.

Page 735

1 At one point the Chamber talks of significant powers that Mr. Pusic had

2 to order forced labour assignments. In other parts of the judgement

3 there is reference to substantial powers. So there is something of a

4 muddle there, and I was wondering if Prosecution this morning would be

5 able to sort of -- or to assist us in determining what the position was,

6 is it the case of significant powers, is it the case of substantial

7 powers, and I'm not entirely clear that the picture -- well, I think it

8 remains just as opaque as it was before.

9 JUDGE AGIUS: Yes, Judge Pocar.

10 JUDGE POCAR: Excuse me. You mentioned this morning even before,

11 significant substantial powers in the difference. Can you give us a

12 couple of examples where the substantial is mentioned in the text in the

13 judgement?

14 MR. SAHOTA: Would Your Honours just bear with me for a second.

15 [Defence counsel confer]

16 MR. SAHOTA: Well, Your Honour, I think what I'm alluding to is a

17 general conclusion, and I will put my finger on it at some point, that

18 Mr. Pusic, in opinion of the Chamber, had substantial powers over the

19 network of detention facilities, which I would assume is a finding that

20 incorporates his powers over forced labour. And the finding at

21 paragraph 104 -- sorry, 1203, at volume 4, that he also played a

22 significant role in the use of Heliodrom detainees, sending them on

23 forced labour assignments, that's paragraph 1203. And I think it is

24 implicit from what is said with references to orders and the general

25 context and tenor of the Chamber's findings in the relation to his powers

Page 736

1 over detention centres in general, that some confusion arises.

2 JUDGE POCAR: Mm-hm.

3 MR. SAHOTA: I think the problem is that the Trial Chamber never

4 really nails its colours to the mast as to what Mr. Pusic's powers are

5 and what the source of those powers are. So in my mind, and perhaps you

6 share this confusion, it is not entirely clear whether they're saying

7 that he played a significant role or he had substantial powers. Although

8 they use the word "significant" in paragraph 1203, when one looks at the

9 general tenor and context of the findings on detention centres, it seems

10 as if the Trial Chamber's conclusion is that he had substantial powers

11 when it came to the HVO network of detention centres.

12 And, Your Honour, I say that because one can contrast the

13 Chamber's findings on detention centres and separate those with the other

14 crimes on the indictment, if you look at prisoner releases, exchanges,

15 humanitarian evacuations, it is quite clear that in respect of those

16 areas, the Chamber has found that that Mr. Pusic had significant powers.

17 But under the umbrella heading of detention centres it uses and is more

18 prepared to use the word "substantial powers."

19 So I'm not entirely -- I hope that assists. I have been also

20 passed references to the following paragraphs, I don't have the ability

21 to look at themselves on my feet, but if I can cite these to you now,

22 they're all in volume 4. Obviously there is some opportunity for me

23 tomorrow to address these. Paragraphs -- but volume 4, paragraphs 1202,

24 1023, and 1379.

25 JUDGE POCAR: Okay, thank you.

Page 737

1 MR. SAHOTA: But, Your Honours, it's on the basis of these rather

2 muddled and confusing at times findings that ...

3 May I have just a minute, Your Honours, just to resume as to

4 where I left off.

5 Well, Your Honours, it's on the basis of what we say this rather

6 muddled analysis that nonetheless the Chamber comes to the conclusion

7 that it does, that Mr. Pusic made a significant contribution to the JCE;

8 and it finds that he made a significant contribution in respect of forced

9 labour. The allegations relevant to forced labour not on the basis of --

10 only on the basis of what he did, i.e., these orders that we dispute but

11 also on the basis of his omissions to act, i.e., his acceptance in the

12 general context. And what concerns us is that the evidence is so

13 unclear, we would say, that it really prohibits any finding beyond

14 reasonable doubt in respect of this particular area. And we have already

15 highlighted our concerns in respect of Mr. Pusic's position within the

16 HVO hierarchy.

17 Can I just directly address some of the documents that were

18 produced this morning by the Prosecution as further evidence that he

19 could give orders. There were two of the documents that were adduced

20 this morning. The first is P3583, and this was referred to as a general

21 order from Mr. Pusic. Your Honours, we would ask you to examine this

22 document, apply what we called our handle-with-care warning. This is

23 again a document not signed by Mr. Pusic. There is endorsed on it in

24 writing by a member of the Heliodrom staff the words as "per the general

25 order by Mr. Pusic," and it's a document that refers to a request, a

Page 738

1 request made on the 20th of July, 1993, for 15 prisoners to be taken out

2 to perform work. And that's a request made by Mile Pulik [phoen] who is

3 the HVO Mostar battalion commander. So what was said this morning is

4 that we, the Defence, were incorrect in saying that the only evidence of

5 any orders or approvals emanated from Mr. Josip Praljak. What we should

6 have said, perhaps just to clarify, is that the only witness who gave

7 evidence of these orders was Mr. Josip Praljak. However, the documents

8 are indeed endorsed by other individuals which include other staff at the

9 Heliodrom. But I think the basic thrust of our submission, which is that

10 these are not orders. They're notes of conversations where the

11 endorsements are written by either Mr. Praljak in the main - Josip

12 Praljak, that is - or by other staff at the Heliodrom and they should not

13 be construed as evidence of any powers that Mr. Pusic has.

14 And we would make the same submission again in regards to I think

15 a think a reference that you were shown to a document. I don't have it

16 at hand, but there was a reference to 700 detainees in total, a schedule.

17 And that was taken from the Heliodrom log-book. In that log-book it

18 would appear that endorsements were made as approved by Mr. Pusic and in

19 the hand of whoever was making entries into the log-book at the time, and

20 that may or may not have been Mr. Josip Praljak. So if we could clarify

21 that, but our position remains as -- you're well aware that those

22 documents do not provide the foundation for a finding beyond reasonable

23 doubt that Mr. Pusic had the power to issue orders for detainees to be

24 taken out on forced labour assignments.

25 Your Honours, it's interesting and we've said again this morning

Page 739

1 that those orders, we say, have to be read against the general context

2 which is that as conceded by the Prosecution this morning, that the

3 Chamber cannot precisely specify the source of Mr. Pusic's powers when it

4 comes to this issue of forced labour. We would apply that perhaps more

5 generally. It can't precisely satisfy the source of his powers in

6 respect of any activities that he is said to have engaged in.

7 What was also said this morning is that it wasn't important and

8 what seemed to be implied is that it didn't really matter whether he had

9 de jure powers or not; we should consider the evidence of his de facto

10 powers in this area. And it was also said by the Prosecution this

11 morning that it didn't really matter whether we could make a firm finding

12 as to whether he had any subordinates because he wasn't -- or this isn't

13 a case where we're considering his 7(3) liability. We're looking at his

14 liability as a member of the JCE, and all that needs to be proved there

15 is that he made a significant contribution. That contribution can be

16 made on the basis of not just his acts but also his omissions to act if

17 they constitute acceptance. What remains troubling for us is that -

18 again, as I've said earlier today - the evidence of or the evidence that

19 these conclusions as to his influence and powers are drawn from are --

20 well, the evidence is so unclear, it's so conflicting, it's so

21 contradictory. How can it support any findings beyond reasonable doubt?

22 That is the question that we advance.

23 Your Honours, I would refer you to paragraph 25 of our appeal

24 brief. In that paragraph, we talk about the Pusic paradox and what we

25 say is that it's because of this -- these multiple failures on the part

Page 740

1 of the Trial Chamber. Their failure to specify who his subordinates are,

2 their failure to specify - as the Prosecution conceded this morning -

3 what the precise source of his power is. It's because of those failures

4 there remains a conundrum. There remain an uncertainty as to the exact

5 ambit of Mr. Pusic's powers and influence. And there must remain some

6 concern as to whether the Chamber properly applied the burden of proof

7 when making their findings. And that, Your Honours, really is in summary

8 the thrust of our submissions when it comes to this particular issue of

9 forced labour. So we say that this paradox, the Pusic paradox we call

10 it, we also say that applies more generally to all the findings in the

11 Trial Chamber's judgement in respect of all the other areas of activity

12 that he was involved in.

13 Your Honours, in response to what was said this morning in

14 regards to detention centres and the conditions of detention, there was

15 no reference in the narrative you heard in the first part of the

16 Prosecution's submissions to Mr. Pusic having any role in the setting up

17 of the network of detention centres. And you know from the Trial

18 Chamber's judgement that he is not said to have joined the JCE until

19 April 1993.

20 Your Honour, in respect of his role before the 10th of December,

21 1993, as regards detention centres, we -- we're not going to add anything

22 to what we've already addressed you on this morning and what's in our

23 appeal brief. I would like to address you on what was said about

24 Mr. Pusic's role in detention centres, in releases, in exchanges after

25 the 10th of December. In particular what was said this morning about the

Page 741

1 role of Marjan Biskic role. And, Your Honours, I think the Prosecution

2 referred to the fact that he was posted -- parachuted in I said this

3 morning from Croatia in November 1993, remained in situ working with the

4 HVO HZ HB until 1994. And, Your Honours, central to our case is his

5 assessment that Mr. Pusic could not give orders to him or anyone else.

6 And we say that analysis which directly applies to this question of

7 detention centres - that was the area that he was intimately involved

8 with - directly contradicts the account that you heard this morning from

9 the Prosecution of Mr. Pusic's powers increasing. His powers increased

10 after the 10th of December, 1993, a phrase that was repeated many times

11 and is taken verbatim from the Trial Chamber's judgement. His powers

12 were such that he was somebody who played a key role in organising the

13 exchanges and releases of detainees after that date. Well, how does that

14 square with Mr. Biskic's assessment? It doesn't. And, Your Honours, how

15 does it square with the failure of the Trial Chamber and the Prosecution

16 to identify Mr. Pusic's subordinates and to identify his source of power?

17 We say that same paradox applies in relation to detention centres.

18 Turning now to releases. Our case is as set out in the appeal

19 brief. We say Mr. Pusic had no unilateral power to order the release of

20 prisoners, their exchange, or their transfer. In reference to prisoner

21 releases specifically, you heard this morning reference to Mr. Pusic

22 describing the procedure that had to be followed before a detainee could

23 be released. Reference would have to be made to other departments within

24 the HVO, to the security department known as the SIS, also to the

25 criminal investigation department known as the CID. So, Your Honours,

Page 742

1 what I would say the narrative and account that you were presented this

2 morning really oversimplifies the position when it comes to releases and

3 exchanges. Whatever happened in respect to those that were detained in

4 the HVO network of detention centres, if they remained in detention, if

5 they were sent to third countries, if they were released to ABiH

6 territory, if they were forced to stay in their homes or to stay in

7 Mostar when there was a conflict going on, whatever happened we say the

8 evidence does not show that Mr. Pusic had the power to influence or

9 dictate their fate. When it comes to the one-for-one or all-for-all

10 exchange policies, again we say that Mr. Pusic did not have the power to

11 determine these issues so we say the evidence does not show that

12 Mr. Pusic had the power to determine these issues. And so, Your Honour,

13 we say that's not a black-and-white issue as you may have had the

14 impression from what you've heard this morning.

15 There was also, Your Honours, reference to the decision in Kvocka

16 this morning alluded by my learned friend for the Prosecution. What I

17 would say here is that in contrast in distinguishing that particular

18 case, the Prosecution and the Trial Chamber didn't find that Mr. Pusic

19 was just a clerk or administrator; that's not what the import of the

20 Trial Chamber's findings are. It's also not said by the Trial Chamber or

21 by the Prosecution that Mr. Pusic was just a link between the leadership

22 and what happened on the ground. And, Your Honour, it's -- we would

23 suggest that the evidence would not even support a conviction for

24 Mr. Pusic if it were the case that he was just shown to be a clerk or

25 administrative officer. We would still maintain the position that that

Page 743

1 finding would not support the conclusion that he made a significant

2 contribution to the JCE.

3 So, Your Honour, I'm just going to end quickly. I think we would

4 ask the Chamber to look at the evidence regarding Mr. Pusic's conduct in

5 totality, not to view elements of it in isolation, not to bifurcate in

6 the way the Trial Chamber has evidence about detention centres, separate

7 that from evidence concerning the activities of Mr. Pusic in the areas of

8 prisoner exchange, in the areas of humanitarian evacuation releases and

9 transfers. We'll ask you to take a global approach in this case. And in

10 response directly to what was said this morning, we would consider that

11 the Prosecution are really at times asking and expecting the impossible

12 of Mr. Pusic on the ground. Judging him by today's standards, it was

13 said that -- or it was directly raised the question of why he -- why did

14 he not protest? Why did he not report some of the atrocities that he

15 must have known about? Well, Your Honour, this is a criminal trial.

16 It's the Prosecution's burden to prove beyond reasonable doubt; it's the

17 Trial Chamber's obligation to find that evidences that has been brought

18 to show beyond reasonable doubt that Mr. Pusic is guilty. And, Your

19 Honours, our concerns about this judgement really rest upon the fact that

20 what remains unclear, what remains opaque is the question of exactly what

21 subordinates Mr. Pusic had, what the extent of his power was, what his

22 ability was to influence events. And that, Your Honour, are questions

23 that remain -- the answers to those questions remain unclear, despite

24 what you've heard this morning.

25 Thank you.

Page 744

1 JUDGE AGIUS: Thank you, Mr. Sahota. That brings us to the end

2 of today's session. Tomorrow we have a long day, as you know. The

3 submissions will be followed by any statement that each one of the

4 appellants may wish to make.

5 I would suggest that -- to counsel that if any one of the

6 appellants doesn't wish or does not intend to make a statement to let us

7 know so that we can make the necessary arrangements.

8 Thank you.

9 --- Whereupon the hearing adjourned at 1.09 p.m.,

10 to be reconvened on Tuesday, the 28th day of March,

11 2017, at 9.00 a.m.