1 Tuesday, 28 March 2017
2 [Open session]
3 [Appeals Hearing]
4 [The appellants entered court]
5 [The Appellant Pusic not present]
6 --- Upon commencing at 9.00 a.m.
7 JUDGE AGIUS: Yes, Madam Registrar, please could you call the
9 THE REGISTRAR: Good morning, Your Honours. This is case number
10 IT-04-74-A, the Prosecutor versus Prlic et al.
11 JUDGE AGIUS: Thank you.
12 So today we have a long day ahead, so I count on the co-operation
13 of everyone and I'll start with appearances first.
14 For the Prosecution.
15 MS. BAIG: Good morning, Your Honours. Laurel Baig for the
16 Prosecution. I'm joined by my colleague, Janet Stewart; and senior
17 counsel, Barbara Goy and Douglas Stringer.
18 JUDGE AGIUS: Thank you very much. And good morning to you.
19 Appearances for Mr. Prlic.
20 MR. KARNAVAS: Good morning, Mr. President. Good morning, Your
21 Honours. And good morning to everyone in and around the courtroom. I'm
22 joined by Ms. Suzana Tomanovic. I'm Michael Karnavas for
23 Dr. Jadranko Prlic.
24 JUDGE AGIUS: I thank you, Mr. Karnavas, and good morning to you
1 Appearances for Mr. Stojic.
2 MS. NOZICA: [Interpretation] Good morning, Your Honours. I'm
3 Senka Nozica representing Mr. Bruno Stojic with Aidan Ellis and
4 Molly Martin. Thank you.
5 JUDGE AGIUS: Thank you.
6 Appearances for Mr. Praljak.
7 MS. PINTER: [Interpretation] Good morning, Your Honours. Good
8 morning to everyone in and around the courtroom. General Praljak is
9 represented by Natacha Fauveau-Ivanovic and Nika Pinter.
10 JUDGE AGIUS: Thank you and good morning to you both.
11 Appearances for Mr. Petkovic.
12 MS. ALABURIC: [Interpretation] Good morning, Your Honours.
13 Greetings to everyone in the courtroom. General Petkovic is represented
14 by Vesna Alaburic, Mr. Davor Lazic, and Slavko Mateskovic.
15 JUDGE AGIUS: Good morning, counsel, to you and your colleagues.
16 MS. TOMASEGOVIC-TOMIC: [Interpretation] Good morning, Your
17 Honours. Mr. Coric is represented by lead counsel,
18 Dijana Tomasegovic-Tomic; co-counsel, Drazen Plavec; and our consultant,
19 Dan Ivetic. Thank you.
20 JUDGE AGIUS: Thank you. Good morning to all of you.
21 Counsel for Mr. Pusic.
22 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours.
23 Mr. Pusic is represented by Mr. Sahota and Mr. Ibrisimovic.
24 JUDGE AGIUS: Thank you.
25 Can I just have a confirmation from the appellants that they can
1 understand the proceedings in their own language? All right. So that's
3 Prosecution, you have two hours.
4 MS. BAIG: Your Honours, I will deal with the first three grounds
5 of appeal concerning criminal responsibility. In each of these grounds,
6 the Prosecution focuses primarily on errors of omission, where the Trial
7 Chamber leaves something incompletely adjudicated.
8 I will then hand over to my colleague Ms. Goy, who will address
9 ground 4 on sentencing.
10 Starting with ground 1, which raises five interrelated errors in
11 the Trial Chamber's JCE analysis.
12 I'd like to jump first to the heart of ground 1, the failure to
13 adjudicate or give reasons, which is subground 1(c). The problem here is
14 a very simple one. In relation to many of the JCE incidents, the Trial
15 Chamber did not adjudicate individual criminal responsibility for these
16 crimes in any meaningful way. The Trial Chamber assesses the evidence
17 and finds that the crimes charged in the indictment were factually proven
18 beyond a reasonable doubt, and that's generally found in volume 2 or the
19 beginnings of volume 3.
20 And then the Chamber finds that the alleged incidents meet all of
21 the legal elements of the crimes charged in volume 3, and the Trial
22 Chamber goes on to find that the crimes were the "natural and foreseeable
23 consequence of the JCE 1 being carried out."
24 Volume 4, paragraph 72.
25 The Chamber diligently made all these findings. However, when it
1 comes to who should be held criminally responsible, the Trial Chamber
2 fails to systematically address whether each of the defendants could
3 personally foresee the risk that each of these proven criminal incidents
4 might occur. And to the extent that this failure to adjudicate was an
5 implicit acquittal, in the sense that no conviction was entered, the
6 Prosecution has also appealed this as a failure to give reasons.
7 I should point out at the outset that for Pusic these crimes are
8 technically adjudicated, but they're all adjudicated in one single
9 sentence. Volume 4, paragraph 1216.
10 The Chamber gives a sweeping omnibus dismissal of all but two of
11 the JCE 3 incidents. Without assessing the evidence, the Chamber just
12 says that it does not have any evidence of his JCE 3 guilt. This bare
13 adjudication for Pusic is appealed only as a failure to give a reasoned
14 opinion. So, Your Honours, let me take you to one example to illustrate
15 the nature of this problem. In paragraph 161 of the indictment, the
16 Prosecution charges all six of the accused with the murder of
17 Sanida Kaplan in Stolac on 13 July 1993. Her name is specified in the
18 indictment's annex.
19 Sanida was killed after HVO armed forces entered her tiny
20 village, which consisted of only 13 Muslim and two Croat houses. She was
21 just shy of her 18th birthday. The HVO forces came into the village and
22 they proceeded to violently expel the Muslim families from their homes.
23 They arrested the men who had not been rounded up in previous raids,
24 firing weapons and shouting death threats.
25 In the course of these expulsions, an HVO soldier named
1 Dragan Bonojza arrived at the front door of the Kaplan home. As Sanida
2 came to her front door, he opened fire at close range, killing her in a
3 burst of gun-fire. Her mother Fata watched helplessly as her daughter
4 was shot in the head. She testified before this Tribunal that the killer
5 then forced her to leave her daughter's body. Along with her neighbours
6 and the rest of her family, Fata was then taken away by the HVO and
7 detained in a school in a nearby village. The Chamber's findings on
8 these facts can be found at volume 2, paragraphs 1934 to 1938.
9 The Chamber went on to find that Sanida Kaplan's killing was both
10 a murder as a crime against humanity charged under Count 2 and wilful
11 killing of a civilian charged as Count 3. And that's volume 3,
12 paragraphs 684 and 735.
13 The Chamber found that in order to evict Muslims from their homes
14 in furtherance of the common criminal purpose, the HVO forces engaged in
15 acts of extreme violence, threatening and mistreating Muslims, making
16 such killings and other crimes a natural and foreseeable consequence of
17 the joint criminal enterprise. That's volume 4, paragraph 72.
18 At volume 4, paragraphs 70, the Trial Chamber even lists this
19 exact killing as an example of the foreseeable JCE 3 crimes. Despite
20 having made all of these specific findings about this killing: that it
21 happened as charged, who did it, that it was an international crime, and
22 even what mode of liability should apply, the Chamber fails to determine
23 if three of the six accused were criminally responsible. It only
24 addresses the criminal responsibility of Petkovic and Coric. And for
25 Pusic, this incident is one of the 33 dismissed without any reasons.
1 And this is not the only murder that was overlooked. In fact,
2 the Trial Chamber does not address whether Stojic or Praljak could
3 foresee any of the 53 murders under JCE 3. Fifty-three people were found
4 to have been murdered in the execution of the joint criminal enterprise,
5 and the Chamber didn't even consider whether Stojic or Praljak were
6 responsible for any of them.
7 And the Chamber fails to address the criminal responsibility of
8 any of the defendants for any of the identified crimes in Prozor
9 municipality under JCE 3. None of the Prozor murders, none of the rapes
10 or sexual assaults, not the destruction of the Skrobucani mosque, and not
11 the thefts. And the Chamber missed other entire municipalities of crimes
12 in relation to other defendants.
13 And when Your Honours exam this issue more closely, you will see
14 that the Chamber's treatment is inexplicably inconsistent across the six
16 So to give you a sense of the scale of this problem -- I'm hoping
17 it will come up on the big screen. To give you a sense of the scale of
18 the problem, so based on indictment and the trial judgement that we've
19 summarised in the tables in our appeals brief, there were approximately
20 36 JCE 3 incidents. And I would note that each incident might comprise
21 more than one victim or occur over a period of time. So you multiply
22 this by six accused. And if you adjust a bit for those who joined the
23 JCE later or left earlier, there's a total of approximately of 211
24 incidents for which we would expect the Trial Chamber to address criminal
25 responsibility. And the circle represents these 200 expected criminal
1 responsibility adjudications.
2 Of the 211, around 150 of them are missing. So this is the
3 orange piece of the pie. Either the Chamber did not address criminal
4 responsibility at all or, for Pusic, dismissed the 33 incidents in a
5 single unreferenced sentence. So for more than 70 per cent of the proven
6 JCE 3 incidents, we do not have a finding on individual criminal
7 responsibility or at least not reasoned ones.
8 The scale of this omission is unprecedented and it cannot stand.
9 The Trial Chamber appears to have forgotten to determine which of the
10 defendants bears criminal responsibility for these serious crimes against
11 humanity and war crimes. And this is an unacceptable outcome for
12 everyone, for the victims; for the witnesses, such as Fata Kaplan, the
13 bereaved mother who travelled to The Hague to tell the Chamber -- to tell
14 this Court about her daughter's murder and her family's ordeal. And it's
15 an unacceptable outcome for the international community and for the legacy
16 of this Court. It's the primary responsibility of the Trial Chamber to
17 fully adjudicate the indictment before it, and in this case justice has
18 been left incomplete.
19 Your Honours, I will turn now to the grounds of appeal that
20 concern the JCE 3 incidents that were adjudicated by the Trial Chamber.
21 Starting with ground 1(a), this is the mens rea error. In short,
22 Your Honours, the Trial Chamber erred in applying the wrong mental
23 element for JCE 3. The correct standard is whether the foreseeable
24 crimes were a possible consequence of the joint criminal enterprise.
25 According to the well-established case law, this test is not satisfied by
1 implausibly remote scenarios. The law requires that the possibility that
2 a crime might be committed is sufficiently substantial to be foreseeable
3 to the accused. And I'd refer Your Honours to Sainovic appeals
4 judgement, paragraph 1557; and the Karadzic JCE 3 appeals decision cited
5 in our brief.
6 But in this case, in many instances, the Trial Chamber looked for
7 a probable rather than a possible consequence that the crimes would be
8 committed instead of could or might and that the crimes were a probable
9 outcome of the furtherance of the common purpose instead of a possible
10 one. And this sets the level of foreseeability too high. Your Honours,
11 because the original language of the trial judgement is French, I'm
12 putting both the original and the translation of the paragraphs that I'll
13 be citing up on the screen.
14 And you can see that in volume 1, paragraph 216, the Chamber sets
15 the legal standard for JCE 3 too high. The Chamber says that the JCE 3
16 requires that the accused deliberately assumed the risk that the crime
17 would be committed, because he knew that a crime of this sort was the
18 probable outcome of the furtherance of the common criminal purpose.
19 The Trial Chamber applied this heightened standard in many places
20 throughout its JCE 3 analysis. And the Trial Chamber's analysis of
21 Stojic's criminal responsibility is a good example of this error in
22 action, because the Trial Chamber uses the heightened standard
23 consistently in its analysis.
24 So starting at volume 4, paragraph 433, the Trial Chamber sets
25 out to assess whether Stojic could reasonably have foreseen that the
1 JCE 3 crimes would be committed and took that risk. The Trial Chamber
2 then consistently applies the wrong standard to all nine of its findings.
3 Applying the wrong standard, it convicts Stojic of five JCE 3 crimes. At
4 paragraph 437 it reasoned that he could foresee -- could have foreseen
5 that HVO members would also commit sexual abuse during the Mostar
6 evictions. And at paragraphs 439, 445, 446, and 447, that he could
7 foresee HVO would commit acts of theft.
8 And then applying the wrong standard again, the Trial Chamber
9 acquits him of four crimes, finding at paragraphs 441, 443, 448, and 449
10 of volume 4, that he could not have foreseen that thefts or religious
11 destruction would occur during certain operations.
12 The Trial Chamber is not consistent. In some places, most
13 notably in its analysis of Prlic's responsibility, the Trial Chamber
14 refers to the correct level of foreseeability, a possibility.
15 But in relation to the majority of the adjudicated JCE 3 crimes,
16 the Trial Chamber applies the incorrect probability standard. The
17 heightened legal standard results in erroneous acquittals in relation to
18 21 incidents. To the extent that Pusic's omnibus acquittal was an
19 adjudication, it also seems to have been done at this heightened
20 standard, raising the total number of errors to 54. These are the
21 incidents that the Prosecution has appealed.
22 For ten additional incidents, the foreseeability evidence was so
23 strong that the Trial Chamber convicted at the heightened standard. And
24 let me pause here because this is the subject matter of question 10 from
25 the Bench. Your Honours, even though there is a legal error in the
1 existing -- in some of the existing JCE 3 convictions, it is not one that
2 invalidates the judgement. The evidence that satisfies the higher
3 standard probability would necessarily also satisfy the correct standard.
4 Neither the Prosecution nor the Defence have appealed these legal errors
5 because they have no impact. Applying the correct test, the outcome is
6 the same: Conviction.
7 Various respondents have suggested in their briefs that the Trial
8 Chamber should be presumed to have applied the correct test despite its
9 choice of language. But, Your Honours, this is not a case where the
10 Chamber deliberately sets out to analyse the facts against the correct
11 legal standard and then uses a couple of stray words. Here, the Chamber
12 sets out the law at the wrong standard and then actively refers to this
13 wrong standard in approximately 75 per cent of the JCE 3 crimes it
14 adjudicates. For only 14 of the 60 adjudicated JCE 3 incidents does it
15 appear that the Chamber applied the correct standard, so there's no basis
16 to presume that the correct test was applied.
17 Your Honours, we ask that you apply the correct standard to the
18 Chamber's findings in the evidence and convict the respondents as set out
19 in our brief.
20 Turning now to ground 1(b) concerning the compartmentalisation of
21 the evidence.
22 Your Honours, in this ground, in this subground, the Prosecution
23 takes issue with the Chamber's restrictive assessment of the evidence
24 related to foreseeability. In assessing whether the JCE 3 crimes were
25 foreseeable, the Trial Chamber was, of course, required to look at the
1 totality of the evidence, including the surrounding circumstances in
2 which the crimes were committed. And the totality of the accused's
3 relevant intent and knowledge. Instead, it focussed very narrowly on the
4 particular location under consideration, assessing whether a particular
5 crime was foreseeable based exclusively on events in and information
6 about that particular municipality, village, or detention centre.
7 I will illustrate this compartmentalisation error with a simple
9 When considering Prlic's JCE 3 responsibility for the
10 5 December 1993 shooting death of a detainees in the Vojno detention
11 centre, the Trial Chamber found that Prlic was only informed of the
12 killings in that location by an ICRC letter on 20 January 1994, just over
13 a month later. It reasoned that since the crime occurred before he
14 received the letter, it couldn't find that he could reasonably have
15 foreseen the murder. That's at volume 4, paragraph 287.
16 But the Chamber erred in focussing exclusively on this one ICRC
17 letter as the exclusive evidence of the foreseeability of this killing.
18 Based on this piece of evidence, assessed in isolation, the Trial Chamber
19 acquitted; and that was wrong. In order to properly assess whether Prlic
20 could foresee the risk that a murder might occur in Vojno detention
21 facility in December 1993 many months into the execution of the joint
22 criminal enterprise, the Trial Chamber was required to look beyond actual
23 notice of murders in that particular location. And if it had done so, it
24 is clear from the Chamber's other findings that by December 1993 Prlic
25 could foresee the risk that murders of Muslims might occur in the HVO
1 network of detention facilities, including at Vojno. So, for example, it
2 would have been relevant to the Chamber's assessment that the JCE -- that
3 the Trial Chamber concluded that Prlic could foresee murders in other
4 detention facilities in the same network, for example, in Sovici and
5 Doljani, as early as April 1993. That's volume 4, paragraph 283. And
6 that Prlic knew of the life-threatening conditions in two other network
7 detention facilities, Dretelj and Gabela by 19th of July, 1993. Volume 4
8 paragraph 286. And that Prlic could foresee other murders during
9 evictions from at least June 1993. Volume 4, paragraph 284. And let's
10 not forget that the Chamber's JCE 1 finding that Prlic shared the intent
11 to remove the Muslim population from Herceg-Bosna through commission of
12 crimes, including persecution and murder. Volume 4, paragraph 276 and
13 287. That he shared the intent to detain Muslims in cruel and inhuman
14 conditions and to mistreat them and to use them for forced labour
15 resulting in their death on the front line. Volume 4, paragraph 23 --
16 sorry, 273, 274, and 287.
17 Had the Trial Chamber not made a legal error in looking only at
18 that Vojno evidence in isolation, the only conclusion available on the
19 totality of the evidence was that Prlic was aware of the possibility that
20 a Vojno detainee might be killed in December 1993, and he should be
21 convicted under JCE 3 for this crime.
22 As set out in our brief, this error - artificially
23 compartmentalising the evidence in this way - has resulted in and
24 contributed to erroneous acquittals. And we ask Your Honours to correct
25 these errors as set out in our brief.
1 In relation to Coric, the Trial Chamber took this
2 compartmentalisation to the extreme. This is subground 1(d). The Trial
3 Chamber not only limited its evidentiary analysis to a specific location,
4 it also required that Coric contributed to a particular JCE 1 crime in
5 those locations as a precondition for JCE 3 responsibility. The Trial
6 Chamber was not even satisfied that Coric participated in related JCE 1
7 crimes in those same localities. So the Chamber found that Coric
8 participated in the arrest and detention of the men in Stolac and
9 Capljina, but because he did not personally have a hand in the concurrent
10 evictions of the women, children, and elderly, the Chamber found that he
11 was not responsible for those JCE 3 crimes, which included 16 murders
12 including Sanida Kaplan and the thefts. And that's volume 4,
13 paragraph 1015, referring back to paragraph 953.
14 In doing so, the Trial Chamber adds a new requirement that the
15 accused must have specifically contributed to a particular JCE 1 crime in
16 a particular location, and this is an error. There's no legal basis for
17 this additional requirement. Indeed, any such requirement would run
18 contrary to the very foundation of the legal notion of joint criminal
19 enterprise, which is based on participants contributing to different
20 activities in order to achieve their shared common criminal purpose.
21 Finally, Your Honours, in ground 1(e), the Prosecution also
22 raises errors of fact. No reasonable trier of fact could have acquitted
23 for these crimes. For the detailed factual arguments in relation to each
24 respondent, we rely on the submissions set out in our briefs. It
25 suffices for my oral submissions to point out that correcting these
1 errors would not require extensive appellant fact-finding. Applying the
2 correct legal and evidentiary standards, the respondents' convictions for
3 JCE 3 responsibility in most instances can be entered based on the
4 Chamber's own findings.
5 In particular, Your Honours, the Chamber has already made
6 findings on many of the contextual factors that the Appeals Chamber has
7 previously identified as making the commission of a specific type of
8 crime falling outside the common purpose foreseeable. And I'd refer
9 Your Honours to Sainovic appeals judgement paragraph 1089.
10 For example, the Trial Chamber found that each of the JCE members
11 intended a wide range of violent and persecutory crimes against Muslims -
12 these were the means by which the common purpose was to be achieved - and
13 not just for forcible displacement crimes, but also murders during
14 attacks and the wanton and extensive destruction of property not
15 justified by military necessity. They intended illegal detentions and
16 the inhuman and cruel treatment of vulnerable detainees and murders
17 during dangerous and illegal front line forced labour. And after (sic)
18 30 June 1993, the JCE members were found to have intended to spread
19 terror, to unlawfully attack Muslim civilians through sniping and
20 shelling, to destroy Muslim religious buildings.
21 And it's not only their intent to further the common criminal
22 purpose using incredibly violent means, they were each also aware of how
23 the JCE was being implemented on the ground. The JCE members knew that
24 eviction operations involved a climate of extreme violence. There are
25 many findings in the judgement on this. Each of them was aware of the
1 climate of ethnic animosity, ethnic separation was their very purpose.
2 Each of them participated in various aspects of the pattern of
3 criminality in execution of the joint criminal enterprise across
4 different municipalities and in various detention settings. And they and
5 their fellow JCE members were not taking any -- or at least not any
6 effective steps to curb this criminality, further fuelling the
7 possibility that it would occur again and again in the course of the
8 JCE's implementation across Herceg-Bosna. And each of them were aware of
9 factors identified in previous cases as making victims more vulnerable,
10 thereby indicating a heightened risk of JCE 3 crimes.
11 For example, they knew about separations based on gender, that
12 the male Muslim population was being rounded up and detained, separating
13 them from the women, children, and the elderly. Each of them knew that
14 detainees were being held in terrible conditions where they were
15 subjected to deprivations and violence. And they knew of the presence of
16 criminals in units dispatched to carry out operations in close contact
17 with Muslim civilians, such as Naletilic's notorious convicts battalion.
18 The Chamber's compartmentalised assessment of JCE 3 crimes fails
19 to address this overall context. But when you break down the
20 compartments and put the Chamber's factual findings back together, in
21 most instances this is already sufficient, sufficient to demonstrate
22 beyond a reasonable doubt that each of the respondents could foresee the
23 risk that murders, rapes, destruction of religious property, and thefts
24 might occur.
25 As an example, look at the Chamber's assessment of the
1 foreseeability of thefts, plunder and appropriation of property. The
2 Chamber found that all five of the defendants who were JCE members at
3 that time could foresee JCE 3 threats following the attacks on
4 Gornji Vakuf in January 1993.
5 So from the very beginning of the JCE's implementation, each of
6 them already knew that eviction operations were being conducted in a
7 manner that made threats a possible consequence of the execution of the
8 common criminal plan. And the Chamber even convicted four of them for
9 foreseeing the risk that thefts were a probable consequence of the JCE's
10 execution in Gornji Vakuf. In addition, each of the five are also
11 convicted of thefts in at least one other municipality after
12 Gornji Vakuf, and this pattern of thefts from Muslims, plunder and
13 appropriation of property, continued through the execution of the common
14 criminal plan.
15 The Chamber's own findings are sufficient to fill the gaps that
16 the Chamber left. Applying the correct legal and evidentiary standards,
17 the findings that they've already made are sufficient to convict each of
18 them for JCE 3 thefts. Since each of the respondents, each of the five
19 respondents, already knew in January 1993 that thefts might occur in the
20 execution of the joint criminal enterprise, then they could also foresee
21 this risk in April in relation to Jablanica and May in Mostar and July in
22 Stolac and Capljina and then in Prozor and Vares, especially since their
23 knowledge of the violent discriminatory operations only grew over time
24 and since they took no or at least no effective steps to stop the
25 violence and property crimes.
1 Your Honours, foreseeability does not depend on whether a
2 particular respondent knew or did not know that a military attack was
3 planned on a certain day in a certain place. Foreseeability does not
4 require that kind of accurate prediction of the future.
5 The Appeals Chamber already rejected that approach in the Krstic
6 case. In response to a Defence complaint that he was being held
7 responsible for crimes that he was unaware were actually occurring, the
8 Appeals Chamber explained that for JCE 3 liability:
9 "It is not necessary to establish that he was aware, in fact,
10 that those other acts would have occurred."
11 It was unnecessary for the Trial Chamber to determine whether the
13 "... was actually aware that those other criminal acts were being
14 committed; it was sufficient that their occurrence was foreseeable to him
15 and that those other crimes did in fact occur."
16 And that's Krstic appeals judgement, paragraph 150.
17 In a JCE of this nature and scale, it is legally sufficient for
18 the type of crime to be foreseeable. And I would refer Your Honours to
19 Sainovic appeals judgement, at paragraph 1089.
20 Based on the nature of the JCE and the means used to implement it
21 on the ground, the four types of JCE crimes were foreseeable to each of
22 the respondents, and they were foreseeable regardless of whether a
23 particular respondent knew about or was personally involved in the JCE 1
24 activities in that place on that day.
25 And, Your Honours, the case law makes clear that it's not
1 necessary for the purposes of JCE 3 responsibility that an accused be
2 aware of the past occurrences of a crime for that type of crime to be
3 foreseeable to him. Stanisic/Zupljanin paragraph 627. Actual notice of
4 past crimes is not required. But each of the respondents in this case
5 did in fact get such notice of past occurrences: Prlic as president,
6 Stojic head of Department of Defence, Praljak and Petkovic at the top of
7 the HVO's Main Staff, Coric as head of the military police
8 administration, and Pusic in charge of prisoner releases and exchanges.
9 From each of their positions and from their connections with each other
10 and the other JCE members, each of them received information that serious
11 crimes against people and property - going beyond even their intended
12 crimes - were occurring in the course of their ethnic cleansing campaign.
13 And this, Your Honours, is a good place to address question 4(c)
14 from your order in relation to the Prosecution's appeal. If the Appeals
15 Chamber were to reverse the Trial Chamber's conclusions concerning the
16 murders at Sljivo's house and Dusa, would this have any impact on JCE
17 liability? And the Prosecution's answer is: No, it would not.
18 You've heard answers to this question from the Prosecution as
19 respondent in relation to some of the Defence appeals last week; this
20 connects with those submissions. Whether or not the killings of the
21 seven civilians were found to qualify as murder and whether or not any of
22 the respondents were privy to the contents of Siljeg's 28/29
23 January report, the fact remains that a clear pattern of attacks across
24 Gornji Vakuf municipality on the 18th of January and over the following
25 days followed a preconceived plan and unfolded in an atmosphere of
1 extreme violence. And this climate of extreme violence continued
2 throughout the implementation of the JCE, showing that this was the way
3 that the common criminal purpose was intended to be implemented.
4 In Sainovic, the Appeals Chamber considers that to foresee murder
5 an accused must be aware not only of violence but of violence of such a
6 level of gravity as to make the commission of murder foreseeable. What's
7 different in this case, Your Honours, is that each of the JCE members was
8 already found to have intended not only forcible displacement and
9 persecution against Muslims, but also to murder Muslims as a JCE 1 crime.
10 The Trial Chamber distinguished attack and forced labour murders as JCE 1
11 from eviction and detention murders as JCE 3, but it certainly bears on
12 the foreseeability of the additional JCE 3 murders that murdering Muslims
13 was already an intended means of achieving the common criminal purpose.
14 So to sum up, by the time of the first JCE 3 murders, all of the
15 respondents were aware of the extreme violence that was being used to
16 achieve their common purpose, making murder a foreseeable JCE 3 crime,
17 regardless of the legal classification of the Dusa killings or who
18 received or was privy to the information contained in one of the reports
19 about them.
20 Your Honours, the Trial Chamber's JCE 3 analysis is riddled with
21 overlapping errors. The Chamber failed to properly adjudicate which of
22 the respondents were criminally responsible for more than 70 per cent of
23 the JCE 3 incidents; and for those incidents it did consider, it made
24 factual and legal errors. We ask you to correct these errors and to
25 convict the respondents as set out in our brief.
1 Your Honours, I have a correction to transcript 14, line 5. I
2 believe I misspoke. I said "after June 1993" the JCE members were found
3 to have intended to spread terror and the other expanded crimes, and that
4 should say "from June 1993." And that's volume 4, paragraph 59.
5 Turning to ground 2 of the Prosecution's appeal. Again, this is
6 the Chamber leaving the required analysis incomplete, entering an
7 acquittal before all the charges in the indictment are adjudicated.
8 The indictment charges each of the accused under Article 7(1) and
9 Article 7(3). And when the Chamber acquitted under 7(1), its task was
10 not yet finished; it still had to consider and adjudicate whether the
11 defendants bore criminal responsibility as superiors. It did so with
12 regard to the crimes in Prozor in 1992. Having found that there was no
13 common criminal purpose at that point in time, it considered whether any
14 of the defendants were nevertheless criminally responsible under
15 alternative modes charged in the indictment. But for other crimes, when
16 it found no criminal responsibility under JCE, it stopped prematurely.
17 It entered an acquittal before addressing all of the charges in the
19 We focussed on failure to punish because to be in this category
20 of incompletely adjudicated crimes, the Trial Chamber has already made
21 findings that there was no direct intent for JCE 1 and that the crimes
22 were not foreseeable to that defendant for JCE 3. The only remaining
23 mode of liability not excluded by that analysis would be Article 7(3),
24 failure to punish.
25 And we've set out in our brief the compelling facts and findings
1 that should result in convictions for these crimes. To illustrate this
2 error, let me take you to one example.
3 The Chamber acquitted Petkovic for JCE 3 responsibility for the
4 killing of four Muslim detainees at Dretelj prison in mid-July 1993; one
5 died from dehydration and the other three were shot. The Chamber
6 reasoned that Petkovic could not foresee these murders because he was
7 only informed of them by the ICRC on 20 January 1994.
8 THE INTERPRETER: Kindly slow down for the interpretation.
9 MS. BAIG: But before entering an acquittal, the Trial Chamber
10 was required to look at the superior responsibility charges for this same
11 incident. And this is not optional, it's not discretionary. Before
12 entering an acquittal, the Trial Chamber has to adjudicate all of the
13 modes charged in the indictment; and its own findings show that a
14 conviction was warranted.
15 The Trial Chamber found that Petkovic in the HVO Main Staff was
16 the superior, he was the superior of and he had effective control over
17 the perpetrators. Volume 4, paragraphs 663 and 679.
18 And as I've just mentioned, the Trial Chamber found that he
19 received -- that he was actually informed by the ICRC letter of these
20 specific murders, albeit after they occurred.
21 And the Chamber found that Petkovic accepted the mistreatment of
22 detainees at Dretelj, including killings, and specifically that he failed
23 to take any measures against the perpetrators. That's at paragraph 816.
24 On the Chamber's own findings, all of the elements for superior
25 responsibility failure to punish were established, yet no conviction for
1 superior responsibility was entered.
2 Instead, Petkovic has been acquitted of crimes even though the
3 Chamber found that the elements of the crimes and the mode were proven.
4 The Prosecution relies on the detailed arguments set out in our
5 appeals brief. These erroneous acquittals should be reversed. Again,
6 the Trial Chamber's primary responsibility is to fully adjudicate the
7 indictment before it; and again, they've left justice left incomplete.
8 And in ground 3, the Prosecution is again challenging a matter
9 that is incomplete. It concerns a technical oversight in the Chamber's
10 application of the cumulative convictions rule. When applying this rule,
11 the Chamber erroneously allows four sets of incidents to fall out of the
12 conviction. This error requires correction because the defendants were
13 found to have committed crimes for which no convictions are then entered.
14 Let me explain. The Chamber correctly found that the cumulative
15 convictions rule prevented the Chamber from entering convictions based on
16 the same facts for both the Article 2, grave breach of extensive
17 destruction of property, which is charged as Count 19; and the Article 3
18 crime of wanton destruction, charged as Count 20.
19 This is because only extensive destruction under Article 2
20 contains a distinct element, namely, that the property is generally
21 protected under the Geneva Conventions or is located in occupied
22 territory. All of the elements of the Article 3 wanton destruction are
23 fully reflected in the Article 2 grave breach. Consequently, when the
24 elements of both crimes are met based on the same facts, a conviction may
25 only be entered for the extensive destruction under Article 2. And you
1 can find that analysis at volume 4, paragraphs 1264 to 1266.
2 The Chamber's analysis on this point is correct, and so far there
3 is no dispute between the parties, no error in the trial judgement.
4 The error occurs when the Trial Chamber applies the rule. In
5 relation to four sets of incidents, the Chamber overlooks that it did not
6 find criminal conduct under both Article 2 and Article 3. So in relation
7 to these incidents, it overlooks that it doesn't really have a cumulative
8 conviction situation in the first place. This ground affects only the
9 destruction crimes in relation to Muslim homes in the four Gornji Vakuf
10 villages on 18 January 1993, Muslim property in Prozor, ten mosques in
11 East Mostar, and the destruction of the Old Bridge. Each of those four
12 incidents was found to constitute the crime of wanton destruction, a
13 violation of the laws and customs of war charged under Article 3 as
14 Count 20.
15 But for Count 19, the Chamber found that the elements were not
16 met for each of these groups of incidents because the destruction did not
17 occur on occupied territory and the property was not otherwise protected
18 under the Geneva Conventions.
19 Yet at the very end of judgement, the Chamber applies the
20 cumulative conviction rule to the counts, the whole counts, as if there
21 was perfect concurrence between the facts underlying the two crimes but
22 there was not.
23 So when the Chamber declined to enter a conviction for Count 20
24 based on the cumulative convictions rule, it drops these four incidents
25 out of the convictions all together. You can find that at the
1 disposition on pages 430 and 431 of volume 4. This was wrong. To
2 correct this error, convictions under Count 20 should be reinstated for
3 these four groups of incidents.
4 And this is where I come to Your Honours' remaining question,
5 question number 5, which relates to the Chamber's underlying legal
6 findings about whether the attacks on the villages in Gornji Vakuf
7 constituted wanton destruction or devastation not justified by military
8 necessity. This is the Article 3 violation of the laws and customs of
9 war charged as Count 20. This is the count for which the Trial Chamber
10 did not enter a conviction because of its error in the application of the
11 cumulative convictions rule.
12 In the first part of the question, you've asked the Prosecution
13 to discuss the basis for the Chamber's findings that the property
14 destruction caused during the attacks on the villages of Dusa, Hrasnica,
15 Zdrimci, and Uzricje was wanton and not justified by military necessity.
16 Your Honours, in reaching its reasonable conclusion that the
17 attacks were wanton, the Trial Chamber referred to the pattern across the
18 four villages, noting that on 18 January 1993 the HVO damaged and
19 destroyed many Muslim homes across the municipality. This was no
20 coincidence. The attacks on the four villages were found by the Chamber
21 to have unfolded in exactly the same way, beginning with the HVO first
22 attacking the villages by firing shells at Muslim homes, then the HVO
23 entered the villages, arrested the population, destroyed the remaining
24 homes, and removed the villagers. Volume 4, paragraphs 561, 704, and
1 Based on this total similarity in the way that the operations
2 unfolded and the crimes committed in each of the villages, the Chamber
3 concluded that they corresponded to a preconceived plan. The Chamber
4 found that the HVO attacked each of the four villages with mortar shells,
5 heavy machine-guns, and artillery. Volume 2, paragraph 357. It
6 characterised the shelling as indiscriminate. Volume 3, paragraph 711.
7 As you heard last week, the HVO also used weapons to directly
8 target Muslim civilian homes as happened in Dusa, where the HVO tank
9 fired on and deliberately damaged Sljivo's house. The Trial Chamber
10 reasonably concluded that the destruction of the homes lacked military
11 justification. This was reasonable. None of the destroyed houses were
12 military objects in and of themselves, and the Chamber took into
13 consideration that there were a few ABiH members present in the villages
14 at the times of the attacks. You can see the Chamber's analysis at
15 volume 3, paragraph 1569; and volume 4, paragraph 45. And even that in
16 one of the villages, Zdrimci, some armed Muslim men hid in houses from
17 time to time. Again, volume 3, paragraph 1569; and volume 2, paragraph
18 382. But the existence of these village defenders, particularly in light
19 of their small number and the fact that they were armed with hunting
20 rifles and other small-arms, does not offer a plausible military
21 justification for the selective destruction of Muslim property during
22 these attacks.
23 And the lack of military justification for the destructive
24 attacks on civilian homes on the 18th of January is confirmed by the
25 continuation of such destruction over the subsequent days, after the HVO
1 had taken control of the four villages. The HVO removed the civilian
2 population, it then systematically burned Muslim property that had not
3 already been destroyed during the shelling operation, and the Trial
4 Chamber found that this was done in order to prevent the Muslims from
5 returning. Croat property was left intact. Volume 2, paragraph 414,
6 432, 456, and many others. In light of the totality of this evidence,
7 the Chamber's finding that the destruction during the attack was wanton
8 and not justified by military necessity is a reasonable one and should be
10 In the second part of question 5, Your Honours, you've asked
11 whether there would be any effect if this finding were overturned on the
12 finding that the property destruction caused during the attacks on
13 several localities in the municipalities was extensive.
14 With regard to the trial judgement, the answer is no. There
15 would be no effect on the Trial Judgement because, as I have just
16 explained, as a result of the Chamber's cumulative conviction error,
17 there is presently no conviction for the crime of extensive destruction
18 on the 18th of January in the four villages. As found by the Chamber,
19 the destruction in the days following the attacks would still meet the
20 large-scale requirements for both Article 2 and Article 3 destruction
22 But with regard to the Prosecution's appeal, the answer would be
23 yes. If Your Honours found error in the Chamber's conclusion that the
24 destruction was not justified by military necessity, then the only
25 remaining destruction on 18th of January would be that in Gornji Vakuf
1 town. And, Your Honours, the Prosecution has not appealed a cumulative
2 conviction error in relation to Gornji Vakuf town.
3 Your Honours, again in ground 3 the Prosecution's appeal is
4 focussed on an incomplete adjudication. The Trial Chamber concluded that
5 each of the respondents were guilty but then failed to enter a
6 conviction. In this third way, justice has been left incomplete.
7 And with that, Your Honours, I'd conclude my submissions and hand
8 the podium over to my colleague, Ms. Goy, to discuss sentencing.
9 MS. GOY: Good morning, Your Honours.
10 By sentencing the respondents to between 10 and 25 years of
11 imprisonment, the Chamber abused its discretion. These sentences are
12 manifestly inadequate.
13 The respondents are convicted for having implemented a protracted
14 campaign of ethnic cleansing to create Croat domination in Herceg-Bosna.
15 The crimes occurred throughout a large part of BiH, covering eight
16 municipalities. The crimes were massive in scale. Tens of thousands of
17 Muslims were evicted from their homes, often expelled across the border
18 through an elaborate system, thousands were arrested and detained in
19 awful conditions, many were forced to perform dangerous labour on the
20 front line. Muslims were killed during attacks or when forced to work on
21 the front line. They were raped, they were sexually assaulted. Muslim
22 houses and mosques were destroyed, Muslim property plundered. Over
23 50.000 people were trapped in East Mostar by late August 1993. They were
24 subjected to relentless shelling and sniping.
25 The respondents played key roles in the joint criminal enterprise to
1 create Croat domination by criminal means. They were the JCE's
2 architects and their leading implementers. In light of the gravity of
3 the crimes themselves and the key roles the respondents played in them,
4 their sentences of 10 to 25 years are so unreasonable that they
5 constitute an abuse of discretion.
6 In today's hearing, I would invite Your Honours to look at the
7 Chamber's sentencing analysis from two different perspectives. Both
8 perspectives show that the sentences imposed are too low and constitute
9 an abuse of discretion. First, I propose to look at the Chamber's own
10 conclusions on the gravity, the gravity of the crimes themselves and the
11 roles of the accused. We will see that the Chamber's conclusions are not
12 in line with the sentences it imposed; this shows that the Chamber failed
13 to give gravity adequate weight. Second, I propose to look at a number
14 of specific features of this case, features which confirm that the
15 sentences imposed are manifestly inadequate.
16 Starting with my first point. The sentences of 25 years for
17 Prlic, 20 years for Stojic, Praljak and Petkovic, 16 years for Coric and,
18 10 years for Pusic are manifestly unreasonable when one looks at the
19 Chamber's own conclusions in the sentencing part of the judgement. And
20 here we recognise that sentencing is a matter of discretion, but this
21 discretion has to be exercised in a way that gives adequate weight to the
22 gravity of the crimes themselves and the form and degree of participation
23 within the available sentencing range.
24 And the available sentencing range is up to life imprisonment.
25 The highest fixed-term sentences imposed at the ICTY and the ICTR are in
1 the 40s, with 40 years' imprisonment imposed against Milomir Stakic and
2 47 years' imprisonment imposed by the Appeals Chamber for two accused in
3 the Butare case.
4 So this is the sentencing framework in which the Chamber has to
5 exercise its discretion. With this framework in mind, I would invite
6 Your Honours now to look with me at three aspects of the Chamber's
7 gravity analysis: One, the Chamber's conclusion on the gravity of the
8 crimes themselves; two, the Chamber's conclusion on the form of
9 responsibility; and three, the Chamber's conclusion on the degree of
11 Starting with the Chamber's findings on the gravity of the
12 crimes. The Trial Chamber concluded that the crimes of which the
13 respondents were found guilty were extremely serious. It said:
14 "The scale and brutality of the crimes, on the one hand, and the
15 inherent nature of the offences, on the other, show that the crimes
16 committed by the accused are extremely serious."
17 Volume 4, paragraph 1302.
18 It is clear from the rest of the judgement that this conclusion
19 is an appropriate characterisation of the crimes committed by the
20 respondents. These crimes included the eviction of tens of thousands,
21 killings during attack and while performing dangerous forced labour on
22 the front line, the detention in terrible conditions, the daily shelling
23 and shooting in the small area of East Mostar where more than 50.000
24 people were trapped from late August 1993.
25 Next, I would invite Your Honours to look at the Chamber's
1 findings on the form of responsibility. The Chamber found all
2 respondents criminally liable as members of a joint criminal enterprise.
3 Joint criminal enterprise liability is considered one of the most serious
4 forms of responsibility. That's the Mrksic appeals judgement,
5 paragraph 407; and Krnojelac appeals judgement, paragraph 75.
6 Turning now to the Chamber's findings on the degree of
7 participation. The Chamber found all respondents played a key role, in
8 the French original "un rôle majeur", in the commission of the crimes.
9 Volume 4, paragraphs 1317, 1318 for Prlic; 1329, 1330 for Stojic; 1341,
10 1342 for Praljak; and 1354, 1355 for Petkovic; 1369, 1370 for Coric; and
11 1381 for Pusic.
12 Four of them, Prlic, Stojic, Praljak, and Petkovic, were even
13 found to be key members of the JCE. In the French original, "des membres
14 les plus importants." Volume 4, paragraphs 1315, 1328, 1340, and 1353.
15 To sum up, the Chamber found the crimes were extremely serious; it found
16 all respondents guilty under one of the most serious forms of
17 responsibility, joint criminal enterprise; and it found that Prlic,
18 Stojic, Petkovic, and Praljak were one of the most important members of
19 the JCE and that all of the respondents, including Coric and Pusic,
20 played a major role in the commission of the crimes.
21 On the basis of these conclusions, one would reasonably have
22 expected sentences in the high range of fixed-term sentences for Prlic,
23 Stojic, Petkovic, and Praljak, and at least in the upper part for Coric
24 and Pusic. This raises the question: Is there another explanation for
25 the far lower sentences imposed or can they only be explained by an abuse
1 of discretion?
2 Can the mitigating factors explain the reduction that must have
3 occurred had the Chamber given gravity and the form and degree of
4 participation adequate weight? The answer is no.
5 As mitigating factors, the Chamber found for all respondents
6 voluntary surrender and good behaviour in detention and on provisional
7 release. Voluntary surrender and good behaviour in detention may warrant
8 some mitigation, as the Kordic appeal judgement found paragraph 1053.
9 But they cannot explain the major reduction that must have
10 occurred had the Chamber given gravity and the form and degree of
11 participation adequate weight.
12 In particular, as the Appeals Chamber found in Krajisnik, good
13 conduct in detention could only have a limited impact on the sentences in
14 light of the gravities of the crimes. That's the Krajisnik appeals
15 judgement in paragraphs 816, 817.
16 And in any event, in addition to the mitigating factors, the
17 Chamber also had to take into account the aggravating factor of abuse of
18 authority in relation to all respondents.
19 For Prlic and Petkovic, the Chamber took additional mitigating
20 factors into account. For Prlic, the Trial Chamber also considered his
21 post-conflict conduct in mitigation; however, in light of the aggravating
22 factor, this cannot reduce a sentence in the high range of fixed-term
23 sentences to 25 years' imprisonment.
24 For Petkovic the Chamber found two other mitigating factors:
25 Absence of criminal records and preference for negotiations. But the
1 Chamber determined itself that both had limited weight, in light of the
2 gravity of the crimes and the scope of Petkovic's participation and his
3 efforts to conceal HVO responsibility. Volume 4, paragraphs 1359, 1361.
4 Thus, here as well the mitigating factors cannot explain the
5 reduction from what one could reasonably have expected to be a sentence
6 in the high range of fixed-term sentences to 20 years' imprisonment.
7 To conclude the first part of my submissions, the Chamber found
8 that the crimes were extremely serious, the respondents were responsible
9 under one of the most serious forms of responsibility, and they played
10 key roles in the commission of the crime. Prlic, Stojic, Petkovic, and
11 Praljak were even found to be most important members of the JCE.
12 In light of these findings, the Chamber's sentences imposed are
13 manifestly inadequate. These sentences cannot be explained by the
14 mitigating factors found. The sentences imposed can simply not be
15 squared with the Chamber's own conclusions. The Chamber 's own
16 conclusions are rather in line with the sentences requested by the
17 Prosecution, both at trial and now on appeal: 40 years for Prlic,
18 Stojic, Praljak, and Petkovic; 35 years for Coric; and 25 years for
19 Pusic. The only explanation for the far lower sentences imposed is that
20 the Chamber did not give adequate weight to the gravity of the crimes
21 themselves and the form and degree of participation. The only
22 explanation available is that the Chamber abused its discretion.
23 Let me now turn to the second part of my argument. The Chamber's
24 abuse of discretion becomes not only obvious when one compares its
25 conclusion on the gravity with the sentences imposed. That the sentences
1 are manifestly inadequate is also obvious when one looks at the features
2 of the case, features that makes the crimes particularly grave. I will
3 address four of these features: The scale of the crimes; the vicious
4 siege of East Mostar; the system of expulsion through a network of
5 detention facilities; and the use of unlawful, dangerous forced labour.
6 First of all, the crimes were of a large scale. Tens of
7 thousands of Muslims were displaced, thousands were arrested and detained
8 in terrible conditions, mistreated, or killed; over 50.000 were subjected
9 to unlawful attack and terror in East Mostar.
10 Second, the vicious siege of East Mostar is another feature of
11 this case which made the crimes particularly grave. To avoid any
12 misunderstanding, Your Honour, the Prosecution is not arguing that the
13 Trial Chamber overlooked the siege, but rather, that the Chamber failed
14 to analyse its inherent gravity and to give it sufficient weight. Two
15 aspects indicate that the Chamber failed to give the siege sufficient
16 weight: The cursory way the Chamber dealt with the siege in the
17 sentencing part of the judgement and a comparison with sentences imposed
18 in other cases involving a siege.
19 The Chamber failed to sufficiently analyse the inherent gravity
20 of the siege. For ten months the HVO besieged east Mostar. The HVO
21 subjected the besieged population to relentless shelling and sniping.
22 Over 50.000 people were trapped in overcrowded East Mostar by late
23 August 1993. The HVO's shelling and sniping during the siege killed or
24 injured hundreds and caused substantial damage to homes, mosques, the
25 Old Bridge, and the only hospital. The population of East Mostar,
1 including women, children, and elderly, lived under the constant shelling
2 and gun-fire, under the constant threat of being hit, wounded, or killed.
3 They were terrified. The HVO made the situation even worse by blocking
4 or hindering humanitarian aid.
5 The brutality of the siege is clearly shown by the BBC
6 documentary by Jeremy Bowen, who was present in East Mostar in August and
7 September 1993, during a time when all respondents were JCE members.
8 That is Exhibit P06365.
9 Bowen said that Mostar was the most devastated city, worse than
10 Sarajevo and Vukovar. That's at 34.56, through 35.05.
11 I would invite Your Honours now to watch three clips of the video
12 which show the conditions in besieged East Mostar. And for the record,
13 these are at 1.25 through 4.05; 11.20 to 12.27; and 16.36 to 17.20.
14 [Video-clip played]
15 "There are no safe places in East Mostar. You can be killed or
16 maimed at any time on any street corner. Until you see it happening,
17 it's hard to realise how quickly lives can be destroyed. Franjo
18 Pavlovic, who was born a Croat, made the mistake of going out to repair
19 some shell damage on what had started out as quiet morning. Because
20 Raima, his wife, is a Muslim, the Croats expelled them over the front
21 line into East Mostar in August. He had one chance, a fire engine, the
22 only one left on this side of Mostar, was nearby. Perhaps it could get
23 him to the hospital in time. Nothing in her life before the war had
24 prepared Mrs. Pavlovic for this. She's 53. After they married, she
25 worked as an accountant in a graphic design business. The last traces of
1 that life disappeared when her husband was hit. The streets were empty
2 and not just because of the shelling. There is a six-hour-long day-time
3 curfew; the idea is to stop people getting hurt. The hospital was only a
4 few minutes away. Nothing is more than a few minutes away in
5 East Mostar.
6 "The doctor hardly had to look at him. Mr. Pavlovic was dead.
7 He had been killed by shrapnel in the chest. For her sake he went
8 through the motions.
9 "'You haven't examined him yet,' she said. 'Please do more.'
10 "Everything from the explosion to this had taken about ten
11 minutes. The hospital was ready for the next casualties."
12 [Video-clip played]
13 "Refugees started appearing in no man's land.
15 "He told them to hurry and to take cover. Often the Croats start
16 shooting once they've forced Muslims out of West Mostar through this
17 section of the front line. Fatima and Salin Matic had just been thrown
18 out of their home by Croat gunmen. Mr. Matic, who is 72, managed to put
19 on three shirts and to grab two umbrellas as he left.
20 "His wife, who Is 70, was still in her nightclothes. Their
21 neighbour, 84-year-old Mrs. Almassa Humo, arrived a few minutes later.
22 'Don't sit there,' they told her, 'they could kill you.'
23 "Even if Mrs. Humo still cared, she didn't have the strength to
24 move any further on her own."
25 [Video-clip played]
1 "The civilians know that their only hope is to help themselves,
2 to hang on until the killing ends, to survive the winter. But how do you
3 avoid pneumonia, bronchitis and worse when shells have smashed your roof.
4 These people are refugees. They live in a ruin, like thousands of others
5 in East Mostar.
6 "She can't walk. She lies in stinking clothes on a soaking bed.
7 "'What can I do? Either I die or go on living like this.'"
8 MS. GOY: With the siege of East Mostar, the implementation of
9 the JCE took up a new dimension. The JCE members added unlawful attacks on
10 civilians, terror and destruction of religious property to the criminal
11 means used to achieve their purpose.
12 The sentences imposed show that the Chamber did not give this
13 vicious siege sufficient weight.
14 Another indication that the Chamber did not give the relentless
15 shelling and sniping during the siege sufficient weight is a comparison
16 with the sentences imposed in the cases against Stanislav Galic and
17 Dragomir Milosevic. They were sentenced to life imprisonment and 29
18 years' imprisonment respectively for a shelling and sniping campaign
19 during the siege in Sarajevo.
20 And here we recognise that the cases of Galic and
21 Dragomir Milosevic are not identical to the ones of the respondents in
22 this case. But the unlawful attack on civilians and terror during the
23 siege in both Sarajevo and Mostar show enough similarities to make a
24 comparison meaningful. Galic and Dragomir Milosevic were sentenced to
25 life imprisonment and 29 years respectively for crimes committed during
1 the siege of Sarajevo, including unlawful attacks and terror. In this
2 case, the crimes for which the respondents were convicted include
3 unlawful attacks and terror during the siege of Mostar, but the crime
4 base is much broader. It includes unlawful and dangerous forced labour,
5 even murder during forced labour and during attacks on towns and
6 villages; it includes unlawful imprisonment and detention in terrible
7 conditions; and it includes the expulsion of tens of thousands.
8 The comparison of the sentences imposed in this case with the
9 sentences of life imprisonment and 29 years in Galic and
10 Dragomir Milosevic show that the sentences imposed by this Chamber are
12 This brings me to the third feature I would like to address: The
13 highly organised system of expelling Muslims from Croat-claimed areas and
14 BiH altogether.
15 In this case, the displacement was brought to near perfection
16 through the use of a highly organised and effective system of expulsion
17 involving a network of detention facilities. The JCE members arrested
18 and detained thousands of Muslims. They were detained in harsh
19 conditions, where they were mistreated beaten and abused. To escape the
20 horrible conditions, the detainees had to agree to leave Herceg-Bosna and
21 BiH - often with their families - once released. The releases were thus
22 made contingent upon the Muslims leaving from Croat-claimed territories.
23 The network of detention facilities was a key aspect of the joint
24 criminal enterprise. It spanned across the Croat-claimed territories.
25 It included the Heliodrom in Mostar, Dretelj, and Gabela prisons in
1 Capljina; the Vitina Otok camp; the Vojno detention centre; Ljubuski
2 prison; and numerous others which the Chamber listed in footnote 1677 of
3 volume 4.
4 This system of expulsion through the network of detention
5 facilities was introduced at least by the end of June 1993, when all
6 respondents were JCE members; through it, the implementation of the JCE
7 became more efficient. Volume 4, paragraph 64. For example, in Stolac,
8 none of the 8.000 Muslims remained. The sentences imposed suggest that
9 the Chamber did not give this sinister system adequate weight.
10 The fourth feature that makes the crimes of this case
11 particularly grave is the widespread use of detainees for dangerous,
12 unlawful forced labour at the front line. The JCE members forced
13 prisoners of war as well as civilians, including at a very young age to
14 perform dangerous labour. One victim was just 13 years old. Volume 3,
15 paragraph 1510. For ten months between May 1993 and March 1994, the JCE
16 members forced detainees to build or repair military fortifications or
17 shelters, dig trenches, lug heavy cases of ammunition, or collect and
18 bury bodies of soldiers. Volume 3, paragraph 1514; volume 4, paragraph
20 The victims had to carry out forced labour under dangerous
21 conditions, some were wounded, others even killed. This was part of the
22 JCE members' plan, and all respondents played key roles in the
23 implementation of this plan for various periods of time. The Chamber
24 failed to give this widespread use of forced labour adequate weight.
25 To conclude, Your Honours, four specific features highlight the
1 extreme seriousness of the crimes for which the respondents were
2 convicted: Their large scale; the vicious siege of East Mostar; the
3 highly organised system of expulsions; and the widespread and dangerous
4 use of detainees for unlawful forced labour. All respondents implemented
5 the plan in which these criminal means were used to achieve Croat
6 domination in Herceg-Bosna. All respondents played key roles in its
8 The sentences imposed show that the Chamber cannot have given the
9 gravity of the crimes or the form and degree of participation adequate
10 weight. Had the Chamber given these factors adequate weight, it would
11 have imposed sentences of between 25 and 40 years of imprisonment, 40
12 years for Prlic, Stojic, Praljak, and Petkovic, 35 for Coric, and 25
13 years for Pusic.
14 Such sentences would have been in line with the Chamber's own
15 conclusions on the gravity of the crime and the form and degree of
16 participation of the respondents.
17 Thank you, Your Honours.
18 Unless you have any questions, this ends the Prosecution's main
20 JUDGE AGIUS: Okay, thank you very much.
21 [Trial Chamber confers]
22 JUDGE AGIUS: So we will now start immediately with the responses
23 and it's your turn, Mr. Karnavas. You will have half an hour.
24 MR. KARNAVAS: Good morning, Mr. President. Good morning, Your
1 JUDGE AGIUS: And not half an hour -- yeah, yeah, half an hour.
2 MR. KARNAVAS: Good morning again. Dr. Prlic wishes to make the
3 submissions. He will be responding.
4 THE APPELLANT PRLIC: [Interpretation] Your Honours, in its reply
5 the Prosecution offers nothing new concerning its appeal, and that
6 includes today's arguments presented. Therefore, we stand by all of our
7 grounds of appeal that we based on the four grounds of appeal of the
8 Prosecution. We ask that they be rejected. In particular, it refers to
9 ground -- counts --
10 THE INTERPRETER: Interpreter's correction: Paragraphs 74 and
11 paragraphs 185 and 243.
12 THE APPELLANT PRLIC: [Interpretation] Our position needs to be
13 viewed integrally through all of the submissions, the submissions being
14 the appeal brief, response and reply, as well as the oral arguments
15 presented by our Defence team and the rest of the Defence teams.
16 You have probably noticed that the common word to appear in this
17 courtroom is "context" on the one hand and on the other "puzzle." A
18 puzzle that needs to be fit with pieces that have been devised beforehand
19 it seems. The same method was applied in the judgement based on the
20 puzzle presented by the Prosecution, at the same time neglecting
21 thousands upon thousands of documents and witnesses presented by the
22 Defence, relying at the same time on Prosecution witnesses and experts of
23 questionable credibility as shown in our appeal grounds 2 to 7. For
24 example, from day one we heard about the alleged frequent meetings
25 between Tudjman and Prlic. We can see that first occurred on the 17th of
1 September, 1992, and the other in November 1993, 14 months later.
2 JUDGE MOLOTO: Slow down. Please slow down.
3 THE APPELLANT PRLIC: I apologise.
4 [Interpretation] That is something typical of a puzzle. As
5 regards the other -- or the second meeting, Exhibit P6454, the Prosecutor
6 missed or omitted explaining what Herceg-Bosna is, and that is something
7 I've been saying as of day one. I quote page 34:
8 "As a republic of 50-plus municipalities."
9 However, they used many other terms to picture this alleged
10 rounding of Croatian territories which in their view fit the criminal
11 intent presented. I will again quote something from page 36:
12 "As a government, last spring we brought forth conclusions and
13 proposals, including the transfer of certain brigades from certain areas
14 that would include moving the population residing in the same area."
15 I would like to continue that this was a military matter
16 concerning concentration of forces; however, it was our position that
17 everyone should remain in their respective areas. That position can be
18 seen in P2881; P4208; P8155; 1D3032, page 535; then 1D2230, page 26; and
20 It seems that --
21 MS. BAIG: Excuse me, sorry to interrupt. Your Honours, we have
22 an objection here. Prlic is replying to our response from last week, and
23 this is not properly the subject of the Prosecution's appeal today.
24 JUDGE AGIUS: And I think counsel for the Prosecution is correct.
25 Is your profession that of a lawyer, Mr. Prlic, or not?
1 THE APPELLANT PRLIC: We agreed that I'm going to conduct --
2 JUDGE AGIUS: No, I asked you a question. Are you a lawyer by
3 profession or not?
4 THE APPELLANT PRLIC: No, I am not a lawyer by profession. I
5 used to teach on law faculty, but I was teaching political economy. And
6 if the Chamber allows me to finish, I would appreciate it.
7 JUDGE AGIUS: No, it's not a question of whether we will allow
8 you to finish. Of course we will allow you to finish, but we will allow
9 you to finish according to procedure. And this is why I'm asking you
10 whether you have been trained as a lawyer, because to me it is obvious
11 that you haven't. And since you have imposed on your lawyer your will to
12 defend yourself here now, at this most crucial juncture of the
13 proceedings, you have to also accept to observe the laws of procedure of
14 this Tribunal; otherwise, I will stop you.
15 THE APPELLANT PRLIC: I -- Mr. President --
16 JUDGE AGIUS: You can't -- let me make it clear. You have to
17 reply to what was stated today by the two counsel for the Prosecution,
18 and not for what -- to what was stated earlier on last week. And she is
19 right in her submission.
20 THE APPELLANT PRLIC: May I answer, Mr. President?
21 JUDGE AGIUS: Mm-hm.
22 THE APPELLANT PRLIC: I answered at the beginning relating to
23 what was stating here. In continuation, I'm going to speak about JCE 3
24 and how it was applied in this case. If you allow me just to continue,
25 you would see at the end that I'm going -- that my submission is going to
1 be adequate -- I think so.
2 JUDGE AGIUS: Up to you, Mr. Prlic, but I will stop you if you do
3 not observe the rules of this Tribunal.
4 THE APPELLANT PRLIC: Thank you, Mr. President. I apologise.
5 It was mentioned today the issue of moving of population, and I
6 just want to continue on Croat language.
7 [Interpretation] This proposal was reached on the 15th of June,
8 1993, during the session of the HVO HZ HB, document 1D1669, and it was
9 put in writing on the 13th of July. I quote:
10 "The Supreme Commander Boban -- we propose to the Supreme
11 Commander Boban to urgently gather the Presidency of the HZ HB, the
12 Presidency of the HDZ, and presidents of Municipal Boards of the HDZ, in
13 order to organise a defence of the Croatian territory. The Presidency of
14 the HZ HB and the supreme commander of the HVO are therefore being asked
15 to urgently demand military assistance from the Republic of Croatia in
16 order to protect the Croats in Bosnia-Herzegovina and also to make a
17 decision on the urgent withdrawal of all military units from a particular
18 area," and so on and so forth.
19 It is presented in our ground of appeal 7. In all three contexts
20 the key word is "proposal." Why so? Immediately before these proposals
21 between the 9th and the 13th of June, Kakanj fell and Travnik as well.
22 Travnik was the capital of a Croatian majority province. According to
23 the judgement and the indictment, the same area was supposedly cleansed
24 of Muslims by Croats. However, between 30- and 40.000 Croats were
25 expelled. It is 1D1263, 1D1264, P2875, P2750.
1 The information presented by the department of defence at a
2 session of the HVO --
3 JUDGE AGIUS: Yes, Ms. Baig.
4 MS. BAIG: Pardon me. Again, Your Honours, we're into ground 7
5 of Prlic's appeal and not properly within the scope of the response.
6 JUDGE AGIUS: And again Ms. Baig is correct, Mr. Prlic.
7 THE APPELLANT PRLIC: May I react, Mr. President?
8 JUDGE AGIUS: Yes, but I think you better focus on what is more
9 important --
10 THE APPELLANT PRLIC: Yeah, it is important --
11 JUDGE AGIUS: -- namely, this is do or die for you, and you have
12 taken the responsibility upon yourself. And instead of focussing on what
13 you should be responding today, you're focussing on other things that
14 your lawyer spoke about already last week.
15 THE APPELLANT PRLIC: This is --
16 JUDGE AGIUS: I will stop you. I mean, I can't accept anyone
17 here not to observe the Rules of Procedure and Evidence here.
18 THE APPELLANT PRLIC: I agree fully, Mr. President. I speak
19 about -- this is the reply of ground 2 of OTP appeal exactly.
20 JUDGE AGIUS: This is a reply that you prepared before even
21 coming here, Mr. Prlic, because I'm not blind.
22 THE APPELLANT PRLIC: Yeah, but this was related --
23 JUDGE AGIUS: This is a reply that you prepared before you even
24 knew what the Prosecution was going to say.
25 THE APPELLANT PRLIC: Well, Prosecution didn't say anything new.
1 JUDGE AGIUS: Oh yeah?
2 THE APPELLANT PRLIC: May I continue?
3 JUDGE AGIUS: I -- but you are risking being stopped. If I have
4 another objection, I will stop you.
5 THE APPELLANT PRLIC: Yeah, but we are going to have objection
6 because this is the way --
7 JUDGE AGIUS: Of course -- no, no, no, you're -- we will have an
8 objection if you continue the way you have been going.
9 THE APPELLANT PRLIC: I just want to say -- to continue. You are
10 going to see exactly on ground 2, and this is important to be said here.
11 This is related to alleged responsibility based on Statute 7(3). If I'm
12 able to finish that, I think this is important; and later on I'm going to
13 speak about JCE.
14 JUDGE AGIUS: One moment.
15 [Trial Chamber confers]
16 JUDGE AGIUS: Yes, Mr. Prlic, and this is our final direction to
17 you. The Prosecution appeal is mainly -- not mainly, almost completely
18 on JCE 3 and then a question on sentencing, and you can only address
19 those two issues today. Anything else I will stop you.
20 THE APPELLANT PRLIC: Okay, I have to leave at that.
21 [Interpretation] Why was JCE applied as a type of liability with
22 a single criminal intent? That remains to be a key issue in this
23 courtroom. In our appeal we did not object to the jurisprudence of the
24 joint criminal enterprise, although that could be discussed at length,
25 but the way in which it was applied. Because even the most liberally
1 applied variant could not be supported by the facts in this case. The
2 JCE cannot be derived only from a political intention or even a military
3 order that my colleague Ms. Nozica discussed. We have seen on last
4 Thursday that there is -- all the orders of the Main Staff. There is no
5 order for attack by the HVO in the entire period. Even an order to
6 attack would not mean anything because - according to this logic - every
7 military operation would mean culpability by the person who ordered it.
8 There must be a criminal intent, which of course can be established based
9 on circumstance --
10 JUDGE AGIUS: Mr. Prlic, I stop you. And, in any case, what you
11 are saying is not going to be taken into account because this is not
12 about JCE 3.
13 THE APPELLANT PRLIC: I'm approaching to JCE 3.
14 JUDGE AGIUS: No, no, go to JCE 3. You're -- this is not an
15 interesting, touristic adventure. Go straight to JCE 3 and to
16 sentencing, and that's it.
17 THE APPELLANT PRLIC: [Interpretation] [No interpretation] [In
18 English] ... to sentence before JCE 3. [Interpretation] The criminal
19 enterprise --
20 JUDGE AGIUS: I won't let you have it your way, Mr. Prlic.
21 THE APPELLANT PRLIC: Okay, okay, apologise -- [overlapping
22 speakers] --
23 JUDGE AGIUS: It's us five up here --
24 THE APPELLANT PRLIC: Okay, okay, okay.
25 JUDGE AGIUS: -- who conduct the orchestra. Okay? You do as we
1 say; otherwise, I will ask you to sit down and that will be the end of
3 THE APPELLANT PRLIC: Okay. Thank you.
4 [Interpretation] Under circumstances when the criminal enterprise
5 is construed only based on a political idea, how can we discuss JCE 3
6 when even the important elements of JCE 1 are not met? We are coming
7 close to the -- to a dangerous precedent, namely, accusing of crime
8 anyone, a president, a commander at any level, even of the smallest unit,
9 simply for sending soldiers to war, even if that commander, like me, was
10 never in the chain of command. Judgement volume 4, paragraph 106.
11 And the political idea on which the criminal intent is based is
12 the alleged Tudjman's obsession with Banovina. And whatever is said or
13 done, it's immediately dismissed as a double or duplicitous policy. Even
14 the noblest act as the unparalleled support of Croatia and Croats to the
15 BH and Muslims was, with the basic aim to reject any federalisation of
16 the country, which was a constant of all international plans.
17 For those who want to see the consistently of Tudjman's position
18 that I discussed on day one, here is what he said in his intimate circle
19 between 1992 and 1994 on different topics important to this case which
20 are contrary to the taken out of context citations that served as a basis
21 for establishing the alleged criminal intent.
22 JUDGE AGIUS: Mr. Prlic, I have to stop you again. Mr. Prlic,
23 this -- it's perhaps due to your complete lack of knowledge about law and
24 procedure, but although you purported to mention and go straight to
25 JCE 3, we are being given a lesson in history. I'm not interested in
1 that. I'm only interested in the elements of JCE 3 as they have been
2 suggested by the Prosecution and what's your defence for that. The rest
3 you can take back home with you.
4 THE APPELLANT PRLIC: I just want to say there is no JCE 3
5 without JCE 1 and if JCE 1 --
6 JUDGE AGIUS: You could have said that already.
7 THE APPELLANT PRLIC: It is not resumed yet. I had to strengthen
8 my case. There is no JCE 3. This is direct answer on today discussion
9 by OTP. If it is possible to use my time, I will appreciate; if it is
10 not possible, I'm going to sit down and that's it. I think it is
11 important if you want to have all elements to be able to make your
12 decision. I just tried to help Bench, nothing else.
13 JUDGE AGIUS: You're certainly not helping yourself, Mr. Prlic.
14 THE APPELLANT PRLIC: Mr. President, I have taken my risk by
15 intending to say what I want to say. I'm fully aware of that, and this
16 20 minutes doesn't mean anything. But if you decide another way, I have
17 no other possibility than to accept it.
18 JUDGE AGIUS: Go ahead, let's...
19 JUDGE MERON: Mr. Prlic, the President has been trying to help
20 you and he has suggested that you would have been much better served in
21 your interests had you asked you lawyer to speak for you.
22 THE APPELLANT PRLIC: Okay.
23 JUDGE MERON: You still have a few minutes left and if I were you
24 I would give five minutes or so to your lawyer to present your case,
25 because you are not doing any good to yourself --
1 THE APPELLANT PRLIC: Thank you.
2 JUDGE MERON: -- Mr. President has pointed out.
3 THE APPELLANT PRLIC: Thank you.
4 JUDGE AGIUS: Mr. Karnavas, don't tell me have you not prepared
6 MR. KARNAVAS: Mr. President, 35 years of practicing law I have
7 never come to court unprepared. I am prepared. May I ask how much time
8 do we have left?
9 JUDGE AGIUS: [Microphone not activated]
10 THE INTERPRETER: Microphone, please, for the President.
11 JUDGE AGIUS: You have 12 or 13 minutes.
12 MR. KARNAVAS: Since I won't be able to use all my 13 minutes
13 before we take a break, could we take a break now -- it doesn't matter to
14 me. I can go now and go through the 13 minutes or take a break and --
15 whichever you wish, Your Honours.
16 [Trial Chamber confers]
17 JUDGE AGIUS: Go ahead now.
18 MR. KARNAVAS: Mr. President, Your Honours, I will be very brief.
19 The Prosecution today said a couple of interesting things.
20 First, they said that the scale of omissions was unparalleled -- I think
21 it was unprecedented and unacceptable. They also said the Trial Chamber
22 is responsible to fully adjudicate the indictment. I could not agree
23 more. But are they not also responsible for assessing all of the
24 evidence? Are they also not responsible to issue reasoned decisions?
25 Now if you go through their brief, because -- and they mentioned this
1 throughout today's presentation, you will see that they occasionally say
2 the Chamber unduly limited the scope of the evidence it deemed relevant,
3 it erred by compartmentalising and analysing the evidence, that the
4 Chamber analysed the evidence in isolation, that the Chamber must
5 consider all evidence presented to it and assess and weigh the evidence
6 in its totality and in context. This is in their brief and this is what
7 they were saying today, that for some reason - for some reason - when the
8 Trial Chamber came to this part of the judgement they sort of stopped.
9 The implication being with everything else they were doing a great job,
10 but with this part they just simply failed to analyse properly, they
11 compartmentalised. They didn't take into account all of the evidence,
12 they failed to consider its own findings and relevant evidence that
13 provided context to the incidents, they limited their consideration of
14 evidence, and so on.
15 And I ask: Is that not what we have been saying all along? And
16 is that not what we believe runs throughout - permeates throughout - this
17 entire judgement?
18 The Prosecution says today: Well, Dr. Jadranko Prlic and the
19 others committed all these other crimes, they were foreseeable, and the
20 Trial Chamber simply failed to look at all of the evidence. For somehow
21 they were compartmentalising. They didn't do their job. They didn't
22 properly assess.
23 We submit, Your Honours, that that has merit, their argument has
24 merit, as our argument that in looking at all of the evidence, the Trial
25 Chamber failed or cherry-picked what it believed, you know, was relevant
1 to their version of the events, to where they wanted to go. So we don't
2 accept the idea that somehow the Trial Chamber failed to make a proper
3 assessment with respect to JCE 3. I think they were at a loss because
4 there was a lot of evidence. They were at a loss because the Prosecution
5 had an overly broad indictment where they tried to charge anything and
6 everything for everything to the accused as if they're omnipresent and
8 If you look at our submissions concerning the sentencing, Your
9 Honours, and I believe they're in - one moment - they're in
10 paragraphs 185 to 248 of our response. We deal with the issue of the
11 sentence, because they say the sentence was relatively low in comparison
12 to the gravity of the events and what have you. We don't minimise the
13 human tragedy in this case. We don't minimise the fact that there was a
14 lot of destruction, loss of human life, inhumane treatment. But if you
15 look at those paragraphs, in those paragraphs of our response, we go
16 chapter and verse through the responsibilities and the powers of
17 Dr. Prlic. We tried to explain to the Appeals Chamber how the HZ HB
18 functioned, what were its responsibilities, why it was created, and what
19 it was intending to do. It doesn't mean that crimes were not committed,
20 but the whole purpose of a trial is to determine who is responsible for
21 the crimes, not who is available to be tried.
22 We submit, Your Honour, that throughout this trial, the Trial
23 Chamber erred -as the Prosecution has said not just for their part but
24 for the entire trial, the entire judgement - they failed to assess the
25 evidence properly. And we submit that as a matter of due process,
1 equality of arms -- because we believe equality of arms extends not just
2 to the resources but also to the manner in which the case is tried and
3 the evidence is assessed. They come here today and they say: Give us
4 justice because the Trial Chamber did not assess the evidence properly;
5 we say the same. We say look at the evidence critically. Look at what
6 we've cited. They continually use the Mladic diaries. They use it in --
7 they didn't say it today but they used it in their response. We say look
8 at chapter -- look at ground 5 of our appeal, look at ground 5 of our
9 reply. And therein you will see that the Trial Chamber - despite
10 Judge Antonetti's reasoned opinion or reasoned decision or his analysis -
11 that 38 out of 40 excerpts of the Mladic diaries should be assessed, this
12 is what we submitted, 38 out of 40. It wasn't the Trial Chamber, as my
13 good friend Mr. Stringer said, but it was the minority -- the majority
14 that said no, they cannot come in. The Prosecution comes in today and
15 say: The Trial Chamber looked at things out of context with respect to
16 JCE 3. We say they looked out of context with regard to JCE 1 and with
17 respect to the entire Defence case.
18 And so what's good for the goose is good for the gander. We say:
19 Look at everything, not just some of it.
20 I don't want to take up your time because you have the briefs.
21 The briefs, in my humble submission, are very well written. They are
22 very well -- we cite all the relevant authority. And we present
23 everything that we think is necessary for your consideration. The
24 Defence -- the Prosecution says: Well, for some reason, the Trial
25 Chamber failed. We submit for some reason the majority, in particular,
1 failed because they approached this case with a determination -- with a
2 destination in mind, and here is where I want to end.
3 If I could have the one slide, Suzana, up.
4 The two slides I want to say, because I don't want to give the
5 impression that I'm suggesting that the Judges were unfair, but I do make
6 the suggestion - as I believe Mr. Khan did - that at some point the
7 Judges, especially the majority, might have been looking at the evidence
8 from a particular perspective because after all you will see -- this is
9 on the web site. If I could look at the other one. This is on the
10 official web site of the ICTY and this was on the web site or flyers to
11 this effect were already in existence prior to the judgement. The
12 republic's strategic position made it subject to both Serbia and Croatia
13 attempting to assert dominance --
14 MS. BAIG: Pardon me, Mr. Karnavas.
15 MR. KARNAVAS: -- over large chunks --
16 JUDGE AGIUS: One moment.
18 MS. BAIG: Mr. Karnavas, you appear to be going again into your
19 grounds of appeal.
20 Your Honours, we have an objection again on this matter.
21 MR. KARNAVAS: If I may respond, Your Honour.
22 JUDGE AGIUS: Yes.
23 MR. KARNAVAS: If I may respond.
24 JUDGE AGIUS: Yes, Mr. --
25 MR. KARNAVAS: The Prosecution was the one that was -- been
1 complaining all morning that for some reason when it came to their
2 evidence on JCE 3, they totally ignored and compartmentalised. I'm
3 entitled to show that they did the same thing with us, and this is a good
4 example --
5 JUDGE AGIUS: It is --
6 MR. KARNAVAS: -- and I know it may be embarrassing for the Court
7 to be looking at this, but we suggest that when it came to assessing the
8 evidence for the Defence, whether it was regard to JCE 3 or otherwise,
9 Mr. President --
10 JUDGE AGIUS: Two wrongs do not make a right.
11 You have already made your point as to how you were treated by
12 the first Court, by the Trial Chamber. You had -- you had a good two
13 hours, one of which was stolen away from you by your client. But what we
14 expect from you today is to tell us whether Ms. Baig and her colleague
15 are correct in their submission or not.
16 MR. KARNAVAS: Well, I find it hard --
17 JUDGE AGIUS: If you tell us: We were treated like that as well,
18 you are indirectly telling us that they were right, they were ignored by
19 the Trial Chamber.
20 MR. KARNAVAS: Well, I find it hard to believe, Your Honour, that
21 the Prosecution would have the temerity to suggest that the Trial Chamber
22 was only unfair to them and not unfair to the Defence. Is it possible --
23 is it credible to suggest that only when it came to certain counts of the
24 JCE 3, the Trial Chamber adopted this compartmentalisation process, they
25 decided not to assess the evidence properly, they did not look at
1 everything that was available? We suggest that that is not the case, but
2 we do suggest that throughout the trial that is what happened to all of
3 the accused; and that's why we ended up with the result that we ended.
4 What Dr. Prlic was trying to say is with respect to JCE 3 that
5 was mentioned today, that if you look at his role and his
6 responsibilities and his functions and if you look at all of the facts
7 that were presented, you will see that you don't get to JCE 1; and if you
8 can't get to JCE 1, you can't get to JCE 3. So for us at this stage to
9 try to counter the points on JCE 3 that they're making today, we find
10 somewhat ludicrous, if you will, because we do not accept the notion that
11 Dr. Prlic was engaged in a joint criminal enterprise and was involved in
12 any capacity to any of those events and is not responsible for any of the
13 events. And therefore, it is difficult to go and argue point by point on
14 whether the Trial Chamber should or should not have found Dr. Jadranko
15 Prlic guilty of JCE 3 with respect to certain events. You have to look
16 at his responsibilities and you have to look at the Trial Chamber's
17 analysis of the facts and their conclusions that there was this
18 overarching JCE, which is why I believe my client was trying to address
19 some of the issues with respect to Tudjman.
20 We appreciate the time that you have given to us to make our
21 submissions, we apologise for any inconvenience, and we are certainly
22 grateful to your patience today.
23 JUDGE AGIUS: Thank you. We will have half an hour -- actually,
24 we will start at quarter to 12.00.
25 --- Recess taken at 11.10 a.m.
1 --- On resuming at 11.44 a.m.
2 JUDGE AGIUS: Yes, Defence for Mr. Stojic. You have 30 minutes.
3 MS. NOZICA: [Interpretation] Thank you, Your Honours. Our reply
4 to the appeal by the Prosecution and we have with us our consultant
5 Aidan Ellis.
6 MR. ELLIS: In response to the Prosecution appeal, we don't
7 assert that this trial judgement is perfect. How could we, Your Honours,
8 when we've asserted so many errors in it ourselves? Your Honours will
9 have noted already from our response brief that where points are clear
10 that there are errors, we've tried to concede the points. For example,
11 in paragraphs 145 or 146 of our response brief. But despite those
12 errors, Your Honours, we say that the Prosecution failed to eliminate any
13 reasonable doubt of Stojic's guilt in relation to grounds 1, 2, and
14 aspects of ground 3; and further, that they failed to show that the
15 20-year sentence imposed on Stojic is unjust and plainly unreasonable.
16 We propose to focus today on grounds 1 and ground 4, as the Prosecution
17 did. For the detail, of course, we stand by every point in our written
19 And, Your Honours, in those written submissions we deal with each
20 head of the Prosecution's ground 1 in relation to JCE 3. But the
21 overarching reason why all of those heads of ground 1 should be dismissed
22 is a simple one. When the correct legal standard is applied to the Trial
23 Chamber's findings, the Prosecution has failed to eliminate reasonable
24 doubt that the deviatory crimes were foreseeable to Stojic. And
25 therefore, the Trial Chamber did not err in entering acquittals and no
1 new convictions should be entered.
2 Your Honours, I'll deal with the law briefly because it seems
3 there's no real distance between the Prosecution and the Defence on the
4 key issue. The Prosecution submit that the Trial Chamber erred by
5 applying a probability standard rather than a possibility standard, and
6 it's right that the test defined by the Appeals Chamber is not one of
7 probability; although we do say it's not quite accurately described as a
8 test of mere probability either. It's important in our submission to
9 preserve a meaningful test of foreseeability, and the reason why it's
10 important is that convicting the accused pursuant to JCE 3 means
11 convicting them of crimes that they did not intend and which fell outside
12 the scope of the common purpose. That's why a meaningful foreseeability
13 threshold is required, otherwise the result is the involvement in a
14 common criminal purpose could lead to an open-ended liability for crimes
15 committed thereafter. And we say the test defined in the Appeals
16 Chamber's jurisprudence is a meaningful threshold.
17 The Prosecution cited this morning to Sainovic, to paragraph 18
18 of the Karadzic JCE 3 foreseeability decision. And the tests cited in
19 those cases isn't one of mere possibility; it's whether the possibility
20 that the crime could be committed is sufficiently substantial as to be
21 foreseeable to the accused, the accused as an individual. That nuance,
22 that subtlety in the reasoning isn't caught by just describing this as a
23 possibility test. There is a spectrum of likelihood. On that spectrum,
24 the test isn't as high as probability, but it's not as low as mere
25 possibility either and it's not caught by implausibility remote
2 We would highlight from the many detailed submissions in our
3 brief two points today. First, that considering relevant
4 location-specific factors should lead the Appeals Chamber to dismiss all
5 aspects of ground 1; and second, that the documents relied on by the
6 Prosecution are insufficient in any event to eliminate doubt as to
7 Stojic's guilt. For clarity, when I refer to "incidents," Your Honours,
8 I'm using the language and the numbering used by the Prosecution at
9 tables 53 -- the table on page 53 to 57 of their appeal brief.
10 And to deal first with location-specific factors. We say they
11 are important in this case because of the scale of the crime base
12 considered in the indictment. Where there are so many different
13 locations and where crimes are committed over a period of so many month,
14 we say that what is foreseeable to one accused in one location at one
15 time is not necessarily foreseeable to them many months later, in a
16 distant location. And it appears again there's a measure of agreement
17 between the parties here. Paragraph 12 of the Prosecution consolidated
18 reply at least accepts that location-specific factors are not irrelevant.
19 And what's important about them is not to suggest that Stojic must make a
20 contribution to the crimes in each municipality. We know that's not the
21 point. The point about location-specific factors is that they identify
22 the knowledge that the accused have, knowledge of particular
23 vulnerabilities of civilian populations, knowledge of particular
24 propensities of particular units. And the problem, we say, with this
25 judgement in relation to JCE 3 is that there are very limited factual
1 findings about Stojic's knowledge in many of the locations for which the
2 Prosecution invite Your Honours to enter new convictions.
3 Take the example of Stolac, with an apology if my pronunciation
4 is wrong Your Honours. There the Prosecution invites to you enter JCE 3
5 convictions for two incidents of murder, one appropriation of property.
6 That's incidents 5, 6, and 26. What findings then did the Trial Chamber
7 make about Stojic's role in crimes in that municipality or his personal
8 knowledge of operations there? None, we say, none whatsoever. And in
9 those circumstances, we say it's untenable to enter new convictions in
10 relation to that municipality.
11 And there are many other examples, Your Honours. In Prozor
12 municipality, where the Prosecution invite you to enter six new
13 convictions, incidents 1, 14 through 16, 21, and 24. In the section of
14 the judgement addressing Stojic's responsibility municipality by
15 municipality, it's only paragraph 329 of volume 4 that has anything to
16 say about Prozor. And Your Honours will recall that factual finding from
17 the very final slide that we displayed in the course of our reply
18 submissions on Tuesday. It's the occasion when a particular report,
19 P3418, was found to have been received by two of the defendants but the
20 Trial Chamber managed to reach opposite findings in respect of their
21 knowledge on the basis of that document. Contrast paragraph 329 and
22 paragraph 799 of volume 4.
23 Apart from that unreasonable finding, no other findings about
24 Stojic's knowledge or the circumstances in Prozor at the time when the
25 deviatory crimes occur. Very limited factual findings also in relation
1 to Vares, where taking volume 4, paragraph 380 at its highest - and of
2 course Stojic has appealed those findings - but taken at their highest,
3 his involvement comes days after the crimes were committed.
4 And here is where we really part company with the Prosecution
5 because it's said today that Your Honours can safely enter new
6 convictions on the new JCE counts without requiring extensive appellate
7 fact-finding, that you can move straight from the general findings about
8 contextual factors to enter convictions against Stojic. We say that's
9 wrong, Your Honours. We say that that would require Your Honours at
10 least to consider the factual position in relation to knowledge of
11 circumstances in each of the municipalities concerned. And on that, the
12 Trial Chamber's judgement simply does not assist, Your Honours. It
13 doesn't leave behind the necessary building blocks, the factual
14 foundations and findings, on which Your Honours could build new
15 convictions. And we would say that reflects limited factual evidence in
16 the record about Stojic's knowledge of circumstances in those
18 Absent those location-specific factors, the Prosecution cannot
19 establish beyond reasonable doubt that deviatory crimes were foreseeable
20 to Stojic, and that should be fatal to ground 1 of the appeal on its own.
21 But in any event, Your Honours, my second point. The documents and
22 findings relied on are not sufficient to establish that the deviatory
23 crimes, that the possibility that they might occur, were sufficiently
24 substantial as to be foreseeable to Stojic.
25 There is one error that we say crops up throughout the
1 Prosecution's submissions, and it's the repeated reliance on documents
2 that were simply sent to the Defence Department generally as evidence
3 that proves beyond reasonable doubt that Stojic knew about the content of
4 those documents. That does not necessarily follow, Your Honours. The
5 Department of Defence was not an insubstantial administrative body. The
6 Trial Chamber found that it had six sectors: Main Staff, civil
7 protection, security, health, ethics and morals, and procurement. It was
8 administered through various offices, and each of those sectors was
9 headed by an assistant chief with their own responsibilities for the work
10 of that sector. This is from volume 1, paragraph 540.
11 And, Your Honour, there was evidence about what was supposed to
12 happen when a document was actually received by the Defence Department.
13 There was evidence that the Defence Department stamped documents on
14 receipt. That's not surprising. Most administrative bodies do something
15 similar, but it appears in the transcript at 36247, lines 3 to 21.
16 Your Honours, I will admit that on occasion I struggled with the
17 different stamps applied to the original documents in this case, but I
18 commend P1880 to Your Honours as an example of a document bearing the
19 stamp to show it was received by the Defence Department. And
20 Your Honours will see that the stamp simply says "Defence Department
21 Mostar." Nothing else on it to indicate, for example, that it's gone to
22 a different branch, like the SIS, as we see on some documents.
23 But in relation to many of the documents that the Prosecution
24 relies on, there's no evidence or finding that they were actually seen by
25 Stojic. Take paragraph 24 of the Prosecution reply which introduces
1 P1915 as evidence that the Defence Department were informed of the
2 preparations for operations in Jablanica in April 1993. No stamp on that
3 document to indicate it was received by the Defence Department. The
4 stamp on the original that Your Honours will see relates to the
5 Main Staff; that's presumably why the Trial Chamber specifically found it
6 was received by the Main Staff. Volume 4, paragraph 714. But no
7 equivalent finding that the Defence Department saw it. In fact, the
8 Trial Chamber established - it's volume 4, paragraph 441 - that Stojic
9 was informed of HVO operations in Jablanica after they had taken place,
10 which is obviously inconsistent with the reliance now placed on P1915.
11 And there are many other documents cited in the appeal brief and the
12 reply brief of the Prosecution, where the same comments would apply.
13 P4161, P648, P4177, and P2063, to give only four examples, not addressed
14 to Stojic personally, not bearing Stojic's Department of Defence stamp,
15 and no other way to establish beyond doubt that they were received by
16 him. No witness to testify that they passed the document to him.
17 The Defence tried to assist the Tribunal by locating the Defence
18 Department register, which would have conclusively listed all of these
19 documents that were received by that department; but unfortunately the
20 register could not be found. See 2D1399 for our efforts to find that
22 Your Honour, the result of the absence of that document is that
23 there is doubt that Stojic ever personally saw many of the documents
24 relied on throughout the Prosecution appeal brief. For reasons of time,
25 I'll move swiftly through this, Your Honours, but we also assert in our
1 response brief that a number of the documents that the Prosecution rely
2 on turn out to be dated after a number of the incidents on which they
3 seek convictions. In relation to murder or wilful killing in detention,
4 amongst the documents cited by the Prosecution at P4352 and P4161, both
5 dated August 1993. But the Prosecution is inviting Your Honours to enter
6 convictions for killings in detentions that begin with incident 2 in
7 April 1993, four months earlier. In fact, only part of one incident was
8 committed after the date of P4352.
9 So the submission on this part of ground 1 comes down to this.
10 In relation to each of the deviatory crimes the Prosecution rely on a
11 small number of documents to try to prove that Stojic was on notice that
12 those crimes might occur. But once Your Honours exclude those documents
13 that post-date the incidents, once you exclude those documents which it
14 cannot be established that Stojic saw, once -- we hope Your Honours will
15 also exclude the evidence in relation to P1351 and Gornji Vakuf for the
16 reasons given last week. We say what remains is wholly insufficient to
17 eliminate reasonable doubt that the deviatory crimes were foreseeable to
18 Stojic. And so ground 1 of the Prosecution appeal should be dismissed.
19 Your Honours, I move now to ground 4, sentence.
20 At the start of this appeal hearing, Your Honour, the Presiding
21 Judge, remind the parties that these appeals are not a trial de novo,
22 that the parties must refrain from repeating their cases which were
23 presented at trial, but the Prosecution appeal against sentence is
24 exactly that; it's a repetition of their case which was presented at
25 trial. The Prosecution continues its pursuit of a 40-year sentence for
1 Stojic, exactly the sentence it sought at trial. And as we've pointed
2 out in paragraph 182 of our response brief, many of the Prosecution's
3 written submissions - indeed many of the oral submissions today - bear
4 more than a passing resemblance to the final trial brief or the closing
5 trial arguments.
6 We say the Prosecution failed to identify error in the Chamber's
7 approach to sentencing, that the Trial Chamber didn't impose the sentence
8 that they asked for does not establish error. Your Honours, we say the
9 test was set down for similar Prosecution appeal against sentence in
10 Galic, with the majority concluding at paragraphs 455 and 456 that the
11 Appeal Chamber should only intervene where the Trial Chamber sentence was
12 so unreasonable or plainly unjust that it's able to infer that the Trial
13 Chamber failed to exercise its discretion properly or - in more
14 descriptive terms - where it was taken from the wrong shelf. That's a
15 high threshold, Your Honours, and rightly so. Trial Chambers have a
16 broad discretion on sentencing.
17 This Trial Chamber had the opportunity to hear the evidence in
18 this case over a period of years, including seeing the video that we were
19 shown today of East Mostar, including hearing directly from the victims
20 of these crimes. Whatever view Your Honours take of the quality of the
21 legal reasoning in relation to the JCE or, we say, the absence of legal
22 reasoning, in relation to the crime base, the Trial Chamber chronicled
23 the crimes painstakingly across thousands of pages of a judgement.
24 Against that background, the Chamber's approach to the gravity of the
25 crimes can't be judged solely in relation to the sentencing section of
1 the judgement; it should be weighed against all the pages previously. We
2 say it can't properly be dismissed as cursory. Do the sentences imposed
3 by this Tribunal in comparable cases compel a conclusion that a 20-year
4 sentence for Stojic would be unjust or plainly unreasonable? They do
5 not, in our submission. Dealing with comparable cases are always
6 problematic. No two cases are truly alike. No comparison will bind
7 Your Honours. And there's another danger that the Defence are conscious
8 of because as soon as I start to compare cases, it would be very easy to
9 suggest that I'm trying to minimise the crimes or trying to minimise our
10 responsibility. Your Honours, that's not my intention. Seeing the
11 videos that the Prosecution showed of East Mostar today hits us even
12 after reading the evidence in this case over so many years; it cannot
13 fail but be deeply affecting.
14 On Stojic's behalf counsel began our submissions last week by
15 extending our sincerest condolences to all the victims of the war in
16 former Yugoslavia, and in so doing he was echoing what Stojic himself
17 said in his statement to the Trial Chamber at the end of closing
18 arguments. He said:
19 "From the bottom of my heart, I would like to say that I
20 sympathise. I feel compassion for those people ... and," he continued,
21 "especially the Muslim victims of that war."
22 It's not our intention, nor his intention, to minimise that
23 suffering. The reference is T52964, beginning at line 25.
24 But we do need to look at past cases in order to try and set out
25 what the range of reasonable sentences might be. And we do maintain, as
1 in paragraphs 210 and 211 of our response, that Djordjevic and Sainovic
2 and relevant. Why those cases? Because they're large JCE cases
3 concerning the expulsion of civilian population on ethnic grounds,
4 hundreds of thousands of civilians were displaced. They can't be
5 dismissed as smaller cases. There was no or extremely limited personal
6 mitigation in those cases. Rather than co-operate with the Tribunal as
7 Stojic did, Djordjevic evaded arrest for four years which prolonged the
8 victims' distress. The sentences in --
9 JUDGE AGIUS: We're looking at the clock. You have got another
10 ten minutes.
11 MR. ELLIS: I'm grateful, Your Honour.
12 The sentences imposed in those cases after appeal ranged from 14
13 to 22 years, and insofar as that comparison helps in drawing a range -- a
14 bracket of reasonable sentences, they don't suggest that the sentences in
15 this case come from the wrong shelf. The Prosecution argue again today
16 that the Chamber should impose a higher sentence to take account of the
17 gravity of the siege of East Mostar. And in so doing, the Prosecution
18 relied specifically in its reply on the level of criminality reflected in
19 a nine-month campaign of sniping, shelling, and terror. A nine-month
20 campaign, Your Honours, because the siege of East Mostar on the Chamber's
21 findings began in June 1993 an ended in March 1994. But by that time,
22 Stojic was no longer the head of the Defence Department. He left the
23 Defence Department in mid-November 1993. The Trial Chamber say the 15th
24 of November, the Stojic Defence say 10th of November, but for this point
25 it matters not. There was no evidence that he remained a member of the
1 JCE after that point in November 1993. His responsibility stops at that
2 point halfway through the siege of East Mostar. His sentence cannot be
3 based on level of criminality reflected by a nine-month siege, and that's
4 even if Your Honours uphold his conviction for the unlawful infliction of
5 terror on a civilian population, which we invite Your Honours to overturn
6 in the absence of a reasoned finding as to specific intent.
7 In relying on Galic this morning, my learned friends opposite
8 acknowledge that there are differences between that case and this one,
9 and there are important differences. According to Prosecution
10 submissions, the siege of Sarajevo affected about 300.000 civilians. And
11 Galic's responsibility for that siege lasted for a period of 23 months,
12 significantly longer, significantly more civilians than this case. So
13 the comparison offered by the Prosecution does not assist in showing that
14 this sentence in this case was wrong.
15 Your Honour, does the 40-year sentence proposed by the
16 Prosecution fit better? Well, we've tried to set out in our response
17 brief at paragraph 215 the cases in which the Trial Chamber has imposed
18 similar sentences. They don't fit with this case for the reasons given
19 in that brief, but I see that we're out of date now.
20 I see that the Trial Chamber has now passed sentence on Karadzic,
21 and he was sentenced to a 40-year term, the very term that the
22 Prosecution seek in relation to Stojic. He was found to have
23 significantly contributed to a JCE to remove Muslims and Croats from
24 Bosnian Serb-claimed territory, but that's only one aspect of that case.
25 He was also the driving force behind an additional common purpose to take
1 UN personnel hostage. He also significantly contributed to the shelling
2 of Sarajevo, not for months, but for three and a half years. He also
3 significantly contributed to the Srebrenica genocide, which resulted in
4 the death of more than 5.000 men and the transfer of tens of thousands of
5 women, children, and elderly men.
6 Your Honours, Stojic's sentence doesn't belong on the same wall
7 as Karadzic, let alone the same shelf.
8 The increased sentence sought by the Prosecution is dramatic. If
9 the Prosecution appeal is granted, the full term would not expire until
10 2047, at which point - if alive - Stojic would be 92 years old. We say a
11 sentence of that severity is not warranted. We say the Prosecution have
12 failed to show that the sentence was taken from the wrong shelf, failed
13 to show it was so unreasonable and plainly unjust that it is safe to
14 infer that the Trial Chamber failed to exercise its discretion. And we
15 commend to Your Honours' attention in fact our grounds 56.2 in relation
16 to double counting and 57 in relation to time spent on provisional
17 release with significant restrictions on his liberty.
18 But, Your Honours, this is our final chance to say something to
19 the Bench. We listened closely this morning to the Prosecution say that
20 there were unprecedented -- unprecedented omissions in this judgement and
21 that there were failures to assess all of the evidence in the case.
22 Your Honours, those errors are pervasive. It's the point my learned
23 friend Mr. Karnavas was making I think in the end of his submissions.
24 Those errors are pervasive. They don't stop where the Prosecution appeal
25 finishes. They're symptoms of exactly the same problem that we
1 identified when we said that the Trial Chamber failed to consider the
2 weapons, the munitions in particular, that were sent from Croatia and the
3 HVO - the symptoms of the errors, the failure to consider all of the
4 evidence in relation to the common purpose, single common purpose of the
5 JCE. And, Your Honours, as this hearing has gone on, you've heard more
6 and more errors pointed out by more and more submissions on both sides of
7 the courtroom. And we say the inevitable conclusion at the end of that
8 is unfortunately this is a judgement which does not meet the standards
9 laid down by this Tribunal. It doesn't provide a reasoned decision on
10 all of the evidence, it doesn't assess all of the arguments. And what --
11 and we say, Your Honours, that the only possible response in the face of
12 all those errors is to reverse the convictions, to allow the Prosecution
13 appeal only to the extent set out in our written brief, and to overturn
14 the conviction of Stojic.
15 Your Honours, think I've used my time.
16 JUDGE AGIUS: Thank you, Mr. Ellis.
17 We now move to the Defence team for Mr. Praljak.
18 Yes, Madam Fauveau.
19 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, Your
20 Honours, I shall be extremely brief.
21 The appeal by the Prosecutor indicates that there are failings in
22 the judgement; this is undeniable. The Prosecutor holds that this is
23 unacceptable as regards a legacy of this Tribunal and of the
24 international community. Today's transcript page 7, line 4 to 5.
25 The judgement in its entirety is indeed full of mistakes which
1 are -- cannot be remedied. Indeed, it is unacceptable. But first and
2 foremost, it is unacceptable for the accused; it is unacceptable for this
3 Tribunal; and lastly, it is unacceptable for international criminal
4 justice, since its credibility is challenged in this case.
5 The first and third ground of the appeal of the Prosecution
6 concerns crimes which would have resulted from the common purpose under
7 Count 1 or that would have been committed as part of a common plan, i.e.,
8 third ground of appeal. But there was no common plan. So as regards the
9 first ground of appeal, we cannot talk about a JCE 3 if there is no
10 JCE 1. And as regards or under the third count, we cannot talk about
11 crimes committed as part of a JCE if there is no JCE or JCE does not
13 As regards the remainder, we maintain all our written arguments
14 indicated in our response brief as regards grounds 1, 2, and 3 of the
16 I would just like to add - without addressing what we have
17 already mentioned - one remark concerning the videos we were shown this
18 morning by the Prosecution. These videos make no difference as regards
19 the evidence submitted by the Defence in these proceedings relating to
20 the siege of Mostar. I would invite you to read our grounds of appeal
21 relating to Mostar.
22 Mr. President, Your Honours, we will not submit any arguments
23 concerning ground 4 on sentencing. Any sentencing of Mr. Praljak would
24 be unjust, but first and foremost it would be contrary to the standards
25 and principles -- elementary standards and principles of international
1 law since his responsibility has not been established. The conviction of
2 Mr. Praljak is based on erroneous conclusions, mischaracterised facts, a
3 conclusion which the Trial Chamber reached in which -- after proceedings
4 in which the right of the accused on Article 21 of the Statute was
5 breached. The appeal of the Prosecution should be entirely rejected as
6 well as the arguments -- all the arguments presented by the Prosecution.
7 Thank you.
8 JUDGE AGIUS: Okay. Are you okay if we take Petkovic? Yeah, all
10 Defence team for Mr. Petkovic. Yes, Defence team for
11 Mr. Petkovic, you can start. Thank you. And you have 30 minutes.
12 MS. ALABURIC: [Interpretation] Thank you, Your Honour. We're
13 going to try to use our half an hour in the manner we believe to be the
15 For a start, I will agree completely with my colleagues from the
16 Prosecution when they said that the judgement is inexplicably
17 inconsistent. I know for a fact that they have spent days and weeks
18 trying to get a grip on what was going on with all 211 incidents and
19 which of the accused was convicted or not convicted for each of one of
20 those incidents.
21 At the start, I'm going talk about appeal ground 2 or the failure
22 by the Chamber to decide the responsibility of the accused according to
23 command responsibility after establishing that there was no
24 responsibility under JCE 3. Slide 2, slide number 2, you can see what
25 the Prosecutor says. I'm going to deal with the request to overturn the
1 judgement and convict my client according -- to counts according to
2 command responsibility, and then I'm going to say a few words about
3 alternative proposals for the Appeals Chamber to overturn this
4 judgement -- or actually, to remand this issue to the Trial Chamber for
6 As far as the acquittal and conviction according to command
7 responsibility, Your Honours, I would like to say that we are aware that
8 I'm embarking on a topic in which this Appeals Chamber holds different
9 views. We know that it's not wise to deal with topics on which there is
10 disagreement among the members of the Trial Chamber, but we will still do
12 Slide number 3 is a brief explanation that we require for our
13 submission because in separate opinions of Judge Pocar in the Gotovina
14 case as well as in a series of other cases at this Tribunal, also at the
15 European Court, the position was that an acquittal must not be reversed
16 or overturned, regardless of the discretion of the Chamber to do so, if
17 thereby they deny the accused's right to an appeal. Since the Statute or
18 the Rules of this Court do not foresee an appeal to an appeal decision,
19 then it's a question whether in such a case the right of our accused
20 would be violated, i.e., for a higher court to review a judgement reached
21 in such a way.
22 THE INTERPRETER: Could the speaker please speak -- slow down.
23 JUDGE AGIUS: Slow down a little bit. Please slow down.
24 MS. ALABURIC: [Interpretation] I apologise. I will do.
25 In view of the fact that I'm also focussed on human rights, this
1 standpoint is very dear to me. I would like to point out what the
2 practice was in the former Yugoslavia 50 years ago. The following slides
3 show an excerpt on the Law on Criminal Procedure of the SFRY. The year
4 is 1986, but this is a law from 1977 that has been revised. And you can
5 see from this text that this law during the time of Yugoslavia, which was
6 a single-party Communist totalitarian country, accused had the right to
7 appeal against the verdict of a court in the second instance and is ruled
8 on in the third instances only in the following cases. If the court in
9 the second instance modified a verdict of acquittal of the court in the
10 first instance and pronounced a verdict finding the accused guilty, all
11 of this was very well conceived. The Law on Criminal Procedure today of
12 the Republic of Croatia contains the same wording. This is Article 490
13 of the law.
14 Also, this is contained in the regulations of Bosnia and
15 Herzegovina. They included this right at the beginning of the 1990s
16 because all the countries created from the former Yugoslavia inherited
17 the Law on Criminal Procedure, and this provision is contained in the
18 criminal procedure law of Bosnia and Herzegovina at the moment.
19 In our countries, had this trial been conducted in Bosnia and
20 Herzegovina and Croatia, our appeal -- our appellants would be guaranteed
21 the right not to have an acquittal turned into a conviction without
22 assuring the adequate protection, meaning the appeal to -- the right to
23 appeal and for a higher court to review the legality of a decision by a
24 higher court.
25 What we expected from you, Your Honours, was to provide equal
1 rights to our accused before this Tribunal as the ones they would have
2 had, had they been tried according to the laws of the former state which
3 was a single-party Communist totalitarian state.
4 As for our alternative request for the case to be -- to be
5 re-tried, here we have explicitly heard of one crime that my client is
6 being charged with in that context, that is the murder of six detainees
7 in Dretelj. My colleague Ms. Baig mentioned four such crimes. I think
8 that this was an error because our records indicate that there was six
10 In the column we have tried to show what the Trial Chamber's
11 conclusions were regarding that incident and why it did not convict
12 Petkovic under JCE 3 of liability. The Trial Chamber believed that
13 Petkovic was informed about the event seven months after the event, and
14 therefore that was not something that was foreseeable as far as he was
16 The next column we have two brief paragraphs from the
17 Prosecution's appeal. The Prosecutor considers that the factual
18 conclusions of the Trial Chamber are sufficient to overturn an acquittal
19 into a conviction. Just a brief comment. Now I'm going to try to be
20 very, very fast.
21 The whole story is based actually on a document by the
22 International Red Cross, P07636, which is the source of Petkovic's
23 information about the crime. The slide will present this document. I
24 would like to draw your attention to the fact that the document was set
25 to Mr. Marjan Biskic and it states here that he was the deputy minister
1 of defence. He was actually assistant minister. And for our purposes
2 today, it is important that this was a person who was in charge at the
3 Ministry of Defence for the military police and the security service
4 called SIS, S-I-S, who was responsible for processing perpetrators of
5 crimes and for conducting investigations. Thus, he was the one who
6 received this letter which was sent for the information to Petkovic,
7 Prlic, and to the president's office and to the Supreme Command. If we
8 keep in mind some other circumstances that I'm referring to here, and
9 because I have such a brief period of time at my disposal I'm only going
10 to refer to 4D01614. The document clearly indicates that Petkovic,
11 although at that time in December 1993 was deputy head of the HVO
12 Main Staff, was not automatically the person in charge if the chief of
13 the HVO Main Staff was absent. We see from the document that Ante Roso
14 who was the then-head of the Main Staff said that other than Petkovic
15 Matic, Vrbanac were also authorised to stand in for him when he was
16 absent. So if we established who at which period was authorised to carry
17 out the tasks of the chief of the Main Staff, we need to be familiar with
18 a whole series of circumstances. At this point I don't want to burden
19 you with the regulations dealing with who was in charge and how to
20 discipline soldiers; we don't have time for that.
21 But based on this, in brief, I can conclude in view of the fact
22 that a person authorised to process crime perpetrators was informed about
23 the crime and was authorised to undertake the necessary steps, there was
24 no reason for Petkovic, Prlic, or the Supreme Commander do anything in
25 particular in that regard.
1 The next slide, slide number 9 refers to the thefts in Stupni Do
2 for which the Prosecution also cites Petkovic's responsibility according
3 to the chain of command. I'm going to try to be as brief as possible
4 here because there's a lot of information that I wanted to go over. The
5 crime did happen; that is beyond dispute. We discussed this in our
6 submissions last Thursday, but what we would like to say is -- can we
7 please look at the next slide and can it please not be broadcast because
8 it contains statements by protected witnesses, so I just wanted to make
9 sure that they remain confidential.
10 As for the investigation itself, (redacted)
12 (redacted) Witness Bandic spoke
13 about the activities of the military prosecutor. This is transcript
15 Witness Jan Koet confirmed his contacts with the public
16 prosecutor regarding the accusations regarding crimes in Stupni Do. This
17 is P10092, paragraph 22. Engaging the military district prosecutor
18 involved to investigate the crimes in Stupni Do is seen on the basis of
19 document 4D00499. Ivica Rajic who led the actions in Vares explicitly
20 communicated with the Supreme Commander Mate Boban, and the following
21 evidence speaks as to that. (redacted)
22 Ivica Rajic sent reports directly to the Supreme Commander.
23 Exhibit P06291.
24 Boban spoke about the crimes in Stupni Do, the investigations,
25 and the necessity to punish the perpetrators at a meeting with
1 President Tudjman in Split on the 5th of November, 1993. My client,
2 General Petkovic, was also present. This is the document P06575.
3 Then-Defence Minister Perica Jukic contacted UNPROFOR in order to
4 investigate the crimes in Stupni Do. This is document 4D00506.
5 And now we can show the next slide and then we will keep the
6 following one confidential. This is evidence that speaks about the
7 security service, the SIS, and the one that investigated the crimes in
8 Stupni Do. This is document P06828. It's a SIS report which was sent to
9 the then-Minister of Defence Jukic and the then-Chief of the HVO
10 Main Staff Roso. Witness Bandic also spoke about this. This is
11 transcript 38324. Witness Jan Koet? Also spoke about the investigation,
12 same document, P10092.
13 If we accept the standard set by the Trial Chamber in the Blaskic
14 judgement, we are going to see that the organs authorised to investigate
15 and process perpetrators of crimes were absolutely involved in relation
16 to Stupni Do. Other than that, at that point in time, Petkovic was the
17 deputy chief of the Main Staff, and I just need a couple of more minutes
18 to discuss how Ivica Rajic changed his name to Viktor Andric. Can we
19 please not broadcast this slide.
20 We can see from the following documents that on the 10th of
21 November, 1993, Mate Boban issued a statement that Rajic was relieved of
22 duty. This is document P10255. (redacted)
24 (redacted) This is transcript 24532 to
25 323 (as interpreted). Witness Bandic told us that Mate Boban decided to
1 keep Rajic but under the name of Viktor Andric. This is transcript page
2 38306. And now there's a series of documents - I mentioned just a few
3 here - but there are numerous such documents showing that the entire
4 political and military structure of Herceg-Bosna knew that Rajic had
5 changed his name. I apologise if somebody perhaps didn't even know that,
6 but my client, Mr. Petkovic, did know that.
7 And then what happened then with Ivica Rajic? In April 1994
8 again he changed his name to Jakov Kovac this time. In 1995 Rajic was
9 arrested but he was not charged for the crimes in Stupni Do, and finally
10 the Mostar Court acquitted Rajic. All this evidence and there are more,
11 we can conclude that Milivoj Petkovic cannot be held responsibility
12 according to command responsibility for the theft in Stupni Do. Simply
13 speaking, all his superiors were equally as informed about all events,
14 and the organs of Herceg-Bosna entrusted with the investigation and
15 processing of crimes were informed about everything.
16 The conclusion about this is that we feel that this ground should
17 be denied as groundless.
18 As for the third ground of appeal, just briefly, I really tried
19 and read the judgement a million times. And in my view and according to
20 my reading of judgement, the Prosecution is not correct when they say
21 that my client was not convicted of wilful destruction, wanton
22 destruction, in these four locations. In the left-hand column you see
23 which locations are dealt with here. I also tried to give excerpts from
24 volumes 3 and 4, the paragraphs that refer to those crimes, and my
25 conclusion is that my client was punished. Perhaps this is one more
1 proof of how hard it is to read this judgement.
2 I think that I still have -- I just have five minutes, ah, ten
3 minutes. Ten minutes. Then I can slow down a little bit.
4 JUDGE AGIUS: You are correct, you have ten minutes left.
5 MS. ALABURIC: [Interpretation] Now I'm going to talk about the
6 first ground of appeal, and I'm going to round off with the topic of
7 Mostar and the sentencing.
8 As for the first ground of appeal is concerned, the Prosecution
9 stated correctly that there is a total lack of uniformity as far as
10 terminology is concerned. We tried to determine when probability and
11 possibility standards are being used. For our purposes here,
12 General Petkovic, we believe that the standard has been properly set and
13 established, and we believe that there is a lot of linguistic confusion
14 here and that in essence the real, proper standard was applied; and that
15 for this reason, this ground of appeal is without basis.
16 As for analysing the crime base in such a way that each
17 individual crime is separately analysed, we hope that as in the
18 judgements -- in the judgement case, paragraph 413 and Martic appeal,
19 paragraph 169, we believe that an analysis should be carried out on a
20 case-by-case basis.
21 I will skip a couple of sides now because I don't have sufficient
22 time. We will continue at page 20.
23 I am very happy when I come across a situation where I can agree
24 with the Prosecution and thank them for something they have done for my
25 client, as I would like to do so now. According to their ground of
1 appeal 1(g) under (f), they were of the belief that General Petkovic was
2 convicted for destructing religious facilities under JCE 1, but it should
3 have been under JCE 3. Given the fact that this works in favour of my
4 client, I would like to thank them; but we nevertheless believe that
5 there is no ground for liability under any of these aspects.
6 Given the fact that my learned friends concluded their
7 presentation by showing video footage of Mostar, which is upsetting
8 enough, I also wanted to conclude my presentation discussing the siege of
9 Mostar, its destruction and the terror of civilians. We can play the
10 footage now. It is slide 21. We do not want to diminish the importance
11 of any victim. What we wanted to provide the Appeals Chamber with,
12 according to our view, is a full picture of events. All of these people
13 were protected witnesses, meaning that the transcript provided here is
14 also protected. These three witnesses, Your Honours, were the
15 representatives of the international community: Witnesses BB, BA, and
16 BC. If you look again at what they said on the topic, we can see that
17 they established that the civilians could and wanted to leave East Mostar
18 but were not allowed by their authorities, the statements of these three
19 witnesses are identical. They also referred the Bench to their reports.
20 In other words, they were aware of the situation, i.e., that the
21 civilians wanted to leave East Mostar.
22 We also wanted to specify a couple of Army of BiH documents,
23 meaning the people from their hierarchy who were placed there
24 East Mostar. Document 4D719 is dated the 14th of October, 1993. It is a
25 report by the commander of the ABiH. He said that transporting the
1 civilian population presents a great problem as well as the transport of
2 others leaving in the direction east and --
3 THE INTERPRETER: Interpreter's correction: North and south of
5 MS. ALABURIC: [Interpretation] -- this was in October of 1993.
6 The Army of Bosnia-Herzegovina wanted the civilian authorities to assume
7 the proper role and take responsibility for transport of civilians.
8 The next document is 4D545, an excerpt from Esad Sejtanic's book.
9 He was an ABiH commander. He literally wrote as follows:
10 "Many inhabitants want to go to Jablanica and further afield to
11 Bosnia. By repressive measures regrettably, we prevented the outflow of
12 population and reduced any movement of population to a minimum."
13 Your Honours, we wanted to show you this, so as to keep in mind
14 that the situation in Mostar was not only the consequence of operations
15 conducted by the HVO. The ABiH was very much active in the area at that
16 time as well. As can you see, civilians remained in East Mostar, also
17 because the authorities in that part of town would not allow them to
18 leave. Believing, Your Honours, that we managed to show that in the
19 first half of 1993 there were no mass movements of Muslims and that no
20 crime committed during that time can be reasonably concluded as a crime
21 having being committed with the idea of furthering the plan of ethnic
22 cleansing, and given that in mid-1993 there was an all-out war between
23 the HVO and the ABiH, and that the so-called siege of Mostar and the
24 plight of civilians came as a result of not only HVO actions but those of
25 the ABiH as well, primarily because they prohibited the civilians to
1 leave East Mostar - bearing all that in mind, as we specified in our
2 submissions, we believe that my client's sentence, the sentence of
3 General Petkovic, is not unreasonable or unjust from the point of view as
4 discussed by the Prosecution. It should not be increased. It should
5 either be reversed, rejected, or drastically reduced.
6 Thank you very much. I believe I have run out of time.
7 JUDGE AGIUS: Thank you, Madam. We will have an hour-and-a-half
8 break instead of the one hour that was communicated to you. So we will
9 resume at 15 minutes past 2.00.
10 --- Luncheon recess taken at 12.47 p.m.
11 --- On resuming at 2.16 p.m.
12 JUDGE AGIUS: So thank you. Mr. -- Defence for Mr. Coric, you
13 have 30 minutes.
14 MR. IVETIC: Thank you, Mr. President. Good afternoon,
15 Your Honours.
16 At this time we would like to try to utilize that time-period
17 which we have as efficiently as possible. Since we already addressed the
18 Prosecution's ground 1A last week in -- at some great length in response
19 to Your Honours' questions, I believe it was question 10, we will not be
20 spending more time on that today repeating those same arguments. Instead
21 we will focus more on the remaining grounds of the Prosecution appeal.
22 We also announce that we stand behind our written submissions
23 such that we are not conceding anything -- any topic that is in our
24 written submissions which we do not get to discuss in open court today
25 due to the time.
1 In essence, the Prosecution appeal presented in its brief and
2 today presents several grounds seeking an increase of a sentence which we
3 believe is already manifestly in excess and unjust given the
4 circumstances. The Prosecution relies upon Mr. Coric's position and
5 alleged acts and omissions to allow a climate of impunity, and we submit
6 that when viewed under the totality of the evidence as the trial --
7 pardon me, as the Prosecution even asked Your Honours to do at temporary
8 transcript page 12, lines 14 to 25, as to Coric, we believe that under
9 that totality the conclusions of the Prosecution are wrong as to
10 Mr. Coric.
11 I will just say a few words about subground 1B of the Prosecution
12 appeal. The Prosecution claims that the Trial Chamber disregarded
13 Prosecution evidence and thus wrongfully acquitted Mr. Coric of certain
14 incidents. However, the Prosecution has failed to show what evidence was
15 alleged to be in existence which was disregarded and which showed that
16 Coric knew of the commission of crimes and that he was involved in the
17 crimes and that he also knew that they were not being punished or
18 processed by the relevant investigative or judicial entity. To the
19 contrary, a review of the judgement and the underlying evidence
20 demonstrates that it was Defence evidence on this matter that was not
21 engaged and properly analysed by the Chamber and which now must be
22 analysed in light of the Prosecution's appeal.
23 At paragraph 29 of our response to the appeal, we have detailed
24 certain evidence that the Trial Chamber disregarded from the Defence,
25 including court registers of hundreds of criminal reports filed by both
1 the military and civilian police against perpetrators of crimes against
2 Muslim victims. Now you may ask why is that important. Let me bring
3 that to your attention.
4 Today at temporary transcript page 4, we heard the Prosecution's
5 very emotive rendering of the events surrounding the tragic death and
6 murder of Sanida Kaplan. And I apologise if the pronunciation of the
7 name is off, I'm not sure exactly if it is Kaplan or Kaplan, but that is
8 the individual at issue. I would direct Your Honours to the evidence in
9 the case, P9550, 5D4234, P -- pardon me, 5D4236. These are precisely
10 court proceedings, indeed judgements, that have been entered against the
11 perpetrators of the crimes relating to the Kaplan family entered by the
12 appropriate organs in BiH. And furthermore, if one reads those
13 judgements, you will see that the judicial authorities after the war cite
14 to and are greatly assisted by criminal reports and other documents that
15 date from 1993 that are precisely part of these court registers that the
16 Defence has been talking about that were transferred to the relevant
17 judicial organs to complete the investigative work that had been
18 accomplished by the police filing criminal reports against perpetrators.
19 And that is the -- the register we've been talking about is 5D4288. We
20 have discussed it at length. This is a large number of proceedings for
21 crimes against persons of all ethnicities.
22 So, Your Honours, we submit that the Prosecution was not entirely
23 correct this morning when they left Your Honours with the impression that
24 justice would be denied to the Kaplan family if these acquittals of
25 Mr. Coric were to stand. Indeed, justice against the actual persons who
1 committed the crimes has already been undertaken by the organs at issue.
2 And there's been no linkage to any acts or omissions of Mr. Coric.
3 Thus, we submit, the Prosecution appeal has no merit if we
4 consider this bulk of evidence that supports the proper processing of
5 criminal reports by both the military and civilian police, and,
6 therefore, the acquittal of Coric should be for even more crimes than
7 those that the Trial Chamber acquitted him of.
8 Given the presumption of innocence and the requirements of in
9 dubio pro reo and given that the Prosecution bears the burden of proof,
10 we believe that any error made by the Chamber needs to be again evaluated
11 by this Appeals Chamber under the light of those same principles, and in
12 that sense, the Prosecution ground cannot be sustained.
13 I would move to ground 2 of the Prosecution's appeal relating to
14 Article 7(3) responsibility. Your Honours have read in regards to
15 ground 2 of the appeal that the Prosecution focuses this ground on their
16 brief that Mr. Coric had effective control over military policemen and
17 that he was an architect, as they say in paragraph 404 of their appeal,
18 of the HVO network of detention centres. And we've heard a lot today
19 about this network of HVO detention centres. In fact, I was able to mark
20 down at least at temporary transcript page 32 and 36 that the Prosecutor
21 relied upon that network today.
22 And they claim that Mr. Coric failed to do anything to punish or
23 prevent crimes. This morning, Your Honours, at temporary transcript
24 page 17, they claimed that Mr. Coric, among others, had knowledge of
25 crimes, and then at temporary transcript page 14, they said he did not
1 take steps to curb criminality. We believe that the evidence and the
2 incidents that the Prosecution relies upon do not support this
3 conclusion. And as an example, one incident relied upon by the
4 Prosecution in its appeal brief, and they use this for both JCE 3 and
5 7(3) liability of Mr. Coric, is the 14 July 1993 incident involving the
6 killing of one and the wounding of two detainees at Dretelj. And this is
7 at Prosecution appeal brief, paragraph 279, and 317 through 321.
8 However, if the facts of the same are review -- are dilated upon, it is
9 clear that no 7(3) command responsibility nor other criminal liability
10 can be attributed to Mr. Coric. And, again, Dretelj was mentioned at
11 temporary transcript page 20 today, albeit in a general sense as to
12 another appellant.
13 Now, in the Prosecution's appeal, they rely upon P3446 in
14 footnote 1016 for this ground. But that document, from the commander of
15 the military police stationed at Dretelj, claims as to the perpetrator, a
16 Mr. Vulic, a military policemen who shot the inmates as follows:
17 "After giving a statement was then relieved of his duty as
18 military policeman, crime investigators will conduct a more detailed
19 investigation about all of this."
20 That's what the document the Prosecution relies upon says. It is
21 clear from such a report that Mr. Coric as chief of the military police
22 administration was informed that after a shooting incident, all necessary
23 and appropriate steps foreseen under the law were taken by the
24 authorities, indeed by the superior officer of the perpetrator, who had
25 possibly committed a crime and that steps were under way by the
1 investigative organs to determine the consequences of the same.
2 There was no reason for Mr. Coric to doubt that all appropriate
3 investigative and disciplinary procedures, including legal steps, would
4 be taken according to the relevant authorities after having received that
5 report. Thus, Coric could not be put on notice of any crime for which he
6 needed to intervene to punish or discipline himself. Indeed, we have
7 other evidence, P3476, and a Prosecution protected witness who testified
8 at 22401 to 22402 as to appropriate steps that were taken against the
9 perpetrator of this shooting.
10 Now, under the prevailing ICTY jurisprudence, where reports were
11 made to the appropriate authorities by subordinates of the accused for
12 the institution of disciplinary matters, the accused has discharged his
13 duty and cannot be held criminally responsible under Article 3. We have
14 that from the Boskoski and Tarculovski trial judgement, paragraph 536.
15 Further, we have from the Popovic appeals judgement, paragraph 1942, that
16 the use of disciplinary measures may be sufficient for a superior to
17 discharge his duty to punish crimes under Article 7(3).
18 As we stressed last week and as we stress again here today,
19 neither Coric nor the military police could undertake steps once a
20 criminal investigation and criminal report were submitted to the relevant
21 judicial organs to follow through on the initial disciplinary actions of
22 military policemen who may have committed crimes.
23 Contrary to what the Prosecution presents in their appeal, Coric
24 had no effective control over military policemen at Dretelj and Gabela
25 military remand prisons which were under the effective command and
1 control of the 1st Knez Domagoj Brigade and its commander, Obradovic. We
2 see that at P3731, P4253.
3 The evidence shows the sole duty of the military police battalion
4 within Dretelj was to assist the HVO brigade in security issues under the
5 command of the brigade commander and to report on eventual criminal
6 incidents connected to murders of the military police. The evidence
7 shows the military police administration did not have and Mr. Coric did
8 not have authority nor influence over the conditions of detention at
9 these two facilities.
10 Now, this relates to what the Prosecution said today at temporary
11 transcript page 17 and 14 as to steps not being taken by Coric to curb
13 In our response brief to the Prosecution appeal, at paragraphs 52
14 and 81 through 83, we showed the variety and multitude of steps that
15 Mr. Coric undertook, his many efforts to try to positively affect
16 conditions in Dretelj despite his lack of authority over the same, by
17 addressing various higher organs. We will not repeat those submissions
18 here today, but, rather, would refer Your Honours to look to those
19 sections of our response brief and consider those paragraphs and consider
20 those efforts of Coric when assessing whether the Prosecution's claim, as
21 presented today, bears merit or, as we submit, does not bear merit.
22 We submit that no Article 7(3) command liability can attach to
23 Mr. Coric for failing to take actions within his limited powers,
24 especially under the existing evidence on record. And, again,
25 Your Honours at temporary transcript page 10, lines 10 through 19, and
1 temporary transcript page 12, lines 14 to 25, Madam Prosecutors asked
2 that the Trial Chamber needed to look at the totality of the evidence.
3 We believe if Your Honours look at the totality of the evidence, you will
4 agree that Mr. Coric cannot bear criminal responsibility for these
6 Now, again, as an extension of this same point and again
7 responding to paragraph 404 of the Prosecution's appeal wherein Mr. Coric
8 is named as an architect of this network of detention centres which was
9 mentioned today at least two or three times, I have temporary transcript
10 pages 32 and 36 written down, and today also the Prosecution said that
11 the Trial Chamber erroneously acquitted Mr. Coric despite having made
12 findings that he should have been found guilty of. Well, if we use this
13 same standard to review the trial judgement, the Defence submits that
14 exculpatory findings and contradictory conclusions of the Trial Chamber
15 are made as to Coric in finding him guilty. We would point out, among
16 other things, the following.
17 Volume 4, paragraphs 905, 916, 1421, 1428 of the judgement,
18 wherein Coric never restricted access to representatives of international
19 organisations when requested. This doesn't fit into the Prosecution's
20 scenario as presented today. Therefore, their appeal cannot stand.
21 Next, volume 4, paragraph 955, the Trial Chamber found that Coric
22 was not informed of mistreatment and had no reason to believe detainees
23 were mistreated. This also does not support the Prosecution appeal
25 Volume 2, paragraph 1470, finding that beginning October 1992,
1 there is no evidence that detainees were sent to perform labour with
2 Coric's approval.
3 Volume 2, paragraph 1612, 1617, 1633, that neither the military
4 police administration nor the military police were involved in any
5 incident inducing the alleged mistreatment of detainees working in the
6 front lines.
7 We believe that Your Honours should also look at the
8 contradictory finding of the Trial Chamber at volume 2, 1446, insisting
9 that Coric ordered release of detained persons upon letters of guarantee
10 despite confirming that no such orders existed in evidence. And we would
11 also point to the -- volume 4, paragraph 960 to 961, that restrictions
12 or obstructions to access to the detention centres could not be said to
13 be ordered by Coric.
14 And just two more. Volume 4, 897, 899, and paragraphs 955, 957,
15 962, 985, 988, 1018, that demonstrate that Coric lacked access to reports
16 about prison conditions. Again, this does not support the version of
17 events that the Prosecution has presented as part of their appeal today.
18 And lastly, in this regard, volume 4, 904, the finding that Coric
19 was not involved in health matters or logistics for the prisons which,
20 again, goes contrary to the Prosecution's appeal.
21 Respectfully, if the Prosecution wishes to look at the
22 Trial Chamber's errors, it must concede that these errors apply to the
23 convictions of Mr. Coric as to detention facilities. Thus, we believe
24 that to grant the Prosecution appeal one would have to ignore these other
25 inconsistencies and these false convictions which would thus lead to a
1 miscarriage of justice.
2 As to ground 3 of the Prosecution's appeal, I think we have been
3 rather clear and succinct in our response brief and therefore we stand
4 upon what is written therein and direct Your Honours to consider the
6 I then move to ground 4, sentencing. And Your Honours have heard
7 today from the Prosecution that these sentences, and in particular the
8 sentence against Mr. Coric, were manifestly insufficient or inadequate.
9 I have recorded down at least four times when that was said. Temporary
10 transcript page 26, 27, 31, and 32.
11 Your Honours, Mr. Coric received a 16-year sentence. In
12 paragraph 137 to 140 of our response brief, we have pointed out that this
13 sentence is indeed in excess of the maximum sentence that was available
14 to be issued under the existing SFRY and SRBiH law at the time of the
15 alleged offences that formed the conviction. Thus, it is inappropriate
16 to call such a sentence "manifestly insufficient."
17 And I know although the Tribunal has decided that it is not bound
18 by the SFRY sentencing provisions, we would draw Your Honours' attention
19 to international law and the principle of nullum crimen sine lege, nulla
20 poena sine lege. The law in force at the time of the commission of the
21 crimes alleged was the 1976 Criminal Code which remained authoritative in
22 BiH until after the year 2000. It dictated that war crimes were to be
23 punished by imprisonment that falls within five to 15 years or by the
24 death penalty for most crimes, but the death penalty was abolished and
25 substituted by the possibility to impose a 20-year term. You can see
1 this from Articles 38, 142 and 37 of the relevant law.
2 The prohibition on retroactivity inherently implies a prohibition
3 on the retroactive application of the lex gravior, i.e., the more severe
4 penalty. Consequently, it is unlawful to impose a heavier penalty which
5 did not exist at the material time of the commission of the crimes and
6 the lesser sentence should be applied as per the favor libertatis
7 principle. Now, Your Honours, that's not just a submission of the
8 Defence. That is a holding of the European Court of Human Rights in
9 Maktouf and Damjanovic v. BiH, page 11. The principle of legality and
10 its corollary nulla poena sine lege inherently imply a prohibition on the
11 application of a more stringent penal code than that which existed at the
12 time of commission. We submit that the prohibition on retroactivity is
13 part of customary international law and a preemptory norm of
14 international law permitting no derogations. That's what the European of
15 Court of Human Rights in Maktouf and Damjanovic v BiH said at page 46.
16 So thus in dealing with the same issue --
17 JUDGE AGIUS: You have four minutes left, Mr. Ivetic.
18 MR. IVETIC: Thank you.
19 In dealing with the same issue, an application of the 2003 BiH
20 Criminal Code instead of the 1976 SFRY one, the European Court of Human
21 Rights found that it was a violation to apply the newer law which had
22 more stringent sentences than the prior law. Under such a backdrop, this
23 sentence against Mr. Coric cannot be found manifestly inadequate. For
24 this reason alone we would ask that Your Honours should not increase the
25 sentence but should lower the same. But we have also addressed other
1 arguments in our response brief which I will not take the time to go
2 through in detail but we believe each of them calls for a reduction in
3 sentence or indeed no sentence, not an increase, irrespective of whether
4 you accept the argument and holding of the European Court of Human
6 Today Madam Prosecutor mentioned several other ICTY cases. We
7 have already dealt with those in paragraphs 129 through 133 of our
8 response and stand on those submissions. We also join in the submissions
9 made today by Mr. Ellis of the Stojic Defence as to sentencing and will
10 not repeat the same.
11 We saw a very emotive video today. And war, unfortunately, leads
12 to victims and it leads to emotions, and we believe that Your Honours
13 should view the law, view the facts absent emotion and should judge based
14 upon the evidence that we believe shows that Mr. Coric, from his
15 position, tried to act as an honourable police enforcement official,
16 first at the military police administration and later at the civilian
17 MUP, and he tried to prevent crimes and bring perpetrators to justice by
18 way of filing criminal reports and taking other steps. And, therefore,
19 we reject the Prosecution's appeal that he should be convicted and that
20 his sentence should be further increased.
21 Thank you, Your Honours. I hope that I have stayed within my
23 JUDGE AGIUS: You did, Mr. Ivetic, and I thank you.
24 It is now the turn of the Defence team of Mr. Pusic. Are you
25 comfortable there, Mr. Sahota, or do you wish to come in front?
1 MR. SAHOTA: [Microphone not activated]
2 JUDGE AGIUS: All right, okay. Go ahead then. You have
3 30 minutes starting from now.
4 MR. SAHOTA: Your Honour, I intend now to address you on the
5 aspects of the Prosecution's appeal which directly impinge and are
6 relevant to my client Mr. Pusic. As we tried yesterday, we will take the
7 same approach. We will endeavor to accept points made by the Prosecution
8 where that's appropriate, we will endeavour to adopt submissions made by
9 other parties where that is appropriate.
10 The theme of our submissions yesterday was that Mr. Pusic was not
11 a high-level official and was a -- one of the accused that should be
12 treated differently. And one way we say that point is reinforced in
13 these appeal proceedings is that he is the only defendant who was not
14 convicted of JCE 3, and it follows that he is the only defendant for
15 which the Prosecution say the Trial Chamber's decision should be reversed
16 and his acquittals reversed.
17 Your Honours, I'll start by addressing with you on ground 1 of
18 the Prosecution's appeal brief. Very briefly, I would touch on the
19 propositions made as to the correct mens rea standard for JCE 3. In
20 short, we say that the position adopted by the Prosecution is erroneous.
21 We're not going to rehearse the points made earlier today by the Stojic
22 Defence. We will simply say that the test of foreseeability that this
23 Chamber should adopt and the Trial Chamber should have implemented, did
24 implement, we say, involves a subjective element. The Court has to
25 consider the possibility that the crime could have been committed as
1 sufficiently substantial so as to be foreseeable to the accused based on
2 the information available to him.
3 Your Honours, two points arise from that statement of the law.
4 Firstly, as articulated by the Stojic Defence earlier today, the
5 threshold is not so low as just to trigger criminal liability on the
6 basis that the accused should have seen a certain event was possible.
7 The second point that arises is that the foreseeability test should be
8 individually tailored to the accused. There are individually specific
9 factors that should be considered, including, and not just limited to,
10 the location of the accused at any point during the time on the
11 indictment. Your Honours, we intend to apply that individual --
12 individually tailored, specific foreseeability test to the evidence that
13 is cited by the Prosecution as, in their opinion, establishing
14 Mr. Pusic's guilt for deviatory JCE 3 crimes.
15 Your Honours, at this juncture I would also ask you to note what
16 is also accepted as the law on JCE 3, that depending on the information
17 available to accused, what may be foreseeable to one accused as a member
18 of the JCE may not be foreseeable to another. Applying that -- the
19 correct test, we say there is nothing wrong with the Trial Chamber's
20 findings. We say that the fact that Mr. Pusic was acquitted of all JCE 3
21 crimes should not be interfered with.
22 Your Honours, this morning you heard the Prosecution make
23 reference to 33 individual JCE 3 findings where the Prosecution's
24 position is that the Trial Chamber failed to provide a reasoned opinion.
25 I will refer to these as the remaining crimes and they're the crimes
1 which are addressed by the Prosecution in their appeal brief at pages 112
2 to 116. We say what explains the Trial Chamber's decision to acquit
3 Mr. Pusic of all these JCE 3 crimes is the paucity of evidence linking
4 him to these events. The Chamber made very limited findings, often it
5 made no findings at all, in relation to Mr. Pusic's responsibility for
6 these matters because there was no evidence connecting him to these
7 events. They certainly didn't find any evidence of any link between
8 Mr. Pusic and the perpetrators of these 33 JCE 3 crimes.
9 Your Honours, nonetheless, it's the position of the Prosecution
10 that Mr. Pusic should be liable under the JCE 3 theory for these
11 deviatory acts, these individual wayward actions outside the shared
12 intent. Your Honours, I would ask the Appeals Chamber to reflect on
13 whether that can be right as a proposition of facts applied to the law.
14 When you have heard what we've said about Mr. Pusic's role, he's
15 different, when you've heard what we've said about Mr. Pusic's powers and
16 the inconclusive evidence as to the extent of those powers, is it really
17 correct that despite there being any evidence linking him to the
18 perpetrators of these crimes in most of these 33 different instances,
19 that those crimes should have been foreseeable to him? Is this a finding
20 that can properly be made to the criminal standard beyond a reasonable
22 Your Honours, I'll turn now briefly to other crimes which are
23 more specifically addressed by the Prosecution at subground 1A(ii)
24 and (iii), pages 110 to 111 of the Prosecution's appeal brief. In these
25 instances there are slightly more detailed factual findings that the
1 Prosecution is in a position to address. When we examine these specific
2 factual findings, we say that the Appeals Chamber should decide that the
3 Trial Chamber rightly held that they did not warrant a conviction under
4 JCE 3.
5 Turning, first of all, to the Prosecution's appeal concerning the
6 crimes that led to the destruction of the mosques in Sovici and Doljani,
7 page 110 of their appeal brief, applying the individually tailored
8 foreseeability test, noting that the offences in question took place in
9 the same month the Chamber found that Mr. Pusic joined the JCE. We're
10 talking about April 1993. Noting that the evidence that is cited by the
11 OTP merely shows that Mr. Pusic learned of the destruction of the mosques
12 ex post facto after the event. After the event. Your Honours, that, we
13 would suggest, is not on its own or taken with other evidence of context
14 sufficient for any court to decide that that crime would have been
15 foreseeable to him.
16 Moving on to the Prosecution's submissions concerning Vojno.
17 This is ground 1A(ii), paragraphs 250 to -1 of the Prosecution's appeal
18 brief. The Prosecution's position is that Mr. Pusic should be convicted
19 applying JCE 3 liability of the killing of a detainee at the Vojno
20 detention centre. They similarly rely on the fact that he knew about
21 this killing, but the position is that he only learnt of this fatality
22 many months after the event. Your Honours, we say that whether you look
23 at that evidence on its own or if you look at it taking into account
24 globally what the Prosecution say about his role, what the findings are
25 on JCE 1, it does not justify a finding that that particular fatality
1 would have been foreseeable to him applying the individually tailored
2 foreseeability test.
3 Your Honours, in respect of both these incidents, the Prosecution
4 place great emphasis on the general evidence of Mr. Pusic's knowledge,
5 his role, his powers, all the facts related to his conviction under JCE
6 1, and there are large tracts from the Trial Chamber's decision that are
7 cited in the reasoning provided by the Prosecution. Your Honours, what
8 they ask is that you should make a specific finding that these crimes
9 were foreseeable to Mr. Pusic based largely on general evidence that
10 these crimes were foreseeable. Your Honours, in summary, our position is
11 that there is an insufficient basis, an insufficient basis in logic and
12 an insufficient basis in law upon which this Chamber should impute
13 criminal responsibility applying JCE 3 to Mr. Pusic for these extended
14 and deviatory crimes.
15 We say that what the Prosecution is effectively inviting you to
16 do is to adopt what my learned friend for Mr. Stojic called this morning
17 an open-ended foreseeability test. What they are asking you to do is to
18 apply too low a threshold for finding intent. If you choose to adopt
19 this course of action what in effect will be happening is that the
20 Chamber will be casting the net so wide insofar as determining liability
21 for deviatory crimes that JCE theory as applied in this case would
22 achieve the opposite effect of what was intended by the Tadic Appeal
23 Chamber. Your Honours, I'll refer you to a quite famous quote from the
24 Tadic appeal judgement, I'm sure you're familiar with it. I'm sure it's
25 been rehearsed before you on many occasions. Paragraph 428:
1 "... joint criminal enterprise is not an open-ended concept that
2 permits convictions based on guilt by association."
3 Your Honours, in regard to this specific limb of their appeal,
4 ground 1, we say the Prosecution have failed to eliminate reasonable
5 doubt that these deviatory crimes were foreseeable to Mr. Pusic, a
6 low-ranking HVO official, which is all the evidence shows.
7 I'm going to conclude very quickly by briefly addressing you on
8 ground 4. Your Honours, the Prosecution asked you to enhance the
9 sentence that was imposed by the Trial Chamber of ten years imprisonment.
10 They do not -- and I adopt the submissions of the Stojic Defence, I think
11 what was said this morning applies equally to Mr. Pusic. We do not
12 accept that they have failed to identify any material error on the part
13 of the Chamber in the approach that was adopted when to came to
14 determining sentence. We also adopt what was said about the Trial
15 Chamber's -- the Prosecution's failure to demonstrate that the sentence
16 imposed is manifestly unfair or plainly unjust and meets the criteria set
17 out in the Galic appeals judgement. What a reading of the Prosecution
18 appeal brief really demonstrates is their unhappiness and discontent at
19 the sentences imposed in general.
20 Your Honours, the Prosecution asked that Mr. Pusic's sentence be
21 enhanced because they claim that the sentence does not reflect his degree
22 of participation in the JCE. You heard yesterday what they had to say.
23 They claimed that he a key role in detention centres. They claim that he
24 had a key role in releases and evacuations of prisoners despite the fact,
25 we say, that there was evidence adduced that was ignored in the
1 Trial Chamber's decision that these orders were made by others higher up
2 the food-chain and also that these evacuations and releases often took
3 place with the involvement of organisations such as the ECMM and the
5 Your Honours, I will conclude by saying this. The Prosecution
6 asked for a sentence of 20 years to be substituted for the sentence
7 imposed by the Trial Chamber. Our simple reply is this, that this would
8 be wholly and unjustifiably disproportionate in the circumstances based
9 on the evidence that is before you and is referred to in detail in the
10 Trial Chamber's decision.
11 For these reasons, Your Honours, we ask that the Appeals Chamber
12 dismisses the arguments advanced in the Prosecution's appeal insofar as
13 they impact on Mr. Pusic.
14 Thank you.
15 JUDGE AGIUS: Thank you, Mr. Sahota.
16 That brings us to the Prosecution. You have 30 minutes,
17 Ms. Baig.
18 MS. BAIG: Good afternoon, Your Honours.
19 JUDGE AGIUS: Good afternoon.
20 MS. BAIG: Just for the record, I would like to mention that we
21 have been joined by an additional colleague, Ms. Sarah Houlihan.
22 In his arguments this morning, counsel for Mr. Stojic falls into
23 the same trap as the Trial Chamber by favouring location-specific factors
24 at the expense of factors that show that Stojic was well aware of the
25 nature and scale of the common criminal purpose. Stojic's foresight of
1 JCE 3 crimes does not depend on any municipality-specific factors that
2 the Defence have alluded to this morning. This argument is supported
3 neither by the facts nor the law. The law is clear that an accused's
4 foresight of possible JCE 3 crimes depends on the totality of the
5 circumstances surrounding the implementation of the common purpose. And
6 the accused's participation in it. And that's Sainovic appeals
7 judgement. It does not support a compartmentalised location-specific
8 approach. None of the factors set out in the prior jurisprudence of this
9 Tribunal, none of those indicators are location specific. None require
10 the ability to predict where and when the JCE 3 crime might occur. And
11 on the facts, the Defence has not pointed to anything that would support
12 assessing Stojic or any of the other respondents' ability to foresee JCE
13 3 crimes based only on their knowledge and involvement in a specific
14 municipality in question. To the contrary, Your Honours. Each of the
15 respondents shared a common purpose to commit a consistent pattern of
16 crimes across Herceg-Bosna in order to render this territory ethnically
17 homogeneous. And each of them played a role in the JCE that related to
18 its implementation across Herceg-Bosna territory.
19 Stojic, I would remind you, was the head of the Defence
20 Department for the Herceg-Bosna government. And from this senior
21 position, he was found to have played a key role in implementing the
22 common criminal purpose throughout Herceg-Bosna territory. For Stojic,
23 just as for the other respondents in light of the central roles that they
24 played, it would make no sense to assess their ability to foresee the
25 possible commission of JCE 3 crimes based only on their knowledge and
1 involvement of crimes in a particular municipality where the crimes
3 Counsel also falls into the trap of focusing on actual knowledge
4 of past crimes which is not required for joint criminal enterprise 3
5 liability. But where actual knowledge or notice does exist as it does in
6 many instances in this case, it is certainly relevant.
7 And there were reports that were personally addressed to Stojic.
8 And to give you just one more example in addition to Siljeg's report,
9 Exhibit P2770. And you heard about this report last week. It was sent
10 to Stojic on 14 June 1993. It contained information about rapes,
11 forcible moves into apartments, beatings, and "indications of new murders
12 of civilians" that accompanied eviction operations in West Mostar.
13 That's notice before all but two of the JCE 3 murder incidents that the
14 Prosecution has appealed. It is information about rapes prior to any of
15 the incidents of sexual violence that the Prosecution has appealed. And
16 that's information about theft before all but one of the JCE 3 incidents
17 that the Prosecution has appealed.
18 With regard to a few matters raised by the Petkovic Defence. In
19 relation to the number of Dretelj detainees for my argument on ground 2,
20 the Defence is correct: In ground 2, the Prosecution is requesting that
21 Petkovic be convicted for the murder and wilful killing of six rather
22 than four detainees at Dretelj prison.
23 And with regard to the thefts in Stupni Do. The Defence's list
24 of measures taken in response to thefts and other crimes in Stupni Do
25 ignores how Petkovic covered up these crimes by instructing Rajic to
1 conduct a sham investigation, as Mr. Schneider discussed last week. Nor
2 could Petkovic rely on others to take measures to address these crimes,
3 as the Defence has argued today, given his awareness that Boban and
4 others were also trying to protect Rajic.
5 As the Appeals Chamber has held in other cases, a superior cannot
6 rely on a particular measure if he know it is likely to trigger a sham
7 investigation. And I'd refer you to Boskoski appeals judgement
8 paragraph 234. And that's exactly what happened here.
9 And just to clarify one further point about Petkovic's authority
10 at the time he received the ICRC letter, P7636. At that time Petkovic
11 was the deputy chief of the HVO Main Staff, and as Mr. Schneider
12 explained last week, at that time he retained his effective control over
13 HVO forces. Exhibit 4D1614 cited by the Defence today does not undermine
14 the Chamber's findings on this point.
15 With regard to submissions on behalf of Mr. Coric. First
16 concerning the convictions in relation to the Kaplan murder and the
17 crimes at that time in the same village, the two documents that Coric's
18 Defence has referred to relate to criminal proceedings in 1997 and 2004.
19 The Chamber addressed the issue of the filing of criminal reports at
20 volume 1, paragraphs 918 and 919, and volume 4, paragraphs 880 and 882,
21 and properly found that Coric failed to address crimes including eviction
22 and detention-related crimes.
23 Your Honours, what is important here is that the fact that
24 there's an investigation and potentially even criminal responsibility
25 later does not affect -- does not tell us anything about a particular
1 accused's ability to foresee that the crimes would have occurred in the
2 first place. So this sort of action taken long after the fact tells us
3 nothing about the foreseeability of the crimes.
4 And at temporary transcript page 85, in relation to Heliodrom,
5 Coric's counsel has again claimed that "the Chamber even found Coric was
6 not informed of mistreatment and had no reason to believe detainees were
8 Again, the paragraph that he cites, volume 4, paragraph 955,
9 finds the opposite. And I quote: "Valentin Coric had reason to believe
10 that the Heliodrom detainees were being mistreated during detention."
11 That's clear in both the English and the French versions of the
13 Finally, Coric has claimed that he took adequate steps upon
14 learning of the killings in Dretelj in 1993. We've set out our response
15 for this, for example, in the Prosecution's response brief, at
16 paragraph 183. In particular, where he claims to have raised this issue
17 at the 19 July 1993 government session. None of the witnesses who
18 testified about this session mentioned Coric being there and the minutes
19 contain nothing to indicate that he was there. That's P3560.
20 For the more general argument, I would point you to Prosecution's
21 reply, paragraph 129 and 131.
22 Concerning the lex mitior point as the Appeals Chamber held in
23 Dragan Nikolic sentencing appeals judgement at paragraph 81, the
24 principle of lex mitior only applies if a law that binds the
25 international Tribunal is subsequently changed to a more favourable law
1 by which the international Tribunal is also obliged to abide.
2 [Prosecution counsel confer]
3 MS. BAIG: Your Honours, a number of respondents have sought to
4 draw comparisons between our appeal and their respective appeals and
5 claimed that our appeals arguments support their appeals arguments.
6 There is no meaningful parallel between our grounds of appeal and the
7 Defence appeals and our arguments do not support theirs.
8 In terms of compartmentalisation, we've argued that the Chamber
9 erred in law in one discrete area of analysis on JCE 3 liability. We
10 pointed out that the Chamber did not take into consideration plainly
11 relevant findings and evidence because it erroneously considered that
12 these findings and evidence were legally irrelevant to its analysis.
13 There is no analogous Defence appeal. The Prosecution's arguments on
14 compartmentalisation focus on the specific issue of the Chamber's overly
15 restrictive application of the JCE 3 standard. None of the respondents
16 have pointed to a legal error of this nature.
17 Likewise, where we argue that the Chamber made errors of
18 omission, we are pointing to areas where the Chamber neglected to conduct
19 any adjudication, where responsibility for crimes was left wholly
20 unadjudicated or, in the case of ground 3, where the Chamber omitted to
21 enter convictions due to oversight in its cumulative conviction analysis.
22 There is no corresponding Defence argument, and here again our grounds of
23 appeal do not support the Defence appeal arguments. The omissions in the
24 judgement we've pointed to bear no relationship to the Defence claims.
25 The gaps in the adjudication bear no relationship, for example, to
1 Defence arguments that a tangential issue was not discussed to the extent
2 that they would have preferred or that isolated pieces of evidence were
3 not explicitly discussed.
4 In making its factual findings on the existence of the joint
5 criminal enterprise and the intent and the contributions of the
6 respondents, the Chamber considered all of the evidence, including the
7 Defence evidence and the Defence witnesses, making numerous express
8 findings on the credibility and probative value of the parties' evidence.
9 As was clear in the Defence submissions, they disagree with the
10 Trial Chamber's findings, but those findings are reasonable and based on
11 a thorough review of the evidence.
12 Your Honours, if you'll just give me a moment to consult.
13 [Prosecution counsel confer]
14 MS. BAIG: Your Honours, before I conclude, I have one small
15 housekeeping matter that I would like to address in closed session.
16 JUDGE AGIUS: Yes, let's go in closed session for a while,
18 MS. BAIG: I apologise, private session.
19 JUDGE AGIUS: Private session for a while, yes.
20 [Private session]
20 [Open session]
21 JUDGE AGIUS: We are in open session, Ms. Baig.
22 MS. BAIG: Thank you, Mr. President. The Trial Chamber's
23 findings fell short of recognizing the full scope of the appellants'
24 criminal responsibility. In relation to JCE 3 crimes, the Trial Chamber
25 omitted to enter appropriate convictions for a large number of crimes.
1 And it failed to fully reflect the criminal culpability of the
2 respondents in relation to their superior responsibility and for wanton
3 destruction. The Prosecution requests that these errors be corrected and
4 we ask the Appeals Chamber to ensure that the respondents' full
5 culpability for these grave crimes is properly reflected in the
6 judgements and sentence.
7 Thank you.
8 JUDGE AGIUS: Yes, Ms. Baig, before we move on, Judge Moloto
9 would like to put a question to you.
10 JUDGE MOLOTO: Madam Baig, Mr. Sahota this afternoon submitted
11 that the foreseeability test for JCE 3 crimes should be subjective. Do
12 you have any comment?
13 MS. BAIG: Your Honours, the JCE 3 test has both a subjective and
14 an objective element. Objectively, the crime must be one that is linked
15 to the execution of the common criminal purpose; and subjectively, the
16 accused must -- the accused has to willingly take the risk and the crime
17 must be subjectively foreseeable to that particular accused.
18 JUDGE MOLOTO: Thank you.
19 [Trial Chamber confers]
20 JUDGE AGIUS: Thank you very much. That, I understand, concludes
21 your submissions in reply.
22 Just for the record, when Mr. Ivetic was addressing us, page 93
23 of the transcript, between lines 10 and 17, he referred to paragraph and
24 quoted from paragraph 428 of the -- Mr. Sahota, not Mr. Ivetic, from
25 paragraph 428 of the Tadic appeal. In reality I am correcting that.
1 It's from the Brdjanin appeal judgement.
2 MR. SAHOTA: Thank you, Your Honour. I'll stand corrected if
3 that is the mistake --
4 JUDGE AGIUS: All right. No, no, it is, it is like that.
5 MR. SAHOTA: It's a famous quote, though, as I said.
6 JUDGE AGIUS: Okay, but it is the Brdjanin. I know that quite
7 well because it was an appeal from my own judgement so ... thank you.
8 Now we have arrived at the last stage of today's proceedings
9 during which we are allowing ten minutes to each of the appellants to
10 address the Appeals Chamber if they so desire.
11 I'll start with you, Mr. Pusic. Do you wish to address the
12 Appeals Chamber? And you have ten minutes.
13 THE APPELLANT PRLIC: Mr. Pusic is not here.
14 JUDGE AGIUS: Not Pusic. Mr. Prlic, sorry.
15 THE APPELLANT PRLIC: Mr. President, honourable member of
16 Chamber, [Interpretation] I'll speak in may own language.
17 Instead of the usual words on such occasions, I shall read a part
18 of the text called: We need people of good will, clean hands and pure
19 honour. It's part of the Ramadan rites pushed in a Muslim magazine in
20 1994: "Considering and emphasizing how war brings misfortune on all the
21 citizens of Bosnia-Herzegovina, Muslims, Croats and Serbs alike, Prlic
22 stressed how equal treatment should be ensured for all the citizens.
23 However, to this day, we are not satisfied but we are trying hard to
24 ensure exercise of human rights for everybody. In his own name, and on
25 behalf of the government of Herceg-Bosna, I owe everyone a big apology,
1 said Prlic."
2 What I said at that time during the war I can only repeat now. I
3 am deeply aware of all the victims and all the sacrifices brought upon
4 them by the war. I have spent the war time in probably the hardest
5 places to be then, Mostar and Sarajevo. I know what it means to live
6 without power or water, to be occupied within a city exposed to daily
7 shelling and sniping, left at the mercy of the enemy side and the lack of
8 care from the international community. I have been always aware of
9 everybody's misfortunes even though we were sometimes on different sides.
10 I spent entire years in that area, from 1989 to 2003.
11 2013 was a crucial year for me. I am aware that judicial truth
12 may not always correspond to the real truth. The two can diverge. But
13 for facts to be contrary to the judicial truth even in this post-truth
14 era is too much. I have been unnerved by this appeal hearing more than
15 by the entire trial and for that I apologise.
16 In the judgement, it seems to transpire that my greatest mistake
17 was not to have left, to have stayed. Maybe it was a mistake. Some
18 people, mainly foreigners, who have changed their minds meanwhile,
19 advised me to leave. But if I had done that, I would have felt guilty my
20 whole life because I would have done nothing to improve the situation. I
21 doubt it that my departure would have benefitted anyone.
22 I remained working there as co-president and then acting
23 president -- acting prime minister of the government of
24 Bosnia-Herzegovina from 1990 and I was one of the first persons who said
25 that it could be an independent state. If you look at the minutes of
1 government meetings during the war and after the war, you can see that
2 there was no interruption in my work, no break from my previous efforts.
3 We had been trying to build a joint state, not a mono-ethnic state, with
4 the support of the international community and in agreement with them.
5 This is confirmed by more than 250 presidential transcripts that we have
6 shown during the trial and in this hearing. Some of them were excerpted
7 in the judgement and they testified to the fact that there was no common
8 criminal purpose. It was just an error in the trial judgement. It was
9 an erroneous finding.
10 After the war, I continued working on building that country all
11 over again, from 1994, first as defence minister, and then as prime
12 minister I represented our country in the outside world for more than
13 five years. And here, the judgement says that I worked against that
14 country and even occupied it for a while.
15 I am aware that the families of victims want someone to be
16 punished, and in this last war we know, all of us, we know more or less
17 who shot at whom. As I said in my interview to the Prosecution in 2001
18 and as the President Agius said recently, many culprits are still walking
19 our streets freely. I helped and co-operated from the establishment of
20 this Tribunal and continued that co-operation even though a commission
21 was never established. But we have provided a lot of documents and a lot
22 of support, and I cannot resist citing one of them, 1D02243.
23 I participated in many international conferences, and I was
24 representing one of the countries who signed the initial agreement
25 establishing this Tribunal.
1 It's been 13 years since I arrived at the Detention Unit and
2 awaiting judgement. I want to say that the level of injustice in this
3 trial was insufferable. The greatest part of the time I didn't even wish
4 to attend a trial of that kind. At one point I asked I asked the
5 Prosecution to take an oath that they would be telling the truth because
6 they are the only ones who have a mission in this courtroom. This trial
7 is the dark side of international justice that will definitely slow down
8 its development but must not call it into question. If these 13 years
9 were a price to pay for that, then let it be.
10 In any case, these 13 years no one can give back to me.
11 JUDGE AGIUS: Certainly not.
12 MS. TOMASEGOVIC-TOMIC: [Interpretation] May I ask your leave to
13 just absent myself for two minutes. I have a medical problem. I need to
14 take some pills.
15 JUDGE AGIUS: Thank you.
16 It's I understand, Mr. Stojic, that you have decided not to make
17 use of the allowance that -- okay. So it's ...
18 THE APPELLANT STOJIC: [Interpretation] Good afternoon,
19 Your Honours. I would like to say something after all. If you permit.
20 Just for two or three minutes.
21 JUDGE AGIUS: Yes, go ahead, please.
22 THE APPELLANT STOJIC: [Interpretation] Good afternoon,
23 Your Honours. Good afternoon to everyone in and around the courtroom. I
24 absolutely support the submissions of my team of attorneys and I would
25 like to thank them for all their work for these many years during these
1 proceedings and I've always had wonderful co-operation from them. I
2 would like to thank them for that.
5 I would like to thank the staff for the Detention Unit. Perhaps
6 it is a little bit strange for me to being say this from my position, but
7 I would still like to thank them on a humane and professional attitude
8 towards me throughout the time that I have spent in The Hague.
9 Your Honours, I voluntarily came to The Hague. I believe in this
10 institution. I believe in this Tribunal. And I believe in you,
11 Your Honours, and I am sure that you will reach a just decision in the
12 end. I am very sorry for all the victims of the war, Muslim ones, Serb
13 ones, and in particular, for the Muslim ones, because they were the
14 subject of these proceedings.
15 Thank you very much, Your Honours. That is all that I wish to
17 JUDGE AGIUS: Thank you, Mr. Stojic.
18 Mr. Praljak. Ten minutes.
19 THE APPELLANT PRALJAK: [Interpretation] Good afternoon,
20 Your Honours. Last year, the German minister of the interior registered
21 3700 attacks, including arson, against immigrants received by that state.
22 On average it is ten per day. Dozens upon dozens of powerful state and
23 societal attributes of this great civilised, rich and legally developed
24 country failed to prevent all that. Social psychologists and
25 sociologists have foreseen such events. The foreseeability of the
1 figures is more difficult than to foresee an individual --
2 THE INTERPRETER: Interpreter's correction.
3 THE APPELLANT PRALJAK: [Interpretation] -- but to foresee an
4 individual event is impossible. The number of perpetrators who were
5 detected is minimal.
6 In New Orleans, Hurricane Katrina resulted in hundreds of rapes,
7 burglaries and other crimes committed. The powerful attributes of this
8 powerful country failed to prevent such crimes and the number of
9 perpetrators that was detected was minimal. We know that even small
10 shifts in the social structure may bring about great numbers of
11 individuals who become criminally active.
12 In 1992, in Bosnia and Herzegovina, in only a few days, following
13 the Serb aggression, the entire state structure caved in. All state
14 functions collapsed. All the attributes of the state ceased to exist and
15 the state of singularity gained a foothold. One can act in two ways
16 under such circumstances. You can try and keep trying to reconstruct
17 normal channels of authority and the life of a community. It is a
18 difficult task with no promises to be made and excruciatingly slow. The
19 number of killed, wounded, expelled, the number of those who fled, the
20 failed attempts at peace conferences, the betrayal of the Muslim
21 politics, the aggression of the ABiH against Croats, the sheer duration
22 of that war, all of that made those efforts insignificant or devoid of
23 any value.
24 The other modus is acting as an example. I can say for myself
25 that I conducted myself in such a way that now looking back, 13 years
1 later, I still don't know what else I could have done or in what other
2 way. The problem with such type of action amidst chaos has a very small
3 temporal and geographical reach. The methodological error usually turned
4 wrong presumptions or wrong premises is a general occurrence among the
5 western political and social elite. The same goes for these proceedings.
6 Making equal the terms to want to or wish to to the concept of
7 power is something I cannot understand. How come this war was brought
8 about with such consequences if nobody wanted them? And if everybody
9 wanted to prevent them, why then are these power structures so helpless?
10 The degree of efficiency is something called command, control, and
11 communication within the NATO alliance. This concept could be applied to
12 the HVO only if we put the sign of equation between the HVO and the
13 concept of western armies. The sheer content of such terms is far too
14 apart to be compared in any significant element. Such wrong premises
15 make understanding the truth impossible.
16 The aggression by Bosnia and Herzegovina at the front line longer
17 than 2 00 kilometres with the forces of three entire corps, the
18 fierceness of their attacks on the HVO while I was in command placed me
19 and my soldiers at the very edge of our mental and psychological ability
20 and physical ability. Under such circumstances, commanding from the room
21 of a general is impossible. One needs to be in the field 20 hours a day.
22 You have to be with your soldiers, you have to command, you have to
23 motivate and fight alongside them. The amount of frustration among the
24 soldiers also came from the fact that they were attacked by their ally
25 and that everything that ally used in its attack came from the Croatian
1 side. Can it be scientifically foreseen that individuals will commit a
2 crime? Yes. But as to when, where and who is not.
3 In the spring of 1992 and subsequently, as a regular occurrence
4 all HVO members were acquainted with the rules of war. It was done in
5 co-operation with the ICRC. What could we have done to avoid all this?
6 As the Dr. Prlic said, we could have left. We could have surrendered to
7 the ABiH and to the VRS. We could have fled across the border to
8 Croatia, but that would not have reduced the amount of crime. When
9 western alliances fight against the soldiers of ISIS, then collateral
10 damage is unavoidable and it is all taking place. If one does not wish
11 to have collateral victims, do not attack. That's the alternative.
12 To end, in Mostar, the ABiH attacked the HVO. Not the other way
13 around. My participation and my actions during the war boiled down to
14 the Archimedes Praljak theory, if I may say so, and I've read my theorem
15 to the Trial Chamber on the 4th of May, 2009. It is at transcript
16 page 39481 and 39482 of the record. I stand by the validity of that
17 theorem. If ultimately Your Honours conclude that I am guilty, I do not
18 seek for any mitigating circumstances. My conscience is clear.
19 JUDGE AGIUS: Thank you, Mr. Praljak.
20 Mr. Petkovic.
21 THE APPELLANT PETKOVIC: [Interpretation] Your Honours, I was born
22 in Croatia. I was not born in Bosnia and Herzegovina, but it's the same
23 people. Had I -- I was an ex-officer in an ex-army of an ex-state, and I
24 lived for a while in Slovenia, Croatia, and I never lived in Bosnia.
25 I came to Bosnia and Herzegovina in early April 1992, when the
1 Croatian army was getting ready to liberate the southern part of its
2 territory. That part of Croatia is very narrow. Thus, all actions had
3 to be planned along the border of Bosnia and Herzegovina with the
4 knowledge and approval of Mr. Izetbegovic and the Bosnia-Herzegovina
5 authorities. The Croatian army at that time very closely co-operated
6 with the Croatian Defence Council and with some units of the B and H army
7 because they were protecting the left flank of the Croatian army that was
9 I was not in Bosnia during the war. From July 1991, I had
10 experience of war in Sibenik, in the Republic of Croatia, my home town.
11 Once I came to Bosnia-Herzegovina, I met Mr. Boban and dozens of people
12 who were trying to organise the Croatian Defence Council and put up
13 resistance to the Serb aggression. In view of my professional education
14 and experience, I believed it to be my professional and human duty to
15 help them. I planned, just like we all did, that all that would last for
16 just a few months. However, I remained there for more than two years.
17 Even in the most difficult period of our conflict with the armija
18 in late 1993 I remained in Bosnia and Herzegovina because for me it would
19 have been cowardly and dishonourable to leave my colleagues behind and my
20 soldiers. It would have been the easiest thing to leave, and in that
21 case, I probably would not even have been here today. Still I repeat
22 that for myself, as a professional officer, that would have been treason
23 and abandoning my colleagues and my people in times of trouble.
24 What I would like to tell you today are two things, just two
25 things. First, I really did want the HVO to be an Army of Croats and
1 Muslims and I was really happy about every new soldier. I never paid
2 attention to the ethnicity of any given soldier. In mid-1992, the HVO
3 liberated large swathes of Bosnia and Herzegovina together with certain
4 sections of the B and H army. That was an allied army or, better said,
5 we considered ourselves to be two components of one and the same army.
6 At least that is what I felt.
7 I would just like to mention that in our annex 8, you can see my
8 movements throughout that whole period. But let's take the 18th of
9 April and May. I spent those months, ten or 15 days of each of those
10 months at least, with Sefer Halilovic touring all places that there were
11 conflicts in the territory of Bosnia-Herzegovina. So during the two
12 months I spent more time with Halilovic than with my own commanders and
13 we tried to reach every single location.
14 Two, in all commands and contacts I always insisted that the army
15 treats civilians very carefully. When I say "civilians," I mean women,
16 children, and the elderly, which we do not consider to be able-bodied men
17 by law. I issued a series of commands that uncontrolled activities of
18 individuals and groups should be prevented, destruction of houses and
19 other property should be prevented, extremists should be punished,
20 civilian population should be protected in accordance international
21 rules. There are numerous documents that we -- that speak in favour of
23 I particularly warned that prisoners, civilians should be treated
24 humanely and afforded the proper protection. I said that civilians had
25 no active role in war and that for that reason they must not be the
1 objects of attack. This is not the occasion for me to point to those
2 documents, Your Honours, but I note that they are in our final submission
3 brief appeal and in the annexes.
4 From my perspective today, it seems to me that I have could acted
5 differently in certain situations. Perhaps I really should have done so.
6 What is certain and what I would not change today is my sincere wish for
7 Croats and Muslims together to defend their homes. Others in
8 Herceg-Bosna also wanted the same thing. That is why we built the HVO as
9 a defensive army. Each brigade comprised men who lived in that area,
10 regardless of whether they were Croats or Muslims. And it was normal for
11 us for Muslims to be the majority in some HVO units. Until June 1993, I
12 did not even believe that this could present a security problem for the
14 And just a few words to conclude. My Defence, Your Honours, has
15 shown that in 1993, I thought that it's better to negotiate for two years
16 than at that wage war for one day. I think that still today. I think
17 all other people think the same. To see the misfortune that a single
18 shell can inflict upon people is enough to see that war is not the means
19 to resolve problems. However, sooner or later all conflicts end at the
20 negotiating table. It is unfortunate that that is preceded by misfortune
21 and tragedy.
22 I would like to say that I sincerely regret each victim of war in
23 Bosnia and Herzegovina. I am particularly sad about the civilian victims
24 of war, and I hope that nothing like that would ever happen again in that
1 Your Honours, thank you for your attention.
2 MS. ALABURIC: If I may just correct the transcript.
3 JUDGE AGIUS: Yes.
4 MS. ALABURIC: Please, just avoid any misunderstand. Page 110,
5 line 21, the sentence is: "I was not in Bosnia during the war." And
6 actually General said: I was not in Bosnia at the beginning of the war.
7 JUDGE AGIUS: All right. Thank you for that clarification.
8 MS. ALABURIC: Thank you.
9 JUDGE AGIUS: Can we go -- before I ask you, Mr. Coric, can we go
10 into private session for a short while, please. I need to clarify
12 [Private session]
22 [Open session]
23 JUDGE AGIUS: Mr. Coric, you've got ten minutes.
24 THE REGISTRAR: We're now in open session, Your Honours.
25 THE APPELLANT CORIC: [Interpretation] Your Honours, from the
1 moment I was faced with very grave charges before this Court through 13
2 years of my Hague, I have always searched my soul for an answer: Did I
3 in the past war, consciously or unconsciously or in other way, do any
4 wrong to any person? I carefully listened to all the testimony and read
5 thousands and thousands of documents during the trial. I know there are
6 no faultless people. I know that we, members of
7 the HVO, are also not blameless, but I am convinced that I belong to the
8 overwhelming majority of HVO member who, with the best intentions,
9 honourably and with dignity, risking their lives, defended all the
10 innocent people and their homeland. I hope and I believe that the
11 dishonourable HVO members shall not and cannot tarnish the image created
12 by the vast majority of honourable and honest Croatian defenders.
13 Your Honour, by The Hague indictment some attempted to send a message to me
14 that in the past war I was on the wrong side and part of some criminal
15 enterprise. I would, therefore, like to recall that it is an indisputable
16 historical truth that the most responsible leaders of the Croatian top
17 political echelons, unlike the other parties in the BH, accepted all
18 the solutions and agreements proposed by the international community for
19 Bosnia and Herzegovina, beginning with the Cutileiro Plan through the
20 Vance-Owen Plan, the Washington, and finally the Dayton Peace Accords.
21 It is illogical and unjust that we should be blamed for those solutions
22 that were imposed on us; whereas those responsible are not even
23 mentioned, let alone held culpable.
24 Your Honours, the best indicators of the atrocities of war to
25 which we were exposed is the figure of those dead and wounded in the
1 ranks of the military police. Out of 2.000 of our members in 19 months
2 of war, when I was head of the military police administration, we lost
3 164 men and had 720 military policeman wounded. If you add to this all
4 the losses in the Ministry of Interior, especially members of the special
5 police and the military police, then the total number of policemen killed
6 is closer to 300 and the number of wounded is over 1.000.
7 Due to huge losses in personnel, we were forced to constantly
8 fill our ranks with new employees. That is why the segment of training new
9 members was a very important one among the tasks of the military police.
10 An integral part of the training was also instruction on Geneva
11 Conventions and international humanitarian law and the law on warfare.
12 Because of that approach and the enviable degree of professionalism
13 among our members, many human lives were saved and excellent performance
14 was achieved in combatting and prosecuting illegal activity by criminal
15 groups and individuals. Unfortunately, the fundamental tasks of the
16 military and the civilian police, due to the overwhelming conflict,
17 were frequently put on the back burner despite my continuous warnings.
18 Especially important was the criminal investigations department of our
19 police. In very difficult situations, members of that department
20 in cooperation with other members of the Military Police successfully
21 prevented, arrested and prosecuted offenders for numerous crimes
22 regardless of the army and the people to which the victims and the
23 perpetrators belonged. In that period of war, the Military Police
24 submitted over 2.000 criminal reports to the relevant prosecutor’s office.
25 Your Honours, I carried out my duties as head and minister
1 continuously both inside Herceg-Bosna and in post-Dayton governments of
2 the BH all the way up to 2002. All that time my activity and the
3 activities of my collaborators was always exposed to the public eye and
4 all our public appearances and pronouncements on notorious events were
5 timely, specific, and transparent. In those times, I never planned,
6 incited, ordered, covered up or in any other way participated in any
7 criminal activity. All my actions were directed to lawful and
8 professional action with the emphasis on prevention and combatting crime.
9 I first heard of a joint criminal enterprise from the indictment. I had
10 never been aware of any plan, intent or criminal purpose, nor did anyone
11 ever ask me or suggested to me that I should participate in any such thing.
12 Your Honours, in this courtroom, we have heard over 400 witnesses. Out
13 of all of them, I have not noticed a single professional or personal charge
14 against me. That is why I am surprised that the Prosecutor attempted
15 to present the commendations addressed to me and testimony of witnesses and
16 war-time documents as culpable facts regarding my war-time activities.
17 With all due respect, looking back through the years at all the means used
18 by the Prosecution of this Tribunal in this particular case and some other
19 cases , it is obvious that they have no understanding of the circumstances
20 that prevailed during the war in Bosnia-Herzegovina. The Prosecution cannot
21 or wishes not to distinguish what during the war was professionally and
22 humanely possible to do and what was impossible. They do not distinguish
23 between those who fought against ill-fortune of all kinds and working always
24 for the benefit of all from the individuals and groups who acted unlawfully
25 and committed crimes pursuing their personal interests and objectives.
1 In addition to that, the Prosecution used dirty methods and did not stop at
2 striking bargains in order to engage as its collaborators in The Hague
3 proceedings certain lawyers, certain suspicious security service operatives
4 and certain state politicians of the highest rank. These dishonourable
5 individuals, usually from the Croatian people, sold themselves by their false
6 testimony, secret cooperation with the Prosecution and by offering selected
7 war- time documents and forgeries. In this way, the Prosecution consciously
8 amnestied numerous war criminals while being perfectly aware that some of them
9 have committed war crimes, and by covering up criminal activity, they
10 protected criminals and before this Court and other courts in Bosnia and
11 Herzegovina, they shifted blame onto innocent people. And, finally, permit me
12 two more sentences. Your Honours, I am not a man without faults, nor are HVO
13 members people without faults, but if you have a real perspective of war time
14 events in Bosnia and Herzegovina and compared police indicators of success of
15 a police formation, you will be hard put to find a police unit that was more
16 successful, more professional, and more humane in carrying out its tasks...
17 JUDGE AGIUS: Please conclude.
18 THE APPELLANT CORIC: [Interpretation]...than the units of the Military Police
19 and members of the Ministry of the Interior of the Croatian Republic of
20 Herceg-Bosna. Regardless of your decision, no matter what it may be, I will
21 always be proud of the fact that during the Homeland War I carried out the
22 duties of the Chief of the Military Police, Minister of the Interior and
23 member of the Presidential Council of the Croatian Republic of Herceg-Bosna.
24 I most sincerely thank all those who have contributed in any way to my
25 war-time activities, and may God forgive all those who made my job more
1 difficult. And, finally, your Honours, I most sincerely regret each victim,
2 especially civilian victims and their suffering caused by this unfortunate
3 war. If I have done anyone any injustice or caused them misfortune during
4 the war, I sincerely beg their forgiveness. Thank you for your attention.
5 JUDGE AGIUS: Thank you, Mr. Coric. Counsel for Mr. Pusic,
6 I understand your client has chosen not to make a statement; correct?
7 MR. IBRISIMOVIC: [Interpretation] Your Honours, our client has decided
8 not to make a statement. His position is the same as the one he presented
9 in the courtroom in October 1996 when he apologised to all the victims
10 THE INTERPRETER: Interpreter's correction, 2006.
11 MR. IBRISIMOVIC: [Interpretation] And he is certain that this
12 Appeals Chamber is going to come to a just ruling.
13 JUDGE AGIUS: Thank you, Mr. Ibrisimovic. One moment. I need to consult.
14 [Trial Chamber and Legal Officer confer]
15 JUDGE AGIUS: Let's go into private session for a short moment, please.
16 [Private session]
24 [Open session].
25 THE REGISTRAR: We're back in open session, Your Honours.
1 JUDGE AGIUS: Yes, Mr. Stringer
2 MR. STRINGER: Thank you, Mr. President. And at the risk of
3 incurring your wrath, I would like to state for the record that the
4 Prosecution emphatically rejects the serious allegations that were made
5 by Mr. Coric in respect of buying evidence and whatnot. This is a new
6 charge. It's not been made before. And we reject it emphatically.
7 JUDGE AGIUS: Thank you. You're not surprising me. I was
8 expecting that.
9 This, ladies and gentlemen, this concludes the hearing of the
10 seven appeals in this case. I'd like to thank, first and foremost, the
11 parties, accused and counsel alike, for their work and their co-operation
12 with the Appeals Chamber.
13 I also wish to express my gratitude to the interpreters, the
14 court reporters, the IT section, and the audio-visual personnel, of
15 course, also the security officers, the Registry staff here in the
16 courtroom, and last, but certainly not least, our staff both inside and
17 outside the courtroom. I must also refer to all other staff members who
18 have been involved in facilitating the hearing during these past two
19 weeks. Thank you all for your very good work and for your assistance.
20 My colleagues and I will now enter the deliberative phase of the
21 appeal, and the Appeals Chamber will render its decision in due course
22 and by November at the latest.
23 The proceedings stand adjourned. Thank you.
24 --- Whereupon the hearing adjourned at 4.09 p.m.,
25 sine die.