1 Friday, 7 April 2006
2 [Sentencing Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 3.03 p.m.
6 JUDGE VAN DEN WYNGAERT: Good afternoon, ladies and gentlemen.
7 Can I ask the registrar to call the case, please.
8 THE REGISTRAR: Good afternoon, Your Honours. This is case number
9 IT-95-12, the Prosecutor versus Ivica Rajic.
10 JUDGE VAN DEN WYNGAERT: Thank you very much.
11 Mr. Rajic, can you understand me in a language that you can
12 understand? The microphone works? Thank you. You may sit down.
13 Can we have the appearances now for the sake of the record. First
14 the Prosecution.
15 MR. SCOTT: Good afternoon, Your Honours. My name is Kenneth
16 Scott, for the Prosecution. I am joined today by Ms. Josee D'Aoust, and
17 also our case manager, Ms. Skye Winner.
18 JUDGE VAN DEN WYNGAERT: Thank you very much.
19 The Defence, please.
20 MS. KOSTA: [Interpretation] Good afternoon, Your Honours. My name
21 is Doris Kosta, and I am Defence counsel for Ivica Rajic.
22 JUDGE VAN DEN WYNGAERT: Before we start the proceeding, I want to
23 express the feeling of the Chamber of satisfaction that the matters that
24 were raised at the previous hearing seems to have been resolved in a
25 satisfactory way, and I'm very pleased to see Mr. Rajic here present at
1 the hearing today.
2 Let me recall the ordering to the proceedings that has been agreed
3 upon with the parties. So we will have first the submissions of the
4 Prosecution, which will last for 50 minutes, more or less, which then will
5 be followed by questions by the Judges. The same applies to the Defence:
6 We will have 50 minutes for the Defence, also followed by questions by the
7 Judges. Then we will have a statement by Mr. Rajic, also followed by
8 questions. And the session will be ended with closing arguments by the
9 Prosecution and the Defence. We will have a short break after the
10 Prosecution's submissions. I hope this is still in agreement with all of
12 Let me start by first summarising what this case is about. The
13 case concerns the attacks of 22/23 October 1993, upon the villages of
14 Stupni Do and Bogos Hill in Vares municipality which caused the deaths of
15 several Bosnian Muslim men, women, elderly, and children. The case also
16 concerns the round-up of a large number of Bosnian Muslims in Vares town
17 and their subsequent inhumane treatment in two schools; the Ivan Goran
18 Kovacic school and the Vladimir Nazor school. As a commander of the 2nd
19 Operational Group, based in Kiseljak, Mr. Rajic ordered these attacks and
20 the rounding up of civilians, knowing the substantial likelihood of the
21 criminal consequences of the orders.
22 In October, on the 26th of October, Mr. Rajic pleaded guilty to
23 counts 1, 3, 7, and 9 of the amended indictment, each of these counts
24 being a grave breach of the Geneva Conventions of 1949 and each punishable
25 under Article 2 of the Tribunal's Statute. His guilty plea was based on a
1 plea agreement entered into on the 25th of October with the Prosecutor, to
2 which the factual basis of the plea is appended. And the next day, on the
3 26th of October, the Trial Chamber entered a finding of guilt for those
4 four counts.
5 The Prosecution indicated that it would ask the remaining counts
6 in the amended indictment to be dismissed at the sentencing hearing. I
7 take it that this will happen in the course of today's hearing.
8 Following the hearing of the 26th of October there has been an
9 additional clarification decision on the convictions entered following
10 some confusion that may have been raised by the way in which the plea
11 agreement was formulated. So following that clarification decision, it is
12 now very clear that the conviction that was entered was a conviction under
13 Article 7(1) of the Statute and not under Article 7(3) of the Statute.
14 Important in the chronology of this case is also that in July of
15 last year the Prosecutor filed a motion before the Referral Bench to have
16 the amended indictment referred to Bosnia and Herzegovina under Rule 11
17 bis of the Rules of Procedure and Evidence, and Mr. Rajic opposed this
18 referral. On 10 November of last year, which was after the guilty plea,
19 on 10 November of last year the Prosecution informed the Referral Bench of
20 its intention to withdraw the motion for referral upon completion of the
21 sentencing procedure.
22 What we are doing today in this hearing, or the purposes of
23 today's hearing is the sentencing. So we are hearing the oral
24 presentation of the evidence on both sides. We are not discussing the
25 facts, so this is something that we leave behind us because of the plea
1 agreement and the conviction that has been entered already on that basis.
2 So may I now turn to Mr. Scott to submit the highlights of the Prosecution
3 sentencing brief.
4 MR. SCOTT: May it please the Court. Before I proceed with our
5 comments or our argument, I would just like to point out a couple of
6 procedural matters. First, two of the photos that I have been referring
7 to --
8 JUDGE VAN DEN WYNGAERT: I can't switch mine off. I should be
9 able to switch it off. Mine's off.
10 MR. SCOTT: I'll begin again, Your Honour.
11 There are two photos that will be displayed in the course of our
12 presentation this afternoon, and to avoid any problems or confusion, I
13 wanted to indicate that these had previously, at the Prosecution's
14 request, been placed under seal. However, on further reflection and
15 consideration, we do not believe that there is any need for these
16 documents or photos to be confidential and can be shown. They are hard
17 pictures, if you will, in terms of the emotional impact, but they do not
18 need to be protected in terms of their confidentiality in terms of the
19 victims at this point in time.
20 Secondly, just so there's no misunderstanding, when I make
21 references to some statements by witnesses who are still protected, I have
22 paraphrased or omitted certain references to names just to protect that.
23 So if counsel or someone might detect some discrepancy, it would be
24 because I have paraphrased a couple of things to protect sensitive
1 May it please the Court, Your Honours, for the people of
2 Stupni Do, the 23rd of October, 1993, was hell. There is simply no other
3 way to describe it. On that day, the village of Stupni Do became a
4 blazing inferno of death and destruction. The sounds of gun-fire and
5 shelling of explosions were later replaced by the sounds of women and
6 children and, indeed, I am sure grown men crying. Unfortunately, Stupni
7 Do was one of the signature events in the Balkan wars, together with the
8 Sarajevo siege, Ahmici, Vukovar Hospital, Mostar, and Srebrenica. Only
9 five days after this massacre, only five days, on the 28th of October,
10 1993, the atrocity came before the United Nations Security Council, which
11 demanded an investigation.
12 If I can have that on the screen, please. From the UN report, the
13 Secretary-General's report, we have this excerpt:
14 "The horrendous crimes committed by the HVO in Vares and Stupni Do
15 in October 1993 were immediately broadcast and reported around the world
16 and received the United Nations Security Council's immediate attention.
17 On the 28th of October" -- again, as I've said, only five days after these
18 horrendous events -- "the president of the Security Council requested that
19 the Secretary-General report on the massacre as soon as possible. The
20 Secretary-General communicated his report -- his subsequent report on the
21 10th of February, 1994, indicating the results of an investigation at that
22 time by the military police of the United Nations Protection Force," or
23 UNPROFOR, "which stated in part:
24 "Investigations to date have shown that crimes against innocent
25 civilians in Stupni Do took place on the 23rd of October 1993. 23 victims
1 so far have been clearly identified. A further 13 villagers are
2 unaccounted for and presumed dead, bringing the preliminary total number
3 of victims to 36. The main suspects for the commission of these crimes
4 appear to be extremist elements of the Croatian Defence Council from
5 Kiseljak, Travnik, and Kakanj, under the command of Ivica Rajic. The HVO
6 Bobovac Brigade, operating under its deputy commander, Kresimir Bozic,
7 prevented UNPROFOR units from entering the village after the attack."
8 Paragraph 13 of the Secretary-General's report: "Investigations
9 are continuing in order to gain as much evidence as possible with a view
10 to identifying the perpetrators for eventual trial before the
11 International Tribunal for the Prosecution of persons responsible for
12 serious violations ..." that is, this Tribunal. "The Security Council
13 will be kept informed of the progress made in the investigation."
14 And Ms. President, Your Honours, here we are some 12 years later
15 of this report to the UN and we have Mr. Rajic standing before us -- or
16 seated before us, convicted of these crimes. The victims have waited a
17 very long time for justice to be done.
18 Before discussing the facts of the case as they relate to
19 sentencing, let me touch on a few aspects of sentencing at the ICTY. The
20 primary principles and purposes of sentencing in international criminal
21 justice are, first, retribution, and that simply means giving voice to
22 public condemnation and international rejection of the charged conduct;
23 that is, it is wholly unacceptable to the international community.
24 The second major principle and purpose of sentencing is individual
25 and general deterrence. Not only concerning the accused but, perhaps even
1 more importantly, to others. To commanders and other officials and senior
2 persons who might be tempted or may consider engaging in similar conduct
3 in the future. The principle of deterrence requires that the penalty
4 imposed by the Court and by Your Honours have sufficient deterrent value
5 to ensure that those who would consider committing similar crimes will be
6 dissuaded from doing so.
7 In terms of sentencing factors, the Tribunal has consistently held
8 that the gravity of the criminal conduct is the most important factor to
9 consider in determining sentence. This, in turn, of course, involves and
10 must reflect the particular circumstances of the case, that is, on a
11 case-by-case basis.
12 As Your Honour has already indicated a moment ago, Mr. Rajic
13 stands before this Chamber convicted on four counts; wilful killing,
14 inhumane treatment, appropriation of property, and extensive destruction,
15 all grave breaches of the Geneva Conventions. There can be no doubt that
16 the crimes for which Ivica Rajic has been convicted are among the most
17 horrific crimes that one human being can commit against another. While
18 the number of victims in this particular case may be less than the number
19 concerning some of the other crimes that have come before this Tribunal,
20 that fact cannot in any way detract from the terrible nature of the crimes
21 themselves and the horrible harms suffered by these victims.
22 Let me give a very, very brief overview of the facts of the case
23 as they relate to sentencing and for the Chamber's consideration. The
24 territory of Vares municipality, which included both the town of Vares and
25 the village of Stupni Do, was included in the 18 November 1991 declaration
1 by Mate Boban, Dario Kordic, and others that established the so-called
2 Croatian community of Herceg-Bosna. As in other claimed municipalities,
3 the Herceg-Bosna HVO authorities took over the Vares municipal government
4 in early July 1992. On the 23rd of October, 1993, on the accused's,
5 Mr. Rajic's, orders, HVO forces, including members of the Apostoli special
6 unit of HVO military police, rounded up more than 250 primarily Muslim men
7 in Vares town. During and as part of this process, HVO soldiers entered
8 houses and systematically abused the inhabitants, cursing them, hitting
9 them, forcing them out of their homes, sometimes half dressed, and
10 systematically stole their valuables and money. The rounded-up Muslim men
11 were detained at the Ivan Goran Kovacic and the Vladimir Nazor schools
12 until the 3rd of November 1993. During their detention, HVO soldiers
13 entered the schools and physically abused the prisoners. The prisoners,
14 often including family members, were forced to beat each other.
15 Also on the same morning of the 23rd of October, 1993, on the
16 accused's orders, the HVO forces, including the Maturice special unit,
17 attacked the village of Stupni Do. More than 200 civilians were in the
18 village when the HVO launched the attack which continued until late
19 afternoon. HVO soldiers forced civilians out of their homes and hiding
20 places, robbed them of their valuables, executed and murdered Muslim men,
21 women, elderly, and children, and sexually assaulted Muslim women. It
22 was, indeed, a nightmare.
23 When one group of Muslims - a man, nine women, and three children
24 - attempted to flee, the man was shot and killed. His half-burned body
25 was later found at the same location where he had been shot, and two of
1 the women and all three children were murdered in front of their home.
2 Three young Muslim women who escaped an initial encounter with the HVO
3 soldiers were found hiding in a small cellar and murdered. I'll come back
4 to these young women in a few minutes. Seven members of a Muslim family
5 were found burned in their house, including two children ages 2 and 3.
6 There were others, but for the purposes of this short presentation, these
7 are the ones I will mention here.
8 The HVO massacre at Stupni Do resulted in the deaths of at least
9 37 Bosnian Muslim men, women, elderly, and children. The Prosecution
10 submits that approximately six of these persons might fairly be described
11 as combatants or as having been combatants prior to the time they were
13 The accused has made claims that one -- perhaps an issue that may
14 come up in today's hearing, the accused has made claims that substantially
15 more of the victims were actually combatants, claiming that approximately
16 ten of the victims were "fighters" and six were members of the "civil
18 Let's look, Your Honours, however, at some examples of how some of
19 these persons who the accused says were combatants were killed.
20 Refik Likic. He was forced with another 16 persons out of a
21 house. All of the villagers were told to give the HVO soldiers their
22 valuables. While this was happening, HVO soldiers cut Likic's throat with
23 a knife. When he fell to the ground, they shot and killed him at close
24 range. Hardly a combat death.
25 Mehmet Likic was another victim. After Refik Likic was killed,
1 HVO soldiers ordered these two men -- excuse me, Mr. Mehmet Likic and Edin
2 Mahmutovic [phoen]. HVO soldiers ordered these two men to lie on the
3 ground and then executed them at close range.
4 Ramiz Likic. He was shot several times at close range after he
5 refused to give an HVO soldier his money.
6 After four Muslims were murdered in front of their very eyes, 12
7 other Muslim villagers were forced into a shed which the HVO soldiers then
8 set on fire, but fortunately, the 12 Muslims were able to escape, but
9 listen to the account of one of the victims:
10 "I approached the window and looked outside. I could hardly see
11 anything because there was so much smoke. I just saw one soldier down in
12 the village, running, and fire. From the higher location of the summer
13 house, I saw the whole village in flames. Some houses were already fully
14 burnt down. Others were burning. No house was spared. I suddenly felt
15 that the summer house we were confined in was burning. It was coming from
16 the roof. The summer house was shrouded in smoke. The window that I was
17 looking through was shut and its glass panes were hot. Then the glass
18 panes started shattering. Each of us thought we should do something to
19 get out. Children wept. I was the first one to suggest that we should do
20 something to get out. The only way was to escape through the door. But
21 everyone thought that the soldiers were outside and if we came out the
22 door, they would kill us. I went and picked up an axe. I approached the
23 door. I wanted to break it open but hesitated. Everybody pleaded not to
24 do it. They said we have water and we will extinguish the fire, we will
25 find a way out. All of us were scared they would kill us if we tried to
1 break the doors open. We nonetheless managed to break the door. I looked
2 outside to see whether there were any soldiers there. I did not see any.
3 I stepped outside the summer house. I had seen two corpses being thrown
4 into the fire of someone's house and now I wanted to look for other
5 corpses and see whether my husband's corpse had been spared the
6 incineration or not."
7 The HVO soldiers continued setting houses on fire and by the 24th
8 of October, Your Honours, the HVO forces had destroyed virtually the
9 entire village. It was a scene of utter destruction strewn with the human
10 wreckage of Ivica Rajic's victims.
11 If there is any further need to confirm that the Stupni Do
12 massacre was plainly contemplated and intended and that the behaviour
13 there was horrible in the extreme, let me mention the statements made by
14 HVO soldiers to some of the victims. On the 22nd of October, 1993, the
15 day before the attack, a member of the Maturice special unit told a Muslim
16 man who had been previously detained in the area: "Tomorrow, Balija, we
17 are going to attack your village and kill everything that is alive and
18 moving in it."
19 On the 3rd of November, 1993, four HVO soldiers arrived at one of
20 the locations in Vares where the Muslim men were being detained. One of
21 the soldiers called out to the Muslim men: "Is there any Likic here? If
22 there is I want to show him my condolences because I slaughtered Rama
23 Likic in Stupni Do. Then the soldier took his knife and cut one of the
24 prisoners' left cheek, after which he licked the blood off his knife,
25 saying: "Balija, your blood tastes sweet. Then he cut off one of the
1 prisoners' beard and forced him to eat it.
2 Before the evening of the 23rd of October -- excuse me, between
3 the evening of the 23rd October and the 26th of October, Ivica Rajic and
4 his subordinates refused several attempts by UN Protection Forces, that is
5 UNPROFOR, to enter Stupni Do and the two schools in Vares town when they
6 sought to investigate what had happened at these locations. While the
7 accused has submitted that this was done because of concerns that the
8 Muslim forces might attempt to use UNPROFOR's presence to gain some
9 military advantage, there was simply no justification for denying access
10 to the schools or to the surrounding of Stupni Do. And the fact that HVO
11 forces fired -- fired upon and hit two UNPROFOR armoured personnel
12 carriers serving as observation posts in Vares town, with one of those
13 vehicles -- at least one of them, conspicuously marked with the Red Cross
14 medical emblem, or for firing at the Vares UNPROFOR headquarters located
15 approximately seven kilometres from Stupni Do and only 300 metres, in
16 fact, from the nearby -- or the regional HVO headquarters.
17 THE INTERPRETER: The speaker is kindly invited to slow down a bit
18 for interpretation and the record.
19 MR. SCOTT: Thank you.
20 The Prosecution submits, Your Honours, that this conduct was
21 instead a deliberate attempt to block and impede international observers
22 from discovering the crimes in Stupni Do and Vares until they were at
23 least partially cleaned.
24 On the 26th of October, 1993, when UNPROFOR finally gained access
25 to Stupni Do, they saw that some of the houses seemed to have been used as
1 crematoria, that some of the bodies were so destroyed that they had to
2 have been burned repeatedly to reduce them to such a condition. With all
3 of these things in mind, Madam President, Your Honours, the Prosecution
4 would like to show a video clip to give the Chamber a better idea of what
5 happened in Stupni Do, and the tape is approximately 12 minutes.
6 Are you getting it?
7 [Videotape played]
8 MR. SCOTT: In case there's any confusion, there's no sound. We
9 just wanted to just not to be confused or to be distracted by any of the
10 background noise. So it's just the visual.
11 Might I just add that this is -- I seem to be having a lot of
12 technical problems. Sorry.
13 This is looking down into Vares town, or it was a moment ago, just
14 so you can -- it was also talked about not only about the village but also
15 Vares town, and when you were looking down into the valley, you were
16 looking down into Vares.
17 Well, you're now seeing a number of these clips are actual burned
18 bodies. These are the remains, the only thing that remained of a number
19 of bodies that were in the village.
20 That's the video, Your Honours.
21 Just to show a few very briefly -- a few still photos, a couple
22 I'll come back to in a moment, but I'm just going to go through these
23 quite quickly at first.
24 [Photos displayed]
25 MR. SCOTT: Your Honour, I said a few moments ago that three young
1 Muslim women were killed in a -- murdered in a small cellar, and I would
2 like to come back to those for a moment, if we could go back to those,
3 those first two photographs, the still photos.
4 [Photos displayed]
5 MR. SCOTT: Three Muslim women hiding in a small cellar. One of
6 these -- there's been apparently some claim or information that at least
7 one of these women was a "combatant."
8 This is what a witness said about the killing of Medina Likic and
9 the two other women. "The sounds were coming closer and increasing. Is
10 there anybody in the basement, a male voice coming from the other side of
11 the door. We did not respond. We kept quiet. Somebody entered the door
12 of the basement. The same man who was calling for us in the basement and
13 seemed to be entering inside called out for someone by the name of
14 Kakanjac and asked him to come in the basement.
15 "Kakanjac asked: What? And there was a reply. I have found
16 three Balija's women. The soldiers were cursing and swearing. I think
17 there were just two soldiers inside the basement. Then I heard a burst of
18 gun-fire. It was just the sound of a burst of gun-fire and I did not hear
19 any voices, neither Nevzeta nor Medina nor Hatidza. Then the voices -- I
20 couldn't hear them. Then the voices who were inside cursing and swearing
22 "It was again quiet inside the basement. I realised that the
23 voices were gone. I opened my eyes. I called Nevzeta, Hatidza and Medina
24 in a low whisper. There was no response. I called Medina's name again
25 and I touched her hand."
1 One of these women in this photo.
2 "I touched her hand and she did not respond. Nevzeta, Hatidza,
3 and Medina still sat crouching in the pit, their heads bent over, their
4 chins touching their chest. I tried to shake the body of my Medina, but
5 she was dead. All three of them were dead."
6 I think without needing to look at any additional photos from what
7 the Chamber's already seen, let me just mention what a couple of the other
8 observers have said about these burned bodies that you've seen both in the
9 video and in the still photographs.
10 One of, the UN investigators said: "The third body was that of a
11 child. I made this judgement based on the size of the pelvis. The child
12 may have been a female aged between 13 or 15, or a male between 10 and 12,
13 again based on the size of the pelvis. The size of the skull also
14 appeared to be that of a child. The skull appeared to have been smashed
15 by some means. The edges of the skull bones were fragmented, splintered
16 and sharp. I could not smell any gasoline but I believe the body was
17 intentionally burned based on the amount of destruction."
18 And from a second report on another body. "Bodies were also found
19 inside the building but on top of the roofing material. The bodies were
20 badly burned, but I did not see burn damage and soot on the bricks
21 surrounding the body. Since the bodies were on top of the roofing
22 material, this indicated to me that the bodies were placed on top of the
23 roof after the roof was destroyed or that someone had found the bodies
24 under the roof, removed them, and placed them on top and burned them."
25 An additional aspect, Your Honours, of what happened at Stupni Do
1 and in the aftermath of Stupni Do and Vares, which is a further horrendous
2 fact about what happened there was that there was an immediate and
3 coordinated cover-up, including at the highest levels of the HVO. This
4 included a false investigation which was only meant to appease the
5 international community that began immediately to make demands to know
6 what had happened. And you saw yourself that even just five days later
7 this event, the event that you've seen on these videos, five days later
8 was being discussed in the Security Council in New York. In fact and as
9 part of the cover-up, UNPROFOR was kept out of the area until at least a
10 partial clean-up could be made. As we've already seen, bodies were
11 virtually entirely burned down to nothing. With the knowledge of senior
12 HVO commander Milivoj Petkovic, Ivica Rajic took on the false name Viktor
13 Andric, and Ivica Rajic was fraudulently dismissed and replaced by Viktor
14 Andric. In fact, neither the HVO nor the Herceg-Bosna or Croatian
15 authorities ever punished, ever disciplined a single commander or soldier,
16 including the accused, for the crimes committed in Vares and Stupni Do.
17 Indeed, and to the contrary, and only a few days later on the 1st of
18 November, 1993, when these crimes were plainly known, when they were being
19 disused in the Security Council, that UNPROFOR had already been on the
20 site, with everyone in the world press what had happened, on the 1st of
21 November, Ivica Rajic was promoted to the rank of colonel after these
22 events took place and were known.
23 On the 10th of November, 1993, in a meeting involving the
24 President of the Republic of Croatia, Franjo Tudjman, in Zagreb, it was
25 decided, because of the events in Stupni Do and the repercussions for the
1 Republic of Croatia that Rajic should be replaced and assigned to another
2 area and that a public statement should be issued indicating that a
3 judicial inquiry had been initiated. And in that meeting, President
4 Tudjman referred to all this as a political game. Of course Rajic, in
5 fact, was not replaced except in name. A judicial inquiry was never
6 conducted. It was all smoke and mirrors.
7 On the 30th of December, 1993, the HVO commander Tihomir Blaskic
8 dismissed - I say "dismissed" - Ivica Rajic from command. According to
9 Blaskic's own order "due to a series of apparent weaknesses in command and
10 control and an irresponsible influence on the units while carrying out
11 combat operations." And at the same time Commander Blaskic issued another
12 order appointing Viktor Andric to the same exact position in the command
13 of the same exact troops, the same exact soldiers, who committed the
14 crimes in Vares and Stupni Do, and Viktor Andric of course was none other
15 than the accused, the same Ivica Rajic who had been just dismissed in the
16 other order.
17 As we've indicated on the 10th of February, 1994, the
18 Secretary-General made his report to the Security Council expressly
19 stating that the main suspects included Ivica Rajic.
20 On the 23rd of August, 1995, the accused, Rajic, was indicted by
21 the ICTY on six counts of serious violations of international law. An
22 ICTY arrest warrant for Mr. Rajic was provided to Croatia's minister of
23 justice on the 8th of December, 1995, more than ten years ago -- almost 11
24 years ago, going on 11 years ago.
25 On the 23rd of January, 1996, the registrar requested both the
1 Republic of Croatia and the Republic of Bosnia and Herzegovina to arrange
2 for the publication of the indictment. Ivica Rajic, knowing that he had
3 been indicted, knowing that he was wanted by the ICTY and the
4 international community, willfully avoided arrest for almost eight years
5 with the active assistance of persons and organisations in the Republic of
6 Croatia. The accused used one or more false identities and false papers,
7 including papers issued by the Republic of Croatia giving Ivica Rajic yet
8 another false name, this time Jakov Kovac, and by at least the 30th of
9 June, 1994, and continuing until at least the 30th of June, 1996, Ivica
10 Rajic was financially supported and on the payroll, on the payroll, of the
11 Republic of Croatia Ministry of Defence and living, at least part of the
12 time, in Croatia while he was known by the Tudjman government to be under
13 indictment and wanted by the international community.
14 Finally, after much pressure and with the assistance of the ICTY,
15 finally on the 5th of April, 2003, Mr. Rajic was arrested in Croatia and
16 ultimately brought to this Tribunal a short time later.
17 Just to conclude on two or three factors about sentencing. In
18 terms of aggravating factors, Your Honour, given the horrendous nature of
19 the crimes that you've seen this afternoon and the documents and the
20 evidence that you've had before you and the factual basis from the other
21 material that's been provided to you, it is hardly necessary to talk about
22 aggravating factors; however, let me mention two. One is the accused's
23 position of authority and its abuse. Those in positions of authority may
24 consider such positions a matter of privilege and honour, but they also
25 bring increased responsibility because their behaviour and its effects are
1 so often multiplied by the conduct of their subordinates to whom they set
2 an example and to whom they issue orders and concerning whose conduct they
3 approve or condone. Here the accused, Mr. Rajic, abused his senior
4 position in repeatedly failing to punish prior misconduct and repeatedly
5 sending criminal soldiers into action.
6 Ivica Rajic, unfortunately, in some respects, was considered a
7 hero by many of his subordinates. They looked up at him, they wanted to
8 emulate him, they wanted to please him. He was a hero. And the fact that
9 various known prior misconduct had not been punished sent a not-so-subtle
10 message to his soldiers on the 22nd to the 24th of October as to what was
11 expected of them.
12 Consider the HVO soldier and the accused's subordinate Miroslav
13 Anic, also known as Firga, who only a short time prior to Stupni Do to the
14 Stupni Do atrocities mutilated Bosnian Muslims and hung their heads in the
15 Kiseljak town square and the accused, nonetheless, ordered this same Firga
16 a few days later into Stupni Do.
17 Such circumstances are directly related to the crimes committed.
18 The failure to punish, the false investigation was a direct endorsement of
19 these and other crimes. Once again, it sent a clear message to all the
20 accused's subordinates that no matter what crimes they were committing,
21 even if these crimes were exposed, even if they were strongly denounced by
22 the international community, the perpetrators would be protected and would
23 go unpunished, thus promoting an atmosphere and a culture of impunity.
24 Indeed, his HVO subordinates know that Rajic's identity as Viktor Andric
25 was a complete farce. We can only sit in this courtroom today and think
1 that they must have thought it was quite a joke on the international
2 community that the international community had been told that Ivica Rajic
3 had been replaced, and all of them had to know, his soldiers, his
4 lieutenants, his officers, there he was, using the name Viktor Andric.
5 This could only have contributed to a further lack of respect for
6 the international monitors when their very own HVO commanders, Petkovic,
7 Blaskic, and Rajic, directly participated in a fraud on the international
9 A second aggravating factor, Your Honours, is -- in terms of
10 victim impact is the involvement of vulnerable and young victims. In the
11 village of Stupni Do, the injuries caused and the harm done by the accused
12 and his soldiers have lasted long after the 23rd of October, 1993.
13 Individuals of whole families were traumatised. Many were left without
14 husbands, fathers, wives, mothers, and children. The accused's victims
15 included at least five children; one aged 13, another aged 8, two who were
16 3 years old, and one who was 2 years old. And at least 14 women. Some
17 women and men were executed in front of close relatives. Young women were
18 forced into some of the houses and were sexually abused. One of the
19 victims lost most of his family; he lost his parents, he lost his spouse,
20 and he lost one of his children, all in one day. While many others mourn
21 the death of their husbands, and children. As you've seen in the still
22 photos and in the video the village itself was almost completely
23 destroyed. Most of the villagers lost everything they had worked for all
24 of their lives.
25 In Vares town, down in the valley, Muslim men were rounded up and
1 detained in two schools where they were severely beaten or forced to beat
2 each other, often being members of the same family. Brother made to beat
3 brother, father made to beat son. Some of the men were so badly beaten,
4 they were suffering -- they still suffer today in terms of some of the
5 medical certificates that we have provided to Your Honours continuing,
6 long-term injuries.
7 Your Honour, before I conclude, I will mention on the other hand
8 some mitigating factors, in fairness to the accused and consistent with
9 the plea agreement and consistent with keeping this Chamber fully informed
10 of the facts and circumstances surrounding the underlying conduct and what
11 is before the Court at this time.
12 A guilty plea is -- I'm quoting from some of the other Tribunal
13 cases. A guilty plea is always important for the purpose of establishing
14 the truth in relation to a crime. The establishment of the truth is a
15 fundamental step on the way to reconciliation and prevents all forms of
16 revisionism. For the people who, even today, say that these events never
17 happened, for the people who, today, still say Stupni Do didn't happen
18 like this, this guilty plea and Mr. Rajic standing up and saying: Yes,
19 these things happen and, yes, I'm responsible for it, defeats and
20 overcomes that revisionism. No more can someone stand up and say: These
21 things didn't happen.
22 As one Trial Chamber noted: Guilty pleas may contribute to the
23 process of reconciliation among the peoples in Bosnia and Herzegovina.
24 Therefore, while the Prosecution in no way minimises -- I'm sure you can
25 tell by my comments and what we've put before you this afternoon. While
1 we in no way minimise the horrible crimes concerning which this accused
2 has pled guilty and stands convicted, it must be said that this accused is
3 the only one concerning these crimes who to date has stood up and said: I
4 am guilty, and I accept responsible for what I did. The Prosecution
5 submits that the accused's guilty plea is, indeed, a factor which the
6 Chamber can and should consider in determining an appropriate sentence.
7 One last factor is cooperation. Rule 101(B)(ii) specifically
8 identifies: "Substantial cooperation with the Prosecutor as a mitigating
9 factor to be considered in sentencing."
10 The weight to be attached to cooperation: "Depends on the extent
11 and the quality of the information provided to the Prosecution."
12 We inform the Chamber, as we have in our papers, that Mr. Rajic
13 has indeed substantially cooperated with the Prosecutor and he continues
14 to do so. He has met with us on a number of occasions. He has provided
15 documentation, and he has been of substantial assistance to the
16 Prosecution, as I say, and his cooperation continues. Therefore, the
17 Prosecution does inform the Chamber that this is a factor -- a mitigating
18 factor that the Chamber can consider in connection with determining
20 I should say, however, so that there's no confusion: In making
21 its recommendation of a 15-year sentence, the Prosecution has taken both
22 of these factors into account, that is, Mr. Rajic's guilty plea and his
23 cooperation. And I can say to Your Honours that without those two factors
24 our sentencing recommendation would have certainly been more severe than
1 Your Honour, I have a few additional comments, but I will save
2 them until the final comments that you have allowed on the schedule.
3 Thank you very much.
4 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Scott. I have a number of
5 questions that I would want to ask you, six in number.
6 The first question relates to what you consider as a factor
7 concerning the overall gravity of the offence. If I understand you
8 correctly, you seem to suggest that the exposure of the crimes in the
9 Security Council and in the General Assembly is something that contributes
10 to the gravity of the offence because it sort of offers evidence of the
11 indignation of the international community. But I have a question about
12 this, because would you then suggest that if there would not have been
13 such exposure that the gravity would be less and would crimes that have
14 not been exposed, if it -- let me call it the CNN factor, would those
15 crimes then be less serious than crimes that have been exposed. My first
17 May I list them in a row?
18 MR. SCOTT: Yes, of course.
19 JUDGE VAN DEN WYNGAERT: Okay. My second question has to do with
20 what you were mentioned I think as an aggravating factor; mainly the fact
21 that Mr. Rajic has not engaged in the punishment of people previous to the
22 attacks of Stupni Do and then included a certain person, I note here
23 Miroslav Anic as an example.
24 My question is the following: Wouldn't that be rather a relevant
25 element in assessing responsibility under Article 7(3) but given the fact
1 that the conviction that has been entered is based on 7(1). Is this
2 something that this Court can take into account as an aggravating factor
3 still, given the fact that the Appeals Chamber in Nikolic has just
4 reminded us of the fact that we cannot double-count elements on the one
5 hand to assess the gravity and, on the other hand, in addition to that, to
6 aggravate the sentence.
7 My third question has to do with the two new aggravating
8 circumstances that you advance, the participation in a cover-up and the
9 absconding and obstruction -- obstructing of criminal justice. This is,
10 as far as I can see, something that has never been decided by this Court.
11 And I would wish to know whether what you in your additional brief give as
12 examples of legislations where this really is taken into account as an
13 aggravating factor, whether that is sufficient for this Trial Chamber to
14 find a general principle of law in which we could -- on which we would
15 base an eventual finding of an aggravating factor.
16 My fourth question is something that does not relate to what you
17 have said or what is in your briefs, your written briefs, but I would wish
18 to know - and we may go into closed session if you so wish - whether there
19 is a link with the 11 bis proceeding and whether the fact that you have
20 withdrawn your 11 bis application waiting for the outcome of the
21 sentencing procedure has something to do with the plea agreement.
22 I'll drop my fifth question because otherwise I will be too long.
23 My sixth question, and also for that we may want to go in closed
24 session if you so decide or if you so ask us to do is: Could we get more
25 information about what the cooperation with the Prosecution consists of
1 and whether -- what this could possibly mean for he future in concrete
3 Thank you very much. Sorry for inundating you with such a long
5 MR. SCOTT: Thank you, Your Honour. I'll try to answer as many of
6 those as I can in open session and, indeed, it may be that as we get
7 toward the end of your questions we might want to go into private session.
8 In terms of the fact that these crimes were known, for instance,
9 to the Security Council as early as 1993 and to the UN, I'm not sure that
10 it's an aggravating factor in a -- in a technical sentencing sense, but
11 the cover-up -- and this really relates to the issue of the cover-up as
12 well, if I can perhaps answer both those questions at once. It goes to
13 the accused's state of mind, his knowledge that something indeed very
14 terrible had happened there. This was known right away, and the efforts
15 to engage in a cover-up took place right away. And I think that that --
16 we submit, Your Honours, that that is evidence of state of mind. It's
17 a -- where I come from of a guilty mind. One does not have to cover up
18 something that is innocent, something that is not improper. And the fact
19 that this was reported to the Security Council and in the international
20 media put a spotlight on these events at every level, whether in
21 Stupni Do, in Vares, in Kiseljak where Mr. Rajic was, or in Zagreb with
22 President Tudjman, or anywhere in between. And under that spotlight,
23 nonetheless, these very serious and very coordinated steps to cover this
24 up, for everything from burning the bodies virtually beyond recognition,
25 to taking on a false name, Viktor Andric, to a false investigation that
1 Mr. Rajic now admits was intended to mislead, these things are aggravating
2 in that broader sense. These were not -- these were not just combat
3 deaths. These weren't -- this wasn't collateral damage. These were
4 people that were executed followed by a cover-up. And it's in that
5 context that we believe that the Chamber --
6 JUDGE VAN DEN WYNGAERT: Could I just interrupt you for a moment.
7 Would you to assess the state of mind of an accused also take into account
8 what happened after the crime? To assess the state of mind when the
9 accused committed the crime? Is that the way you look at it?
10 MR. SCOTT: I would consider it, if you will, Your Honour, a
11 continuing state of mind. Again, where I come from -- I was a prosecutor
12 in the United States which perhaps you figured out by now. Where I come
13 from a cover-up in a sense is a continuation of the crime, and it's a
14 continuation of that sense of guilty mind. It's a continuation, another
15 phase, a second or third, fourth phase of the crime. So we would consider
16 it just as part of the continuing conduct that Mr. Rajic and others around
17 him engaged in which seems to us, and we would respectfully submit this
18 would be contrary to this being again collateral damage or two armies
19 fighting each other in some sort of legitimate combat way. There would be
20 no need for him to cover-up. There would be no need for a false
21 investigation. There would be no need to take on a false name, and those
22 are the factors that we would put before the Court for its consideration.
23 On your second question, Madam President, on the failure to
24 punish. Clearly in a more tradition sense I think it is directly related
25 to 7(3), but again what we have tried to do, and again in sentencing
1 practices that I'm accustomed to the sentencing court wants to have as
2 much information as possible, about the individual, about the history of
3 the individual, about what happened, the crimes that were committed, about
4 the accused's role in those crimes, so we have simply taken the position
5 to try to advise the Chamber of as much relevant information as possible.
6 Perhaps if putting the word in some -- in a technical jurisprudential
7 sense, putting the word "aggravating" on it, if that causes some concern,
8 I think let's just look at it as it's relevant information. We would
9 submit it's relevant information of the totality of the circumstances for
10 the Chamber to consider.
11 There -- having said that, the ICTY jurisprudence does recognise a
12 direct relationship between 7(1) and 7(3), and indeed where -- the
13 repeated failures to punish under 7(3) can become 7(1), instigation; 7(1),
14 encouragement, approval, whatever. If you have troops -- you have
15 subordinates with you and you repeatedly fail to punish similar conduct,
16 after a while that sends the affirmative message that I approve, I
17 condone, this is the conduct that I expect. And it becomes instigation,
18 it becomes 7(1), I think at least offhand I can remember in the Blaskic
19 trial judgement I know Judge Jorda addressed that question and made that
21 Absconding. Again, Your Honour, it's the totality of the
22 circumstances. The fact that, just as we've seen with many people at the
23 Tribunal, whether it's Ratko Mladic or Karadzic or Gotovina or Mr. Rajic
24 or others, it is -- great efforts have been made to avoid coming before
25 this Tribunal. Great efforts have been made to avoid justice, and again I
1 guess our bottom-line position on that is we think it's fair for the
2 Chamber to be aware of that.
3 Mr. Rajic had many opportunities to come forward. This indictment
4 was known to him. It was published in the local -- in the regional media.
5 He was employed by the government of Croatia at the time that arrest
6 warrants had been given to that government. Mr. Rajic had numerous
7 opportunities over an eight-year period to come forward and let justice be
8 done. Either attempt to clear his name or let the process run its course,
9 but he had many opportunities to come before this Tribunal. And it took
10 eight years. And not then -- even not still then a surrender. He was
11 arrested finally after eight years to come before this Tribunal.
12 Your Honours, in terms of the 11 bis proceeding, perhaps I can
13 give a general answer without going into private session. And then if the
14 Chamber wants more detail, I suppose we could go into private session.
15 There is no -- there is no link per se between the 11 bis
16 proceeding and the guilty plea. If you will, I hope it won't be difficult
17 to understand, those two things were simply happening on parallel tracks.
18 There was consideration at the time that, as you know, there was - how
19 shall I say it? - there was significant external concern about the docket
20 of the Tribunal and the case-load of the Tribunal and referring some of
21 these cases to the national courts. Mr. Rajic's case was identified as
22 one which might, although having been fully proper to bring it here, I
23 think the crimes speak for itself. Mr. Rajic was a senior HVO officer.
24 Nonetheless, the case was identified as a candidate for the 11 bis
1 While all of that was happening, conversations had already taken
2 place and been initiated about the possibility of a guilty plea, which
3 then initially, by the fact that we're standing here this afternoon, did
4 come about. But there was no linkage between the two. If this happens
5 this happens, or if this, it was simply going down two parallel tracks,
6 and once the guilty plea agreement was reached, then there was of course
7 no reason to -- in our view to proceed under 11 bis.
8 As to Your Honour's last question about cooperation, I think it
9 would be better to go into private session.
10 JUDGE VAN DEN WYNGAERT: We'll go in private session.
11 [Private session]
16 [Open session]
17 THE REGISTRAR: We are in open session, Your Honours.
18 JUDGE VAN DEN WYNGAERT: Thank you very much.
19 MR. SCOTT: Thank you, Your Honour.
20 JUDGE NOSWORTHY: Mr. Scott.
21 MR. SCOTT: Yes, Your Honour.
22 JUDGE NOSWORTHY: We may have to go into private session once
23 again because I'm going to revisit that area that our President, Judge
24 Van den Wyngaert has just gone into.
25 So may I ask the President if we could go into private session.
1 JUDGE VAN DEN WYNGAERT: Private session.
2 [Private session]
21 [Open session]
22 JUDGE NOSWORTHY: Now to deal with an aggravating factor, and the
23 question of the avoidance of responsibility, and the escape from justice
24 and from submission to the Court for eight years, I believe, for a number
25 of years, I would like to make this inquiry: Do you have any evidence of
1 when the fact of indictment first came to the attention of the accused?
2 When did it first come to his knowledge that he was so indicted and,
3 further, when did it come to his knowledge that a warrant had been issued
4 for his arrest? Please give us that information, if you have it.
5 MR. SCOTT: Thank you, Your Honour. The most concrete information
6 on that point -- and by point of reference, on the 23rd of August, 1995,
7 Mr. Rajic was indicted on the original indictment, the 23rd of August. We
8 do know that at least by 19th of January, 1996, Mr. Rajic signed a power
9 of attorney at a time when he happened to be in Kiseljak in Bosnia, not in
10 Croatia but back in Bosnia, and he signed a power of attorney authorising
11 an attorney to represent him in -- concerning the indictment against him
12 and then seemed to disappear again.
13 So there is a signed document. I'll have to say I don't have it
14 in my hand this afternoon, Your Honour, but there is a signed document
15 dated approximately the 19th of January, 1996, in which Mr. Rajic would
16 indicate his knowledge of these proceedings.
17 JUDGE NOSWORTHY: I'm most grateful to you.
18 There is something else, and it concerns, I believe, one of the
19 still photos. I would like to visit that area.
20 MR. SCOTT: All right.
21 JUDGE NOSWORTHY: It was, I believe, photograph number 0332706
22 before the one of the three Muslim ladies who had been killed, huddled
24 MR. SCOTT: Yes.
25 JUDGE NOSWORTHY: They were Nevzeta, Medina, and Hatidza.
1 MR. SCOTT: Yes.
2 JUDGE NOSWORTHY: Sorry about my pronunciation. But in that prior
3 photograph, the still that was shown, what was that still of? I would
4 like to find out.
5 MR. SCOTT: Yes, Your Honour, I'm sorry. We're having -- I
6 apologise to Your Honour. We're having some difficulty identifying the
8 JUDGE NOSWORTHY: [Microphone not activated].
9 THE INTERPRETER: Microphone, Your Honour, please.
10 Microphone, Your Honour.
11 JUDGE NOSWORTHY: My apologies are in order for not having the
12 microphone on.
13 00332706. It was immediately before the one that showed the three
14 ladies huddling together.
15 MR. SCOTT: There are two photographs of the ladies, the young --
16 the Muslim women, and maybe -- I'm sorry, I've tried -- obviously I'm
17 going to try assist the Chamber as much as possible. It could be the
18 first one is a further -- the photograph is further away, where you get
19 the perspective of the entire -- well, not the entire --
20 JUDGE VAN DEN WYNGAERT: Don't worry, Mr. Scott, we have found.
21 We have it here.
22 JUDGE NOSWORTHY: Could I help to identify it for you. Judge
23 President has very kindly assisted me. And in the booklet which you
24 provided it's 00332910. I'm very grateful to our President for that.
25 MR. SCOTT: All right. I think it's -- what we've considered
1 2910 -- is this the -- can you see what's on the screen now?
2 JUDGE NOSWORTHY: Yes, I wanted to know --
3 MR. SCOTT: Is that the photograph?
4 JUDGE NOSWORTHY: Precisely.
5 MR. SCOTT: Thank you very much. I'm sorry.
6 And your question -- what is this? This is the -- this is the
7 cellar where the three women were killed and it is just from a further
8 distance away. And if you look forward the lower centre part of the
9 photo, you see the same three women in the small little pit below --
10 excuse me, behind the two barrels of what looks to be potatoes or -- I
11 would say potatoes.
12 And the next photo is simply -- hard to say simply in this
13 context, but is a closer photo.
14 JUDGE NOSWORTHY: Yes. I'm grateful to you, because in that first
15 one behind the green pail I had not initially picked up the three bodies
16 that were there. So I'm most grateful to you there.
17 MR. SCOTT: Yeah, surely.
18 JUDGE NOSWORTHY: And this would be my last question, really for
19 my own education and for clarification. I don't know if other members of
20 the Chamber are having a difficulty with understanding. But in your
21 submission you had mentioned that a member of the Maturice special unit,
22 after having said the blood was sweet in respect of the throat that had
23 been cut, he cut off one of the prisoner's beards and forced him to eat
24 it. One of the prisoner's beards?
25 MR. SCOTT: Yes, Your Honour, one of the Muslim prisoner's beards.
1 JUDGE NOSWORTHY: He would have had two beards.
2 MR. SCOTT: I think you would say it in terms of there were a
3 number of Muslim prisoners at that time, and as to one of the prisoners he
4 forced him to cut off his beard.
5 JUDGE NOSWORTHY: Okay. I see. I stand corrected.
6 MR. SCOTT: Sorry if the grammar --
7 JUDGE NOSWORTHY: No, no, not at all. Not at all. I just wanted
9 Before I end my questions, there's just one thing I'd like to get
10 on the record. I believe earlier on at the start at page 3, somewhere in
11 the middle, there was a reference by our learned President to Counts 1, 3,
12 7, and 9 but they have gone down on the transcript as Counts 1, 2, 7,
13 and 9. So if that could be corrected.
14 Thank you, Mr. Scott.
15 MR. SCOTT: Thank you, Your Honour.
16 JUDGE VAN DEN WYNGAERT: Thank you very much, Judge Nosworthy.
17 Judge Hoepfel.
18 JUDGE HOEPFEL: Thank you. I have just one additional question.
19 In transcript page 11, lines 7 to 9, this is what you cited. You
20 said: "On the 22nd of October, 1993, the day before the attack a member
21 of the Maturice special unit told a Muslim man who had been previously
22 detained in the area: "Tomorrow, Balija," and then there is something
23 missing, "we are going to attack your village and kill everything that is
24 alive and moving in it."
25 Can you please complete this and explain me what that means in
1 this special area, Balija and something.
2 MR. SCOTT: The -- yes, Your Honour. The missing word in terms of
3 the transcript, I think that's just, with all respect, I think just a
4 transcription error. There is no separate word, but let me just go back
5 to my original notes because I did try to quote it directly.
6 It was simply -- yes, it's: "Tomorrow, Balija, we are going to
7 attack your village."
8 So I don't think there's anything missing there. It may have been
9 my pronunciation of the word "Balija" which may have come across sounding
10 as if perhaps I was saying two words. If it was my mistake, I apologise
11 for that.
12 Balija is a very difficult -- in my experience, and having been
13 here for some years, a very difficult term to describe except to say that
14 it is considered to be an extremely derogatory term toward Muslims. I
15 literally do not know a literal translation, Your Honour. And I've asked
16 Muslims this, and I've asked people in Bosnia and people who have come to
17 The Hague. One might -- it's almost probably too not derogatory enough to
18 say something like you swine or you that are less than dirt, but it is an
19 extremely derogatory term that's applied towards Muslims.
20 JUDGE HOEPFEL: Thank you very much. No further questions.
21 JUDGE VAN DEN WYNGAERT: Thank you very much.
22 Well, we've been very well on schedule for this first session. We
23 will have our break now for 20 minutes and we will resume at 10 to 5.00.
24 --- Recess taken at 4.29 p.m.
25 --- On resuming at 4.55 p.m.
1 JUDGE VAN DEN WYNGAERT: We will now hear the submissions for the
2 Defence. Ms. Kosta.
3 MS. KOSTA: [Interpretation] Your Honour, my learned colleagues,
4 after the Prosecution I shall be presenting the case in light of the
5 mitigating circumstances and of course all the aggravating circumstances
6 that were raised by the Prosecution.
7 I have to say first and foremost that I agree with a comment made
8 a moment ago by one of the members of the Trial Chamber, that we must take
9 into consideration that the subject of -- under discussion here -- one of
10 the points is that my client has pleaded accused -- pleaded guilty of 1,
11 3, 7, and 9 counts, and under 2(A) 2(B), and 2(D).
12 Now, as far as his responsibility is concerned and accountability
13 it has recorded under Article 7(3) of the Tribunal which states that no
14 commander will be rid of responsibility if a crime is committed by one of
15 his subordinates if he knew or had reason to know that the crime would be
17 I would just like to draw your attention in this portion to
18 Article 7(4) of the Statute, and I'll explain why later on, and that is
19 the fact that an accused person acted pursuant to an order may not be
20 considered in mitigation of a punishment --
21 JUDGE VAN DEN WYNGAERT: May I just interrupt you, Mrs. Kosta.
22 Referring to the clarification judgement, we are very clear on the point
23 that the guilty plea was entered for Article 7(1) and not for 7(3). So I
24 hope we agree on that because I wasn't quite sure of what you were saying
25 just now. But we agree that the conviction has been entered on the basis
1 of 7(1), not 7(3).
2 Thank you.
3 MS. KOSTA: [Interpretation] Yes, 7(1).
4 First of all, I'd like to say that everything that happened and
5 the consequences of what happened in Stupni Do happened within the
6 frameworks of war and the storms of war in Bosnia-Herzegovina, and that
7 the Stupni Do case was an -- was not an individual one, that is to say, it
8 wasn't an individual location of war operations. At the -- it was taking
9 place at the same time when the Bosnia and Herzegovinian army as well as
10 the Serb army was active on that territory and also the very fact that an
11 action took place in Stupni Do indicates the fact that only one day before
12 the Stupni Do action we saw the fall of the village of Kopljari, which was
13 a Croatian village, and also in June 1993 from the town of Kakanj itself,
14 through an action launched by the Army of Bosnia-Herzegovina 13.000 Croats
15 were expelled, and all those 13.000 Croats came --
16 JUDGE NOSWORTHY: I'm sorry to interrupt. Ms. Kosta, please go a
17 bit slower for me because I'm having a bit of difficulty keeping up and I
18 would like to be able to comprehend. Just a little bit slower. I'm so
19 sorry. Thank you.
20 MS. KOSTA: [Interpretation] Very well. I do apologise.
21 JUDGE NOSWORTHY: Not at all.
22 MS. KOSTA: [Interpretation] As I was saying, 13.000 Croats were
23 expelled from Kakanj and they all found themselves in Vares, which means
24 that Ivica Rajic did not go to Vares because he wanted to do so but
25 because the entire situation with respect to the war operations demanded
1 that intervention take place on the territory of the town of Vares. And
2 my client did not go to Vares because he wanted to do so but on the basis
3 of an order and after an appeal had been launched for
4 assistance from the people of Vares.
5 So he went there and he went several -- there with the Maturice
6 and Apostoli units several days after those units had suffered certain
7 casualties, namely, seven persons were killed. And I should also like to
8 say that within the frameworks of this case and these proceedings we heard
9 one of the commanders, Maturica. And I'd like to draw your attention here
10 to the fact that it -- when we say "special purpose units" that is a very
11 strong term, whereas we're talking about special purpose units then we
12 refer to them as the Maturices and the Apostoli, Apostoles.
13 In the legal context, military context we should draw attention to
14 the fact that these were in fact units which at all times were placed at
15 the disposal of the commander. If the commander deemed necessary to send
16 them to an area where intervention was necessary, for example, where there
17 was a breakthrough, where the separation line could not be held and so on
18 and so forth. So there were no other attributes to these special purpose
19 units except for the kind that I have described. That was their role.
20 As I said, one commander was examined, and we see that we mention
21 his name in the plea agreement and in the indictment itself. It was Como
22 Ilijasevic, and he said when he was examined by the Prosecution, Ms. Josee
23 was the Prosecutor, that they went but did not know why they were going
24 specifically and that they were beside themselves because of the previous
25 acts that had taken place and they didn't have any special weapons.
1 I'm saying this for the following reason. Ivica Rajic, together
2 with those units of some 200 soldiers, pursuant to orders from General
3 Petkovic did not know what he would come across, what was waiting for him
4 when he arrived in Vares itself. With his arrival in Vares, and when he
5 arrived in -- before he arrived in Vares, there were written traces asking
6 for aid and assistance with respect to the fall of the village of
7 Kopljari. So when he reached Vares, Ivica Rajic was informed by those who
8 were engaged in putting up Vares's defence what the situation in and in
9 conformity with that that they were having quite a lot of problems if
10 Bogos hill were to fall or, rather, if Stupni Do were to fall.
11 Sizing up everything that he was told, all the information he was
12 given, Ivica Rajic took the decision that he should take control of Bogos
13 hill. And you can see that Bogos hill was not the subject of the
14 indictment because it is considered to be a very important strategic
15 military point. And at the same time they considered that if the Bogos
16 hill were to fall, then the inhabitants of Stupni Do would leave Stupni Do
17 and that there would be no need for any major interventions.
18 However, when Bogos hill fell, this did not happen. The people
19 did not leave. Neither did the soldiers who were in Stupni Do leave. And
20 this led to additional intervention, although there is proof and evidence,
21 and I should like to refer to that, that the inhabitants , and there were
22 about 40 of them, we have already discussed this matter, and it -- we have
23 reached agreement, that is to say, the Prosecution and Defence reached
24 agreement on that fact. There are about 36 military-able men, or
25 soldiers, as we call them, and they were individuals, and we have
1 documents to that effect, who had packet communication and a certain
2 amount of weapons, too. And in a military sense they were well-armed as
3 we would term it.
4 Now, the Prosecution, during our negotiations and discussions over
5 the plea agreement, and also today, did not refer to and did not present
6 to the Trial Chamber a very vital document as far as the Defence is
7 concerned. I think it is very important to establish the legal
8 groundworks for aggravating and mitigating circumstances for sentencing
9 and judgement. They did not say how far the Bogos hill and Stupni Do was
10 very vital for the Army of Bosnia and Herzegovina. So when we take a
11 closer look at what the analysis contains, and the analysis was presented
12 as an exhibit when we spoke about vital facts in weighing up the
13 sentencing, then you will see that in June Ivica Rajic called upon the
14 inhabitants of Stupni Do and Dastanski village, which are both inhabited
15 by Muslims, to lay down their arms which the inhabitants of Dastanski
16 did. However, the inhabitants of Stupni Do did not lay down their arms
17 and were prevented from doing so by the BiH army and said that if NATO
18 insisted -- if the Croatian army insisted that the town of Vares would be
20 I am very pleased that we were able to see a moment ago
21 photographic documents and also a film, a video was shown on the basis of
22 which you were able to see what I'm saying, that Bogos hill and Stupni Do
23 were very important to the BH army with respect to the town of Vares.
24 I would like now to deal with some of the facts the Defence
25 referred to -- or rather, the Prosecution referred to facts that are
1 linked to show what crimes had taken place in Stupni Do and also they
2 indicated a certain -- certain statements from interviews conducted with
3 soldiers and people who were in Stupni Do themselves. That's what I would
4 like to do.
5 And may we go into private session for that because the
6 Prosecution and the Trial Chamber took note of the fact that this was
7 confidential information and confidential statements.
8 So might we go into private session, please?
9 JUDGE VAN DEN WYNGAERT: Private.
10 [Private session]
11 Pages 222-225 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: We are in open session, Your Honours.
4 MS. KOSTA: [Interpretation] I would like to turn to this issue now
5 dealing with the people under the command of Ivica Rajic, the troops that
6 were under his command.
7 We have to point out that this was a time of war. Ivica Rajic was
8 not the one who founded either Maturice or Apostoli. They were founded by
9 Mr. Tihomir Blaskic. And Ivica Rajic inherited them from him and he
10 changed the name, Lucic. These were professional soldiers, soldiers
11 concerning whom there was information that they had committed certain
12 crimes, as the Prosecution indicated. It says that one of them cut off
13 people's ears, one of them chopped several heads off. However, Ivica
14 Rajic was not the person who prevented any proceedings from being
15 instituted against these people in order to establish the criminal
16 responsibility. The OTP is aware, the Trial Chamber is aware, because
17 there is evidence proving this, that Ivica Rajic and the operations area
18 at the time were the only ones in the entire HVO who did prosecute people
19 for crimes that were committed. So in all cases when Ivica Rajic was
20 aware of the crimes, he did bring charges against the perpetrators.
21 These two facts pointed out by the Prosecution were not a result
22 of Ivica Rajic's decision. No. It was a result of a decision taken by a
23 group, and Ivica Rajic was just a member of that group, one of the
25 When Maturice and Apostoli were issued an order to move towards
1 Stupni Do and Vares, we have to say that Ivica Rajic did issue an order in
2 legal terms. However, he, under no circumstances, ordered his people to
3 exceed their authority which resulted in these grave consequences.
4 Similarly, I would also like to say something about the crimes
5 committed in Stupni Do. Now that we are discussing war crimes and conduct
6 associated with war crimes, we have to say that there is nothing that can
7 improve the impression of war crimes. Every war crime is an awful crime.
8 In addition to that, we must not neglect the fact, and I'm very happy that
9 the President of the Trial Chamber put this question to the Prosecution
10 when she said: Do you believe that in view of the high media profile
11 given to Stupni Do, do you think that it is in that light that the
12 Prosecution views the gravity of the crimes committed, to which the
13 Prosecution said: Absolutely no.
14 However, I would like to say this, that after the crimes in
15 Stupni Do, in a place called Donja Grabovica a massacre was committed.
16 Croatian residents were killed. This is a well-known fact. Muslims
17 killed 19 persons, mostly women, elderly, and children. They did not
18 simply kill them. They slit their throats, following which they cut off
19 each head and impaled it.
20 I have been following all crimes which took place in Bosnia and
21 Herzegovina, but I have to say that this crime was never publicised by the
22 media, at least not to the effect that, for example, a crime in Skabrnja
23 was. I have to say that precisely because of the way that Stupni Do was
24 presented to the public, certain arguments were brought forward to mark
25 this or to describe this as one of the gravest crimes ever committed in
1 the territory of the former Yugoslavia.
2 Let me say something about the number of the victims in Stupni Do.
3 In the plea agreement, we agreed to the number of 36 victims. When we
4 spoke about the sentence, however, I considered it necessary to provide to
5 the Chamber two documents pertaining to the victims of Stupni Do. One
6 document was drafted immediately after the events, which is exactly when
7 the film and photographs you were shown today were made. And then the
8 other one was made up by a commission comprising people from Stupni Do.
9 Nowhere did they state that the fate of some other persons was not clear.
10 On the 23rd of October, 1993, however, they apparently identified and
11 buried the following persons, and then they go on to list the person of
12 the last name, year of birth, and place of residence. They go on to list
13 17 persons.
14 One year after that another list was drawn up which was a list of
15 victims containing at this time 38 names. This is all I have to say about
16 the number. In this second list you can see that the majority of the
17 victims were marked as soldiers, and you can also see that they did not
18 reside in Stupni Do.
19 Let me also say that once we signed the plea agreement and once my
20 client pleaded guilty, we acknowledged everything that took place in
21 Stupni Do. There were, however, testimonies given by eye-witnesses,
22 UNPROFOR representatives, monitors, and so on saying that bodies had been
23 set on fire but did not smell of petrol. It was also said that these were
24 the bones of bodies set on fire; however, it hasn't been possible until
25 today to discern whether these were human bones or animal bones.
1 We must say that this was a hand-to-hand battle. The battle was
2 fought house to house. There was a very strong resistance put up in
3 Stupni Do. This is under which circumstances the battle took place. We
4 also have some witnesses saying that in one of the houses there was a
5 barrel of oil, and as a result of all the ammunition fired this led to an
6 explosion. Then there was also some collateral damage where people were
7 killed by stray bullets. It would be hard to say in certain circumstances
8 whether an injury on somebody's neck was a result of slitting throats or
9 whether that was inflicted by a bullet which went through somebody's neck.
10 Why are we bringing this up? We are bringing this up to show you
11 that these are facts available in this case which must not be neglected
12 because you have to hear the other side as well. You must hear not only
13 about the crimes but you must also hear how the crimes came to be
14 committed. Some things remain unclear or not clarified to this very day.
15 In addition to this, I must point out --
16 JUDGE VAN DEN WYNGAERT: May I interrupt counsel just for a second
17 because I'm looking at the time and -- something is wrong? Maybe it's my
19 With the time limit that is left here, we have quarter to, and we
20 must be aware of the fact that we are bound by the plea agreement. So
21 there are a number of things that are, unfortunately for you, not relevant
22 anymore, and I would suggest that in the time that is left that you
23 concentrate on the sentencing and on the gravity of the crime and the
24 mitigating and aggravating circumstances.
25 Sorry for interrupting you, but I think in view of the time this
1 is an important point to make. Thank you.
2 MS. KOSTA: [Interpretation] I would now like to say something
3 about my defence. My defence was conceived in a completely different
4 manner until I heard your four questions, Mrs. President. I have to say
5 that this prompted me to say something that I wasn't initially going to
6 say. I believe this to be very important for mitigating circumstances.
7 Now, since I have only 15 minutes left, allow me now to turn to
8 the following circumstances. I will be very brief and clear.
9 Ivica Rajic did not go to Vares because he wanted to. Ivica Rajic
10 went to Vares because he was issued an order by his superior, the general
11 who was there, which was Mr. Petkovic. Ivica Rajic was sent there in
12 order to assess the situation and take certain action. Ivica Rajic
13 certainly did not wish for the consequences that he is charged with to
14 happen. He, following this, went back to Kiseljak, wrote a report. And I
15 must say that this report was drafted on the basis of his initial
16 knowledge, which he acquired upon entering the village of Stupni Do. He
17 was able to see that a disproportionate force was used in the village.
18 And based on that, in his report, he wrote sufficient -- he put in
19 sufficient information that should have prompted his superiors to start an
21 When Ivica Rajic reached Kiseljak -- in view of the fact that I'd
22 like to present now -- (redacted)
24 (redacted) Thank you.
25 JUDGE VAN DEN WYNGAERT: Private.
1 [Private session]
20 [Open session]
21 MS. KOSTA: [Interpretation] Ivica Rajic, after that, received a
22 promotion from Tihomir Blaskic on the 1st of November, 1993. The HVO
23 promoted him to the rank of brigadier in active service. Throughout that
24 time you must know that the top Croatian leadership had all the knowledge
25 about the event. And although we did not present this through our
1 evidence, we would like to use our transcripts, which the Prosecution has
2 as well, and that is that at a meeting with President Tudjman, the
3 then-foreign affairs minister literally stated the following. He said
4 that for the public that it was sufficient not only to replace him but to
5 say that an investigation should be underway.
6 I state that in the context of what the Prosecution said when it
7 said that Ivica Rajic wanted to cover up the whole situation, that he
8 himself wished to cover it up, and that that is why he changed his name
9 later on. None of those two facts hold water. He did not cover this up,
10 and he did not change his name because he wanted to do so. He was ordered
11 to do so. I think we provided all the necessary documents to bear that
12 out and showed them to the Prosecution. I think those are the mitigating
14 Ivica Rajic came to Croatia pursuant to orders from the Croatian
15 authorities, and he was there in 1994 until the middle of 1996. It is
16 true what my learned friend of the Prosecution said today, Mr. Scott, when
17 he said yes in answer to one of your questions. When was the date that he
18 first knew that the indictment was raised against him, and he said that it
19 was sometime around the 9th of January, 1996.
20 You know what happened then? He signed a power of attorney to
21 attorney Hodak. And after talking to his attorney Hodak, who informed him
22 of the facts, that is to say, how he should prevent his defence in order
23 to protect Croatia and not to protect himself and not to state what
24 actually happened, that is to say, not to tell the truth.
25 After that Ivica Rajic revoked his power of attorney to attorney
1 Hodak, and I must say that he was in hiding and managed to amass and
2 collect documentation which he has now placed at the disposal of the OTP.
3 That is what I wanted to say with respect to the aggravating
5 Now, the fact that he was a fugitive, let me say that his escape
6 and the consequences of his escape have been hardest on Ivica Rajic. You
7 might ask yourselves why. Well, because he -- the fact that he did not
8 come before The Hague Tribunal, he did that following orders from his
9 superiors. And during that time there were proceedings held before this
10 Tribunal which were very bloody proceedings compared to the proceedings
11 against General Tihomir Blaskic. With his lack of appearance, he was not
12 able to challenge many of the assertions made by that accused, the accused
13 who was later convicted of crimes.
14 So that is what I want to say with regard to the aggravating
15 circumstances that were mentioned.
16 Now, as regards to mitigating circumstances, I would like to say
17 the following. Ivica Rajic agreed to cooperate with The Hague Tribunal
18 and The Hague Tribunal's Prosecution and therefore acknowledged his guilt
19 because the reason was that he wanted in a direct way, without exposing
20 victims to additional torture, to tell the Tribunal what actually happened
21 in Central Bosnia or, rather, within the frameworks of his operative zone.
22 And I would also like to stress one additional fact. Ivica Rajic,
23 after having changed his name, because this was something that he was
24 ordered to do, to become Viktor Andric, remained a commander of the
25 forward command post, and I must say that at that time he took part in
1 breaking through the corridor towards Busovaca with those same people.
2 No -- not a single crime was ever committed in doing so.
3 That would be all.
4 I do apologise, but there was another circumstance that I would
5 like to raise and that is the circumstance relating to the impossibility
6 of UNPROFOR and UNPROFOR's entrance into Stupni Do and Vares. I would
7 like to say that there, too, Ivica Rajic was acting upon orders from
8 Mr. Blaskic, and they have been attached to these files. It was not an
9 action or operation that was characteristic of Ivica Rajic.
10 That is something that the other side did as well, the Army of
11 Bosnia-Herzegovina did that kind of thing, too. And we will see in the
12 document 01813328 that it is unchallenged that Rasim Delic also prevented
13 UNPROFOR from entering the Croatian villages and the territory where
14 action -- the arm -- Bosnia-Herzegovina undertook its actions and
16 Ivica Rajic, and that is something that the Prosecution are aware
17 of -- well, the question is: Why did UNPROFOR not enter Stupni Do? Well,
18 precisely because there was a package link, and in Stupni Do you did not
19 only have unprotected citizens, unprotected inhabitants, but it was
20 established -- but with the entrance of UNPROFOR that this would enable
21 soldiers who were there, who were in Stupni Do themselves, to leave. We
22 see this on the basis of a document that was verified by the
23 Tribunal, and the number of that document is 00793182, in which
24 specifically one of the participants in the action on the part of the BH
25 army in Stupni Do states the following: "We were told through packet link
1 that us soldiers would be transported -- we soldiers would be transported
2 by UNPROFOR, three of us with weapons, but we have to leave our weapons in
3 the woods and also take down all our military insignia."
4 And he says: "I took my insignia off my uniform and put on
5 civilian clothes."
6 So what Mr. Rajic says is this: He says that when war operations
7 were ongoing, there was -- it was not his own will not to allow UNPROFOR
8 to enter. There were realistic circumstances who -- which indicated the
9 fact that UNPROFOR could be abused if it were to do so.
10 The Defence and Mr. Rajic signed the plea agreement, the guilty
11 plea. We stated that we were guilty of the counts in the indictment,
12 charges made in the indictment. We have shown sincere remorse, and that
13 is why we propose that this Trial Chamber set a sentence of 12 years for
14 my defendant.
15 I should also like to mention that in my written submissions I
16 include a series of facts and figures which I consider give the Trial
17 Chamber an overall view of the situation and that they will be able to
18 weigh up the sentence with all these facts before it.
19 I think that a 12-year sentence would serve as a deterrent and
20 serve justice.
21 JUDGE VAN DEN WYNGAERT: Can you please switch out your
23 Thank you, counsel. I have one general observation and perhaps
24 one question.
25 My general observation is that in your submission now you have
1 made a number of points that are in contradiction with the facts as they
2 have been agreed in the plea agreement. So you must be aware of the fact
3 that we, as the Trial Chamber, are bound by these facts and that we can't
4 re-open a discussion on a number of items that you now want to bring under
5 our attention or facts that you would wish to put in a different light.
6 This is something that cannot be done at this stage in time, so I'm not
7 going to go into that. I just want you to be aware of this.
8 I have a question, but perhaps this is something that I can -- a
9 question that I can address to the -- to Mr. Rajic when he makes his
10 statement later on.
11 The Trial Chamber knows very little about the personal
12 circumstances of Mr. Rajic. So you have referred just now at the end to
13 what you have been saying in your brief, but is there anything that you
14 could ask -- could add to help the Court in assessing the personal
15 circumstances of your client? Maybe you can leave it to him. I don't
17 THE INTERPRETER: Microphone, please, for counsel.
18 MS. KOSTA: [Interpretation] Your Honour, as to the personal
19 circumstances of Mr. Rajic, the accused, I should like to say that the
20 accused to the present day, to the time he appeared before the Trial
21 Chamber, was never convicted of any crimes and he never came into
22 coalition with the war. He was an honourable and respectable man in his
23 unit and a member of the community in which he lived. He was also a man
24 who, during his youth, was an honourable person. He came from a very poor
25 background, and everything that he created he created through his own
1 efforts and labour.
2 He is the father of three children and is expecting a fourth
3 child, a fourth child is on the way. His wife also works, and he was
4 always a respected member of the community.
5 That is what I can tell you about him.
6 As to his other personal circumstances, I'm sure he'll be able to
7 tell you those himself better than I would be able to. But that is what I
8 know so far about him as a man and a member of the community.
9 Thank you.
10 JUDGE VAN DEN WYNGAERT: Thank you very much, Ms. Kosta.
11 Judge Nosworthy.
12 JUDGE NOSWORTHY: Yes. Mrs. Kosta, or Ms. Kosta, I had really
13 noticed the same thing as the Presiding Judge, that you had overlooked the
14 question and the issue of the personal circumstances of the accused.
15 And you mentioned the fact that he was from a poor background. Do
16 you have any other instructions or material that would help the Trial
17 Chamber in terms of how he was brought up or the circumstances of his poor
18 background, how he related to his parents and so on. That would go to the
19 personal circumstances? Anything more to assist the Trial Chamber from
20 you, his counsel?
21 MS. KOSTA: [Interpretation] As far as his personal circumstances
22 are concerned, I think they are facts that hold true for every normal
23 person. That is why I didn't consider it necessary to bring any documents
24 with me to indicate this to you. Perhaps that is a mistake on my part
25 which I hope will not be reflected on my client.
1 He was a very good student. He was a very good pupil during
2 secondary school. He completed military school, and his family was a very
3 poor one. He was supposed to be a priest. He was not linked to any
4 ground forces. He was an engineer, a radar engineer. Unfortunately the
5 war broke out and everything that happened happened.
6 I would just like to add amongst the mitigating circumstances one
7 more thing which we omitted to talk about, and that is that when we as the
8 Defence wanted to verify the statements and testimony of certain
9 individuals, statements given, such as Nenad Rajic, who lived in Kiseljak
10 and who spoke about his relationship towards Muslims, in June the village
11 of Rotilj, which is near Kiseljak, and this is in 1993, it had an
12 exclusively Muslim population. In that village there were 1.500 Muslims
13 who were expelled.
14 Now, that witness, Nenad Rajic, said that Ivica Rajic paid daily
15 visits and asked that those people -- that not a hair on the head of these
16 people should be harmed, regardless of whether those people were supposed
17 to be exchange or not.
18 There was also another testimony by a witness called Jakov
19 Bienfeld who, without any separate invitation, and there was a newspaper
20 article written about that, came and said that Ivica Rajic during the
21 siege of Jews in Sarajevo in 1993 organised -- that the departure of 2.000
22 Jews from Sarajevo without any remuneration or any conditions or strings
23 attached. He managed to arrange for 2.000 Jews to leave Sarajevo.
24 Those are additional data and circumstances that I could -- that I
25 was able to give you.
1 JUDGE NOSWORTHY: I want to thank you, Madam Defence counsel.
2 There was no indictment on your competence as counsel, just in an effort
3 to get additional circumstances that might better help the Bench and the
4 Trial Chamber in determination of its functions and issues before them.
5 Thank you.
6 JUDGE HOEPFEL: I have no special questions.
7 Maybe the one point you underlined: "We have shown sincere
8 remorse." Can you maybe describe us -- before we come to talk the accused
9 himself, in how far this remorse was -- had been articulated so far.
10 MS. KOSTA: [Interpretation] Your Honours, the remorse was
11 expressed in a way which might sound absurd to you, but it was done right
12 at the outset when Mr. Rajic just found out that there was an indictment
13 against him, that this court issued an indictment against him. And at
14 that time he was willing to come to the court and say how things happened.
15 Why is it that the investigation was not carried out? Why is it that
16 things happened the way they did? Once he received the instructions that
17 he was supposed to keep silent, that he was supposed to say that Croatia
18 had never waged a war in the territory of Bosnia and Croatia, those were
19 his instructions. This may sound absurd to you, but under those
20 circumstances he started collecting documents, the documents which he
21 disclosed to the OTP recently, and made himself available to the
22 Prosecution as a witness in future cases.
23 I also have to say to you that after his arrest - and this is
24 something that can be corroborated by Mr. Scott - I was not Mr. Rajic's
25 lead counsel at the beginning. I was just his co-counsel. But I think
1 that back in 2003 Mr. Rajic asked or told his then-counsel, Mr. Olujic,
2 that he was present to -- he was available to testify in the Blaskic
3 appeal case to challenge all the untruths that were said in those
5 When I asked Mr. Scott whether he was aware of that, because
6 Mr. Olujic used to claim that he had informed Mr. Scott, but Mr. Scott
7 failed to take any action in response to this. This left me speechless.
8 So the remorse was that and the remorse was expressed in such a
9 way that from the first day of his arrival here my client never wanted to
10 avoid his responsibility. And it's not that he wanted to cooperate only
11 because of the threat posed by 11 bis proceedings, no. He expressed a
12 desire to cooperate from the very beginning.
13 JUDGE HOEPFEL: Thank you.
14 JUDGE VAN DEN WYNGAERT: I take it, counsel, that you have no
15 further evidence of what you are just saying than your own statement of
17 MS. KOSTA: [Interpretation] Your Honours, no, I have no additional
18 material to offer you.
19 But now that we are discussing all of these mitigating and
20 aggravating circumstances, allow me to offer another mitigating
21 circumstance; namely, in the documentation disclosed to us and to you by
22 the OTP, it seems clear that Stupni Do had about 50 houses and 250
23 inhabitants and that 50 houses had been destroyed. This has been proven.
24 However, on page 00332872A there is a paragraph showing that the cemetery,
25 the cemetery existing in the village of Stupni Do, was left intact, was
1 completely preserved.
2 In addition to that through our exhibits, we disclosed to you
3 photographs showing that the Muslim mosque was also left intact. Why am I
4 bringing this up? I am bringing this up to show you just what kind of an
5 operation was conducted there in Bogos and Stupni Do, what kind of an
6 attack it was.
7 JUDGE VAN DEN WYNGAERT: Thank you, Mrs. Kosta.
8 We will now turn to Mr. Rajic.
9 Mr. Rajic, you have the opportunity to make a statement now, and
10 we understand that this is going to be a statement about your own
11 feelings, looking back at what happened in October 1993 and your own
12 involvement there. So in that case, I will refrain from asking you to
13 make a solemn declaration. Is it correct that you will be stating your
15 THE ACCUSED: [No interpretation].
16 JUDGE VAN DEN WYNGAERT: Can you please proceed, Mr. Rajic.
17 THE INTERPRETER: Microphone, please, for the accused.
18 THE ACCUSED: [Interpretation] Before I start describing to you
19 what happened in that unfortunate war, I would like to thank you for the
20 understanding you have shown by cancelling our previous sentencing
21 hearing, and that was due to the situation that I was experiencing at the
23 I need to inform you that one of the reasons for the condition
24 that I was in at the time was removed. I don't know how things are going
25 to unfold in the future, but we will keep you informed. At any rate, I
1 would like to thank you for your understanding.
2 The proceedings today have been rather long, and since this
3 involves some very serious matters that will determine my fate, you will
4 understand that my concentration is not what it should be. Therefore, I
5 would like to use my notes in order to address you so that I can speak
6 from the heart.
7 Your Honours, thank you for giving me the opportunity in this
8 encounter with the truth to say a few words about myself and the war in
9 which I took part, about the reasons for the war, tragic consequences, and
10 my real role in the events which led me to appear before this Court.
11 I was born in a country where, at the time when I was a child,
12 when I attended school, an impression was created that all of the reasons
13 that had until then caused small peoples living there to fight had ceased.
14 I remember well my thoughts as a young man when I believed that I belonged
15 to this fortunate generation which will never experience war and that all
16 that was needed for a happy future was an honourable and proper attitude
17 to work the society and work.
18 Growing up with such beliefs and growing up in a poor family,
19 while still a high school student, I received a scholarship which enabled
20 me to continue my education. I enrolled into a very prestigious air force
21 academy where I achieved great results in my studies.
22 The profession that I required [as interpreted], that of a very
23 sophisticated radar engineer, opened up great possibilities for me in
24 life. In addition to that, a very brave, very decisive, young woman of a
25 different faith and ethnic background but with similar convictions and
1 values became my wife. We started a family without any prejudice. We
2 were an example for all generations.
3 At the time it seemed that nothing could be better or happier.
4 However, different times came, times when people started splitting along
5 religious or ethnic lines, times that did not allow one a lot of choice.
6 The war broke out with lightning speed and forced me to accept the call
7 given by my friends and neighbours to assist in the defence of our people.
8 To remain with one's nation in difficult times was always considered an
9 honourable choice. Although I had some different plans for myself, this
10 unfortunate development of events determined my fate.
11 The chance to leave that hell decreased on a daily basis and as
12 did their demands to remain on their side, to stand by them. This is how
13 I came to be a member of the worst war whichever took place in that area.
14 The plans of great powers and ambitions of small nations to organise the
15 state of Bosnia and Herzegovina in accordance with their wishes were not
16 compatible. This conflict between great powers and small nations caused
17 violence, and overnight animosity was created, as were alliances which
18 were difficult to understand. Although I was not a political man, I had
19 sufficient background in history in order to know that my Croatian nation
20 which was not very numerous in Bosnia and Herzegovina had nevertheless
21 very deep roots in Bosnia-Herzegovina. Due to the aggression against
22 Bosnia and Herzegovina, our people were exposed to great suffering, and I
23 believe that it was my duty, my clear duty, to remain with my nation.
24 Your Honours, this is my belief to this day.
25 Since I was not active in politics nor did I participate in
1 setting the goals of the war, I believed that the leadership was doing
2 this wisely, the leadership that was entrusted with this. Unfortunately,
3 the time and events which ensued showed that some of the decisions were
4 neither wise nor responsible. The conflict between Croats and Muslims
5 should not have happened. There are witnesses, and I have also provided
6 some evidence to the Prosecution clearly showing that back in the summer
7 of 1992 I took a decisive stand against mad action of Tihomir Blaskic and
8 those who protected him and provoked this conflict in Central Bosnia.
9 Due to my position, I was removed in early 1993 from all positions
10 I held at the time, so that this man with the support of the same people
11 could immediately after that start his second war against Muslims. Having
12 a good reputation in both nations and risking my own life, I played a key
13 role in stopping this completely senseless conflict which could not
14 produce a winner.
15 Your Honours, there are many witnesses who can testify about this,
16 and there are numerous documents which I, through my cooperation, provided
17 to the Prosecution. However, despite of everything, the same people
18 basically deported me from Kiseljak which was my town.
19 In late April of 1993, when visiting some relatives in Kiseljak, I
20 found myself amid crucial events when the same people started their third
21 war against Muslims. It was no longer possible to do anything that could
22 have stopped this senseless plight of people, destruction of their homes
23 and settlements. A scenario was set in motion, a scenario that I knew
24 nothing about, neither did many people that I spoke to.
25 However, based on what we could see, and based on what I could
1 learn, it didn't take much to realise what was going on. There was no
2 double chain of command, nor was there an interruption in communication
3 between those issuing orders and what was going on. Everything unfolded
4 precisely as Blaskic requested it, pursuant his decision or somebody's
5 order. I hope that he will be forced to explain this.
6 The second issue was conceived in the eyes of cowards when they
7 had to avoid their own responsibility and catastrophic effects. Lack of
8 knowledge of what was going on on the ground and due to distance and poor
9 communication, all of these facts point to the direction of lack of
10 sensible leadership. However, as was easy to predict, the fortunes of war
11 changed direction and soon Croats were under an all-out attack. The
12 situation -- the status of Croats living in Central Bosnia became a
13 terrible one. They started making plans for moving out. I also provided
14 evidence about this to the Prosecution.
15 Then the same authors of war remembered me. Knowing that I
16 previously held a high reputation among Muslims and their military
17 commanders, they entrusted me with a role of a negotiator and later on
18 appointed me commander who was tasked with saving whatever was there left
19 to save. It was difficult to negotiate and convince the opposing side
20 that something that wasn't true in fact was true. Fully aware of tragic
21 consequences should the war continue, I did my best to put an end to this
23 Unannounced I went to the headquarters of the army of Bosnia and
24 Herzegovina in Visoko, and at the risk of being imprisoned, once again I
25 attempted to negotiate the end of war. I did everything that they asked
1 me to do, even what they themselves believed to be impossible. However,
2 the spiral of violence had reached such a high level that it was
3 impossible to even discuss a truce. The desire to survive is such that it
4 is difficult to ensure that those who had suffered terrible personal
5 losses will always act reasonably. How to act in compliance with what was
6 permissible under the circumstances which themselves are so impermissible
7 as that war was.
8 Your Honours, I knew that a large number of people that were under
9 my command had suffered a personal loss, a loss of their family members or
10 homes. I knew that there were people with their human faults. However,
11 it was impossible for me to predict how each of them was going to react
12 under war circumstances. I carried out my tasks with the people I had
13 under my command, not the people I wish I had under my command. I never
14 ordered a crime to be committed. I only ordered the implementation of
15 what was necessary in terms of our operations.
16 Within the framework of my possibilities, I sanctioned certain
17 acts straight away, some upon the advice of my associates and the
18 authorities and institutions were recorded with the intention of taking
19 the necessary steps and procedure at a time when this would not be
20 counter-productive for the overall system of defence. I also stood up to
21 lawlessness, very often at the risk of my own life, and this is borne out
22 by the fact that the criminals from my own ethnic group attacked me very
23 often and a number of times tried to abduct me and kill me. There are
24 documents to bear that out and I have put them at the disposal of the
1 I have said all this in order to paint a realistic picture of the
2 situation and the circumstances I had to act in. My departure to Vares
3 did not have as its aim to perpetrate any crime which would create as a
4 response an attack by the BH army on Vares, after which the Croatian
5 people would have to leave that territory.
6 The attack launched by the BH army on Vares lasted for several
7 days. It was already ongoing. The HVO Vares asked for assistance, and in
8 following orders, the orders given to me by my superiors, I did everything
9 in my power to do what I could to save the situation. Unfortunately,
10 certain individuals and groups did not respect the instructions received
11 from their superiors and in that very difficult and unforeseeable
12 development of events a crime took place. Nonetheless, it should not have
13 been a justification for the serious crimes which happened to the Croatian
14 people later on in that same territory.
15 Your Honours, from everything that I have said and that you have
16 heard, I would like to say that I did not order that crime to take place
17 nor did it take place with my knowledge but it did happen. It was
18 affected by individuals and groups to which I was superior. So that is
19 why I am held accountable.
20 Just as a commander can bask in glory for his good acts, the acts
21 that he accomplishes together with his soldiers, so also military ethics
22 and honour make it incumbent upon him to accept responsibility for the
23 evil deeds that were committed.
24 I will accept your sentence and judgement bravely and
25 courageously. I am very sorry for all the victims and suffering that took
1 place in Stupni Do and Vares. Those victims were unnecessary, just as the
2 war between two friendly nations was unnecessary.
3 I should like to apologise to the families of the people who have
4 suffered, expressing my full sympathies for having lost their -- and my
5 regrets for the loss of their nearest and dearest. This comes from the
6 heart, and it is my sincere regret, because I understand the pain and
7 suffering. I know this because the war brought pain and suffering to my
8 own family, as it did to many other families, regardless of their
9 ethnicity. All those victims deserve the truth and justice, and my
10 cooperation with the Prosecution is a contribution to the establishment of
11 the truth and the acceptance of my responsibility of a man who is
12 responsible but not broken, as my former attorney was prone to state.
13 I am convinced that this grain of truth will be recognised and
14 separated from the sea of lies which for years in Bosnia and Herzegovina
15 and the Republic of Croatia have been put about -- about me by individuals
16 and the intelligence services and media who are owned by various
17 proprietors in order to make me keep quiet, to remain silent, and to cover
18 up the truth, to cover up the truth about the policies and politics
19 pursued, policies which have made my own people both victims and
20 aggressors in their own country.
21 Only the truth can help future generations, and I will tell the
22 truth and defend the truth regardless of threats and physical assaults,
23 indeed, which I experienced in the Detention Unit. Since those threats
24 were not only held at me personally but at my entire family and, indeed,
25 my Defence counsel as well, I should like to ask this Honourable Trial
1 Chamber to use its influence to protect them.
2 Those people who are afraid of the truth will stop at nothing and
3 use subtle and dangerous methods which confirms the well-devised
4 intelligence and media campaign launched in the Republic of Croatia
5 against me after I had reached a plea agreement with the Prosecution. How
6 else can one explain the writings of a very influential Croatian weekly
7 which refers to Croatian intelligence services and the lies they put out
8 that I was responsible for the terrible tragedy that took place at the
9 Markale market in Sarajevo and as a threat to my family. If along with
10 this monstrous lie they publish a photograph of my wife with my address
11 and even the licence plates of our family car. Is that not a covered up
12 invitation to the friends and family of those who suffered in that
13 terrible crime to lynch my family in retaliation and revenge. And even
14 more monstrous and worse lies were bandied about about me through a
15 programme that is very popular on Croatia television immediately after the
16 plea agreement was made and immediately after I recognised my guilt.
17 I should like to mention that my former attorney took part in that
18 television programme. I described him earlier on by just two words --
19 just two words. Such tricks that are being played and the fate of
20 individuals in Croatia who cooperated with this Tribunal are a lesson for
21 caution, that I should proceed with care and do everything to see that my
22 family are safe. They are well tried and tested methods of the lackeys of
23 the regime, of poodles and dogs from the intelligence service and security
24 services, of former political clans and present-day political clans who
25 were at the head of fateful events and who had our destiny in our hands in
1 order to protect themselves. They are trying to cover up what actually
2 happened and are doing their best to provide false evidence and proof and
3 accuse others by doing so, and thus belittle this Tribunal before the eyes
4 of the Croatian public as well.
5 I know full well that the Prosecution is undertaking concrete
6 steps to unmask certain false constructions that have been slipped into
7 this Tribunal. And I sincerely hope that they will give me the
8 opportunity of personally taking part in unmasking these untruths.
9 Your Honours, I have done everything in my power to ensure that
10 you arrive at the whole truth. Proof and evidence about everything that
11 happened stand firmly, placed before you in your hands. I believe in your
12 courage and your wisdom in weighing up a just sentence. I pray to God to
13 give me the strength and health to persevere honourably and to go back to
14 my family, which is blameless and who needs me very much.
15 Thank you.
16 JUDGE VAN DEN WYNGAERT: You may sit down, Mr. Rajic.
17 Thank you very much for your statement, Mr. Rajic. I have -- like
18 after your counsel's submission, I have an observation and one, perhaps,
19 two questions.
20 My observation is the same as my observation towards counsel --
21 the points counsel made or some of her points, and it is that also you in
22 your statement have departed on a number of points from the facts as they
23 were agreed in the plea agreement. So this Trial Chamber will only look
24 at those facts and will base its sentencing judgement on those facts.
25 Let me come to two questions. And if you wish, you can ask us to
1 proceed to closed or to private session if you feel that the answer may --
2 that it may better -- that it be better for you to have the answer in
3 closed session.
4 My first question relates to your remorse, and I'm thinking of
5 what counsel just said, that your remorse was first manifested on the
6 moment of your arrest and that as from the very beginning you were willing
7 to express your remorse. And so my question to you is: Why then did it
8 take so long for you to plead guilty? Why haven't you given a sooner
9 effect to that remorse?
10 The second question relates to a question that I have already
11 asked the Prosecutor and that is the possible connection to the procedure
12 that was envisaged at a certain moment in time to send you back for trial
13 to the courts in Bosnia-Herzegovina, which you opposed, if my
14 understanding is correct. And your guilty plea came on a crucial moment
15 in time in those months in 2005. Is there a link or is there no link?
16 These are the two questions I would like you to answer, if you
17 can. You may be seated.
18 THE ACCUSED: [Interpretation] Your Honour, the factual situation
19 which was placed before you and signed by the Defence and by myself and by
20 the Prosecution is the result of a compromise in a clash of arguments on
21 both sides.
22 What I am saying here today, I do not wish to challenge and
23 contest the factual basis which was signed and which is the document that
24 you have before you. I wanted to take advantage of this opportunity to
25 talk about a broader context of events and my special role therein, and I
1 do not think that there is anything bad in that.
2 Since my case -- or rather, since I was a link in the chain, a
3 military chain of command as it is linked to my superiors and the people
4 before me, I wanted to briefly depict my role in everything that happened.
5 So I wanted to show you what the situation was like, what life was like.
6 Secondly, as far as my remorse is concerned, my remorse at this
7 moment, at this point in time. I would like to tell you that I did not
8 wish to escape the truth, not from the very first day. I informed my
9 superiors realistically about everything that was going on. However, as
10 you know, it was due to different interests that prevailed at that time
11 and decided -- matters that were decided upon by much higher authorities.
12 They asked me to behave in the way that I behaved. I had no choice in the
13 matter. I was asked, and the Prosecution knows this full well and has
14 received proof and evidence of that, that I was asked to behave in the
15 manner in which I behaved. So it wasn't my own personal choice, either to
16 be a fugitive, to hide, or to change my name.
17 The second point is this: As soon as the indictment against me
18 was raised, I asked - and there is written evidence about that - to be
19 allowed to prepare my defence in order to appear before this Tribunal. I
20 was told that they would help me -- that I would receive help, but that I
21 should defend official policy that came from Zagreb. And there is
22 evidence and proof of that as well. I showed these documents to the
23 Prosecution. I was not able to agree to that. I was not able to do that.
24 JUDGE VAN DEN WYNGAERT: Do you wish to go into private session?
25 No. Okay. Sorry to interrupt.
1 THE ACCUSED: As far as I'm concerned, there's no need for us to
2 go into private session.
3 As I was saying, I did not agree to do that. I said that I would
4 defend myself and nobody else, because I am the person accused. As to the
5 other people who were accused, they could make their own choices and
6 defend whom they desire.
7 So faced with a situation of this kind, I was threatened. My
8 preparation to come before this Tribunal was threatened. So they tried to
9 manipulate me in order to open up the possibility for another accused,
10 Mr. Blaskic specifically, should go through his legal proceedings for his
11 trial to finish, because I -- they knew that I would not cover up the
12 truth. I would not cover up the actual situation and truth about what had
13 happened. They knew that, and they knew that this could be to the
14 detriment of Mr. Blaskic, and that is why I entered into a system whereby
15 I was manipulated. But once I came to realise that there were things
16 going on behind the scenes in order to save certain individuals at the
17 expense of others, I became active. I collected evidence and proof, and I
18 was arrested at the point in time when I had no more interest in hiding in
19 being a fugitive. So that's the truth of it.
20 So my remorse has been present from day one, but they tried to
21 manipulate me and I wasn't allowed to speak out and tell the truth because
22 this would not have been in the interests of certain institutions or
23 individuals. It would not have been to their advantage had I done so.
24 And now can you repeat your third question, please, I've forgotten
1 JUDGE VAN DEN WYNGAERT: The third question was whether there was
2 a connection between your guilty plea and your wish not to be sent back to
3 Bosnia and Herzegovina for a trial there, which was considered last year
4 as from July by the Prosecution, which was put before the Referral
5 Chamber. And then you entered your guilty plea, and after that the
6 Prosecution decided to suspend the proceeding in attendance of the
7 judgement on the sentencing.
8 So my question is: Is there a linkage between the two, or is this
9 just a coincidence?
10 THE ACCUSED: [Interpretation] No, no. There is no coincidence and
11 no link. There is no link. Because I expressed the desire to speak to
12 the Prosecution as soon as I came to The Hague, but Attorney Olujic tried
13 to obstruct that wish of mine.
14 And before discussions started about my possible return to
15 Sarajevo, I had a conversation with the Prosecution with the help of
16 Mrs. Kosta. Those negotiations had been going on for quite some time and
17 were almost nearing an end. All that remained to be done was to decide
18 upon certain points with respect to the final version of the plea
19 agreement, nothing more than that. So since the gentlemen of the
20 Prosecution were brought in a situation from higher-up institutions to
21 make a schedule of where people would be sent to complete their trials,
22 they entered into a formal procedure without my knowledge. So from day
23 one - and this can be borne out by Mr. Scott, I'm sure - from day one, I
24 never linked the two events, I never made any connection between those two
25 events. And I would like to appeal and call upon Mr. Scott to say that
1 what I have been saying is indeed the truth.
2 JUDGE VAN DEN WYNGAERT: Thank you for that, Mr. Rajic.
3 Judge Nosworthy.
4 JUDGE NOSWORTHY: Yes. You have said on more than one occasion
5 during the course of your statement and in answer to questions that you
6 were forced and ordered to commit the acts that you committed or you've
7 pleaded guilty to, certainly, and to participate in the cover-up.
8 Now, what would have been the consequences of your not committing
9 the acts and not participating in the cover-up?
10 THE ACCUSED: [Interpretation] Right now it is going to be
11 difficult to explain all of the motives which lead to these things
13 However, at the time as this was unfolding, as they started the
14 game of cover-up, I was ordered and I was told that this was in the
15 interest of higher aims. I was clearly told that they knew I was not
16 responsible for what had happened. However, they had a different role for
17 me in mind. They wanted me --
18 JUDGE NOSWORTHY: I'm sorry, but I'm asking you what would have
19 happened to you, essentially. What would the consequences have been had
20 you not done what you were being requested to do. If you could try and
21 answer that for me. I'm sorry to stop you, but please do go directly to
22 what I asked you.
23 THE ACCUSED: [Interpretation] I would have been removed from the
24 HVO, disqualified, and this would have endangered my own life and that of
25 my family. That was what the circumstances were at the time. Our fate
1 would have been very questionable.
2 JUDGE NOSWORTHY: Thank you very much.
3 Now, my next question is that you spoke of having married somebody
4 of a different ethnic group and religion. What ethnic group and religion
5 was your wife, or is she?
6 THE ACCUSED: [Interpretation] Fortunately she is still my wife and
7 the mother of our three children, and we are expecting the fourth child.
8 She hails from Macedonia. I married her while I served in the JNA in
10 JUDGE NOSWORTHY: My next question to you is that you had said
11 that your chance to leave hell decreased. Were you referring to your
12 participation in the war as hell, or what were you referring to? Could
13 you just briefly tell us a little bit more about this hell?
14 THE ACCUSED: [Interpretation] My profession was not of a military
15 nature. I had some other plans for myself because my education allowed me
16 to find job in some other fields outside of Bosnia and Herzegovina.
17 However, as you know yourself, the entire Bosnia transformed into
18 hell very quickly. All of the roads were very soon closed and obstructed
19 and it was difficult to leave it, especially leave it with your entire
21 JUDGE NOSWORTHY: Now, you mentioned that a number of the persons
22 serving under you, under your command, had suffered personal losses as a
23 result of the war. What about you, yourself? Had you suffered any
24 personal losses or tragedies as a result of the war that you engaged in
25 or -- please tell the Trial Chamber.
1 THE ACCUSED: [Interpretation] Yes. My oldest brother lost his
2 son, his only child, his only son. My younger brother became a disabled
3 person. He has a 60 per cent disability. My other close relative lost
4 his child, a minor at the time.
5 In addition to that, in my more distant family there were other
6 victims. So there is practically not a household within my whole family
7 that has not suffered significant losses.
8 JUDGE NOSWORTHY: Now, I'm going to ask you to be very pointed
9 when you're responding, and I want to find out from you, looking back at
10 your childhood, did any traumatic incidents took place or anything happen
11 during the course of your childhood, your formative years, your years as a
12 young person before you became an adult, that could have impacted
13 negatively on how you conducted yourself as an adult in later years and,
14 more particularly, how you responded during the war in the command of the
15 persons under you or in carrying out your duties as a man-of-war?
16 Please be very pointed and get to the issue that I place before
18 THE ACCUSED: [Interpretation] I come from a traditional and
19 patriarchal and a very poor family.
20 As for a specific event from my childhood, I do not remember one.
21 As a boy, as a young man, and later as an officer and an adult I always
22 received praise and commendation for all of my achievements, both at
23 school and at work.
24 A war is something that no prior life can prepare you for. No
25 schooling can prepare you for war. I would like you to understand that.
1 War puts you in a situation where you have to make split-second decisions,
2 and you usually have to choose out of several evils. You normally never
3 have to choose between good and evil.
4 JUDGE NOSWORTHY: Thank you very much, Mr. Rajic. No further
6 JUDGE VAN DEN WYNGAERT: Judge Hoepfel.
7 JUDGE HOEPFEL: Thank you.
8 Just to have the picture complete, this one question. Although
9 you were just saying no schooling can prepare you for war, I still would
10 like to know about your education. Could you give us a short overview.
11 It was mentioned that you attended secondary school. Where and how long
12 and what other education did you enjoy?
13 THE ACCUSED: [Interpretation] I completed secondary school for
14 mechanical technicians in Sarajevo. I was an excellent student and I
15 graduated with all straight A's.
16 Following that, as a person holding military scholarship, I
17 enrolled into air force academy department for computers. That was the
18 most difficult specialty within the air force academy. I also graduated
19 as top in my class. I was the best student in my class.
20 I was an exemplary officer later on when I served in the JNA. My
21 profession also allowed me to work as a flight controller in civilian
22 aviation, which was my original plan had I succeeded in getting myself out
23 of the hell of war which engulfed Bosnia and Herzegovina.
24 My profession had nothing to do with the war. I wasn't a
25 specialist needed in war. My profession is more of a civilian nature,
1 that of an air flight controller. That was my occupation.
2 JUDGE HOEPFEL: Thank you.
3 JUDGE VAN DEN WYNGAERT: Thank you very much. We are just on
4 schedule. I think because we must close this session at 7.00. So
5 according to our schedule, it is now for the Prosecution to make some
6 closing remarks, five minutes maximum, and the same amount of time for the
8 Mr. Scott.
9 MR. SCOTT: Thank you, Your Honours. I'll try to move quite
10 quickly in effect but hopefully not speak too fast for the translation.
11 There are two cases in response to the question that the Judges --
12 Your Honours raised some time ago now about the aggravating factor. In
13 the Celebici case, the appeal judgement, it's called the Delalic case but
14 referenced often as the Celebici case, did in fact indicate that where an
15 individual has been convicted of 7(1), the abuse of their role as a
16 superior is, indeed, an aggravating factor.
17 And more recently in the Stakic judgement of the 31st of July,
18 2003, in paragraph 9.12 indicates that, in fact -- and it says this: "If
19 a conviction is entered under Article 7(1) only, the accused's position as
20 a superior when proved beyond a reasonable doubt must be taken into
21 account as an aggravating factor."
22 So we bring those two items to the Court's attention. Also,
23 quickly, I do -- I was able to locate and can provide to the Chamber after
24 the hearing in the interests of time the copy of the document that
25 Mr. Rajic signed on the 19th of January, 1996, indicating his knowledge of
1 the charges in the pending indictment against him. I have that here.
2 Also I have and I will give to the Registry a copy of the CD of
3 the video that we played. So of course we will make that part of the
4 record, and also I have a copy for each of the Judges, if you would like
6 Very quickly, on the issue of the defenders in Stupni Do, let
7 there be no mistake about that, the Prosecution position has never been
8 that Stupni Do was a completely undefended village. And I believe we took
9 pains in the factual basis to make sure, such as in paragraph 20, I
10 believe, indicating exactly what the situation were. There were indeed
11 defenders in the village, and I just -- forgive my artwork, but just to
12 make the point. If this is the village and you put positions around the
13 village facing outward, that is a defensive position. You're defending
14 the village. If you surround a village and your positions are doing that,
15 that is an offensive position.
16 Stupni Do was defended. There were people there who did the best
17 they could to keep these terrible things from happening, but unfortunately
18 they couldn't stop it.
19 Point number 2 -- we've never said that there were only six
20 combatants in the village. What we have said was that we think -- we
21 consider in our calculations that of the people killed, six might have
22 been considered to be combatants, but not that there were only six
23 combatants altogether, defenders, if you will, in the village. So to
24 clarify that.
25 Mr. Rajic has indicated that he, in fact, prosecuted people when
1 misconduct came to his attention. Your Honours may recall that we have
2 responded to that in our supplemental brief dated the 6th of March, 2006,
3 and in the interests of time I will not repeat our arguments, but we
4 provided the Chamber some additional documentation contrary to that
5 allegation in our filing of the 6th of March, 2006.
6 In connection with -- not perhaps a major point, but in connection
7 with the bodies not even being proved to be individuals but perhaps were
8 animals, all of these bodies, or at least those that could be recovered,
9 were in fact autopsied by professionals after the investigation -- as a
10 part of the investigation. They were identified as human remains.
11 I'm afraid that as to some of what Mr. Rajic has said this
12 afternoon about his involvement during the war, it's probably -- it's not
13 that Mr. -- it's not the Ivica Rajic that was known to the Muslims in the
14 Kiseljak region in 1993. And I would just in terms of time briefly refer
15 the Chamber to the Kordic trial judgement which details the crimes
16 committed throughout the Kiseljak region by Mr. Rajic's soldiers in
17 June -- in particular in June of 1993.
18 In terms of the mention about the cooperation that was made known
19 to me or offered to me about the Blaskic case, Your Honours, all I can say
20 is that there were times with Mr. Rajic's earlier counsel, previous
21 counsel, there were long periods of complete non-communication. There
22 were also times when certain information was offered to the Prosecution,
23 if you will, on terms that were not acceptable to us. We simply said we
24 were not interested in talking to them on that basis, and it was only
25 until some many months later that, in fact, we have gotten to where we
1 were. So I don't want there to be any misunderstanding about that.
2 In terms of the 11 bis linkage, Mr. Rajic has asked me to confirm
3 his account, and on that point I'm happy to say that, yes, our position on
4 that is the same. There was no linkage except, as I said, we were on
5 somewhat parallel tracks. So I will confirm and I think there's no
6 disagreement on that.
7 Let me conclude, Your Honours, with this final statement. As we
8 said at the beginning, this Trial Chamber must impose a sentence upon the
9 accused for the commission of crimes of the utmost gravity in which he as
10 the commander was closely and substantially involved. The Tribunal must
11 once again send the message that the Latin saying "in times of war the law
12 falls silent" is no longer, if it ever was, international law, that
13 criminals, even during war, indeed especially during war, must be held
15 For all the reasons discussed, it still remains the Prosecution
16 recommendation and our request to this Chamber and to your Honourable
17 Judges that Mr. Rajic be sentenced to a total imprisonment of 15 years'
18 imprisonment, taking into account about the aggravating and the mitigating
20 My final comment will be this, taking again from one of the
21 victims. Quite ironic in a way when you hear these words, they seem quite
22 gentle and quite soft in contrast to what happened on the 23rd of October.
23 "At about 2.00 of the night" -- they mean 2.00 the next morning,
24 in the middle of the night, on the morning of the -- 2.00 in the morning
25 of the 24th -- "it was decided to leave the basement, so all of us left
1 the basement. Outside it had stopped raining. The dark of the night was
2 lightened by the flames that were eating the timber of our homes. The
3 silence of the night would every now and then be broken by the crackle of
4 the burning wood or the sound of ammunition going off on catching fire."
5 How quickly that silence must have been replaced by crying.
6 Thank you, Your Honours.
7 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Scott.
8 Ms. Kosta, five minutes. Do I take it that you don't want to make
9 a closing -- okay. Thank you very much.
10 Let me then turn to Mr. Rajic and ask him whether he has something
11 to add.
12 Ms. Kosta -- oh, I'm sorry.
13 MS. KOSTA: [Microphone not activated]
14 THE INTERPRETER: Microphone, please, for counsel.
15 MS. KOSTA: [Interpretation] I wanted to say that I was still
16 listening to the interpretation. I was listening to the interpretation,
17 so I was unable to respond to your invitation.
18 I would just like to say a few words, and then I would like to
19 yield the floor to my client so that he can also address you. As the
20 Prosecution stated that they provided valid evidence attempting to
21 convince you that a 15-year sentence is fully appropriate, I also believe
22 that within its ability the Defence provided all available documentation
23 to assure you that an appropriate sentence in this case would be a 12-year
24 sentence, in view of the status of my client at the time when the crime
25 was committed and the consequences. I would also like for you to apply
1 the principle of mens rea.
2 I will now conclude my final address and say that the accused is
3 faced himself -- and if this Trial Chamber does its job, then this
4 sentence will be an exemplary sentence for the whole world. And I think
5 that through his words and actions, my client has shown to you that it is
6 human to err but it is divine to forgive. Thank you.
7 JUDGE VAN DEN WYNGAERT: Thank you, Mrs. Kosta.
8 Mr. Rajic, do you want to add something at this point in time?
9 THE ACCUSED: [Interpretation] I, who participated in all of these
10 events, am sometimes at a loss. It is difficult for me to explain the
11 events which took place in my immediate vicinity. It is also hard in a
12 short space of time to be convincing, even though I provided substantial
13 evidence to Mr. Scott and the Prosecution about my conduct and my attitude
14 towards Muslims, both in Kiseljak and elsewhere in Bosnia and Herzegovina,
15 as well as my attitude toward other ethnic groups. Once again, I regret
16 that there were any victims in the war. I wish there had been no war and
17 that I had not participated in that war, the war which took place in
18 Bosnia and Herzegovina, that type of war. There is no military school
19 that can prepare you for that type of war, and this is what I wanted to
20 make clear in the courtroom. This is something that defies description,
21 something that I will be unable to understand for the rest of my life.
22 Thank you. That's all I have to say.
23 JUDGE VAN DEN WYNGAERT: Thank you, Mr. Rajic, you may sit down.
24 This brings this session to an end. The Trial Chamber will now
25 adjourn and we will deliberate and give this judgement in due course. We
1 can't say exactly when, but we will do it at the earliest possible
2 moment. Thank you very much.
3 --- Whereupon the Sentencing Hearing
4 adjourned at 6.52 p.m.