1 Wednesday, 4 May 2011
2 [Rule 98 bis Judgement]
3 [Open session]
4 --- Upon commencing at 9.02 a.m.
5 [The accused entered court]
6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, kindly call the
8 THE REGISTRAR: Thank you and good morning, Your Honours. This
9 is case number IT-03-67-T, the Prosecutor versus Vojislav Seselj.
10 JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.
11 Today is Wednesday, the 4th of May, 2011. Let me first greet the
12 prominent OTP representatives who attend the hearing for the oral
13 decision by the Trial Chamber under Rule 98 bis. Let me also greet
14 Mr. Seselj and all the people assisting us, the Registrar, the usher, the
15 security officer, and any other people assisting us.
16 Today I shall start with the reading out of the Rule 98 bis
17 decision, and then I will continue with a partially dissenting opinion of
19 We are to sit in the morning today. We're going to start right
20 now, and we shall more likely than not continue into the afternoon. If I
21 were not to be finished with reading out the decision, we can continue
22 tomorrow afternoon, because I have over 120 pages to read. I shall
24 The Trial Chamber is going to deliver its Rule 98 bis decision,
25 oral decision. Firstly, the Trial Chamber will recall the procedural
1 background and then will move on to the law applicable under Rule 98 bis.
2 Thirdly, it will recall the counts and modes of responsibility as alleged
3 in the indictment. Fourthly, it will recall the elements of the crimes
4 and set out the law applicable to instigating as a mode of participation
5 in crimes. In a fifth part, it will give samples of evidence it has
6 heard that are enough and capable of supporting at this stage of the
7 proceedings to sustain the allegations as alleged in the counts, and then
8 the Trial Chamber will review the responsibility of the accused for
9 instigating to crimes as alleged in the indictment through his speeches.
10 First, procedural background. The Prosecution case started on
11 the 7th of November, 2009 and closed with the testimony of
12 Witness Nenad Jovic on the 7th of July, 2010. Further on, the
13 Prosecution would not rest its case until the Trial Chamber had ruled on
14 all of their pending motions, including various applications for the
15 testimony of witnesses, including VS-026, considered as being unavailable
16 for health reasons following a first expert medical report. The Trial
17 Chamber decided to have VS-026 examined by a medical expert and his
18 opinion confirms the first, in a report filed on the 26th of November,
19 2010. The Trial Chamber then ruled all of the pending motions in
20 December 2010, on all the motions that might have an impact on the
21 Rule 98 bis proceedings by handing down 25 decisions.
22 The Trial Chamber then had to wait for the filing of the expert
23 report as to the authenticity of the Mladic notebooks filed on the
24 10th of January, 2010, its translation into B/C/S and the end of the time
25 limit for the accused to make submissions, if any, as to the motion to
1 admit the notebooks. At the administrative hearing of the 18th of
2 January, 2011, the accused informed the Trial Chamber that it would -- he
3 would make submissions under Rule 98 bis. The Trial Chamber, taking into
4 account the time needed to rule on the motions for review of the
5 decisions issued in December filed by the Prosecution between the 28th of
6 December and the 21st of January, 2011, issued a Scheduling Order on the
7 25th of January for the Rule 98 bis proceedings to be held on the 7th,
8 8th, and 9th of March, 2011.
9 On the 7th of March, 2011, the accused made his oral submissions
10 under Rule 98 bis. He spoke again on the 9th of March in order to reply
11 to the Prosecution specifically. The accused denied having committed,
12 ordered, planned, aided and abetted or instigated any of the crimes
13 alleged in the indictment. He also challenges and denies having
14 participated in the crimes as a member of a joint criminal enterprise.
15 More specifically, the accused challenged the existence of specific
16 crimes as alleged in the indictment under various counts, as well as
17 their credibility of numerous testimony and other Prosecution evidence.
18 Furthermore, he claims that the Prosecution failed to lead any evidence
19 as to the speeches in Vukovar, Mali Zvornik, and Hrtkovci as alleged in
20 the indictment, inasmuch as he did not give such speeches.
21 He further argues that if certain crimes may have been committed,
22 there is no evidence that the crimes should be attributed to the
23 volunteers recruited by his party, the Serbian Radical Party, hereinafter
24 known as SRS. He states that he can by no means be held responsible for
25 crimes allegedly committed by such volunteers since the accused was not
1 their superior within the JNA in which their volunteers were serving.
2 In conclusion, the accused stressed that it was impossible to
3 prove beyond any reasonable doubt that criminal acts can be attributed to
4 him, and he is of the view that the Trial Chamber shall therefore have to
5 enter a judgement of acquittal on all counts in the indictment.
6 The Prosecution responded to the accused's submissions at the
7 hearings of the 8th and 9th of March, 2011. It drew the attention of the
8 Chamber on various testimony and evidence admitted by the Trial Chamber
9 which is such that they would not be capable of sustaining a decision of
11 Law applicable further to Rule 98 bis.
12 Under Rule 98 bis, once the Prosecution case is closed, the Trial
13 Chamber must, by oral decision and after hearing oral submissions by the
14 parties, enter a decision of acquittal as to any count for which there is
15 no evidence capable of sustaining a conviction. Since the 8th of
16 December, 2004, when Rule 98 bis was last amended. A Trial Chamber is
17 only expected to determine whether the Prosecution has adduced enough
18 evidence for each count taken as a whole as opposed to all the various
19 charges making up that particular count. Rule 98 bis was amended in
20 order to facilitate the proceedings and to provide for a more expeditious
21 trial. First of all, because it moved from written to an oral type of
22 proceedings, and also on focusing on all of the counts rather than on
23 every single crime alleged in each and every count of the indictment.
24 Therefore, since the latest amendment of Rule 98 bis, the
25 Trial Chamber in its majority, Judge Antonetti dissenting, deems that it
1 can only enter a decision of acquittal on a single count as a whole, and
2 this is, by the way, in keeping with the practice applied after
3 Rule 98 bis was amended. It was adopted and applied by Trial Chambers in
4 the following cases, among others: Martic, Mrksic, Prlic and Gotovina.
5 The fact that the Trial Chamber is under the obligation to enter
6 a decision of acquittal on the whole count gives the Defence the
7 possibility not to answer to all of the allegations contained in a count
8 for which it feels that the Prosecution failed to lead any evidence.
9 Under Rule 98 bis, the Trial Chamber needs to determine whether there is
10 enough evidence for a reasonable trier of fact to enter a judgement of
11 conviction beyond any reasonable doubt. At this stage, the Trial Chamber
12 is not to establish whether it would enter a conviction at the end of the
13 trial proceedings but whether it could do so. It should be stressed that
14 at the Rule 98 bis stage of the proceedings, according to the Rules, the
15 Trial Chamber will first carry out a preliminary examination of the
16 evidence adduced in the Prosecution case in order to ascertain whether
17 the evidence is capable of sustaining a conviction. This is a
18 preliminary examination which is different from the analysis carried out
19 at the end of the trial proceedings. Indeed, at the end of the trial, a
20 Trial Chamber must look in depth into the entire case file to examine
21 every evidence on record, be it Prosecution or Defence evidence in order
22 to assess their respective probative value.
23 In order to carry out this first assessment at this stage of the
24 proceedings under Rule 98 bis, the Trial Chamber must factor in all the
25 evidence adduced during the Prosecution case. It is not to make a
1 selection among the Prosecution evidence. The evidence favourable to the
2 accused may only be used to assess whether a piece of evidence is clearly
3 unreliable and incapable of belief. As a consequence, a motion for
4 acquittal will be granted only when there is no evidence capable of
5 sustaining a conviction or when there is one or several pieces of
6 evidence, but even when taken at its highest, this evidence the
7 Trial Chamber could not sustain or decide for a conviction because the
8 only evidence is clearly unreliable and incapable of belief.
9 The Trial Chamber further recalls that it will only give some
10 examples of evidence. The fact that specific evidence has -- have been
11 taken into account for the purposes of this instant decision does not
12 mean that the Trial Chamber will assess them in the same way at the final
13 stage of the judgement. Equally, the fact that specific evidence may not
14 be mentioned in this decision does not mean that it will not be taken
15 into account and assessed accordingly at the end of the judgement, in the
16 judgement stage. Furthermore, whilst the accused is charged under
17 various modes of responsibilities, it is sufficient for the majority of
18 the Trial Chamber Judges, Judge Antonetti, myself, dissenting, it is
19 sufficient to establish that there is evidence supporting one single mode
20 of responsibility alleged in the indictment to dismiss a motion for
22 Therefore, if a Trial Chamber accepts one of the modes of
23 responsibility at this stage of the proceeding does not mean that the
24 Trial Chamber ruled out the other modes of responsibilities --
25 responsibility alleged in the indictment. Thus a Trial Chamber may, when
1 it issues its final judgement choose another mode of responsibility that
2 was mentioned at the Rule 98 bis proceedings.
3 The Trial Chamber further stresses that it is for the
4 Trial Chamber to assess the type of responsibility to attribute to the
5 accused on the basis of the indictment and on the basis of the trial
6 record as has already been affirmed and confirmed by the Tribunal in
7 paragraph 248 of the Kvocka judgement.
8 Finally, the Trial Chamber wants to make it clear that there is
9 no contradiction between the dismissal of a Rule 98 bis motion and a
10 decision of acquittal at the end of the trial proceedings. This applies
11 even if the Defence has not adduced any evidence.
12 Third section, overview of the counts and modes of responsibility
13 as alleged in the indictment.
14 Before I continue, I think I should slow down so that the
15 interpreters can keep pace with me and do their job properly. I'm
16 looking at the English transcript on the screen, and I'm listening to the
17 B/C/S booth. So far, so good.
18 Third section, overview of the counts and modes of responsibility
19 as alleged in the indictment.
20 The Trial Chamber recalls that in the third amended indictment
21 filed on the 7th of December, 2007, herein before and hereinafter known
22 as the indictment, the Prosecution charges the accused with crimes
23 referred to in the Statute of the Tribunal, namely crimes against
24 humanity and violations of the laws or customs of war.
25 The charges alleged in the indictment against the accused include
1 the following nine counts:
2 Count 1, persecution on political, racial, or religious grounds,
3 a crime against humanity.
4 Count 4, murder, a violation of the laws or customs of war.
5 Count 8, torture, a violation of the laws or customs of war.
6 Count 9, cruel treatment, a violation of the laws or customs of
8 Count 10, deportation, a crime against humanity.
9 Count 11, forcible transfer, inhumane act, a crime against
11 Count 12, wanton destruction of villages or devastation not
12 justified by military necessity, a violation of the laws or customs of
14 Count 13, destruction or wilful damage to institutions dedicated
15 to religion or education, a violation of the laws or customs of war.
16 Counted 14, plunder of public or private property, a violation of
17 the laws or customs of war.
18 The Trial Chamber will examine these counts in two groups as to
19 whether they are alleged as crimes against humanity or as war crimes.
20 The crimes the accused is charged with in the indictment concern
21 the municipalities of Vukovar in Croatia, Zvornik, Sarajevo, Mostar,
22 Nevesinje in Bosnia and Herzegovina, and Hrtkovci in Vojvodina in Serbia.
23 The accused is charged on the basis of his individual criminal
24 responsibility under all the forms of responsibility referred to in
25 Article 7(1) of the Statute of the Tribunal. For all the crimes alleged
1 in the indictment, under paragraph 5 of the indictment, it reads as
2 follows -- I'm going to read out paragraph 5 of the indictment, which is
3 a major one:
4 "Vojislav Seselj is individually criminally responsible for the
5 crimes referred to in Articles 3 and 5 of the Statute of the Tribunal and
6 described in this indictment, which he planned, ordered, instigated,
7 committed or otherwise aided and abetted in the planning, preparation, or
8 execution thereof.
9 "By using the word 'committed,' the Prosecution does not intend
10 to suggest that the accused physically committed all of the crimes
11 charged personally. Physical commitment is pleaded only in relation to
12 the charges of persecutions by direct and public ethnic denigration with
13 respect to the accused's speeches in Vukovar, Mali Zvornik, and Hrtkovci,
14 and by deportation and forcible transfer with respect to his speech in
15 Hrtkovci and in relation to the charges of deportation and inhumane acts,
16 forcible transfer with respect to his speech in Hrtkovci.
17 "In this indictment, 'committed' includes the participation of
18 Vojislav Seselj as a co-perpetrator in a joint criminal enterprise. By
19 using the word 'instigated,' the Prosecution charges that the speeches,
20 communications, acts and/or omissions of Vojislav Seselj contributed to
21 the perpetrators' decision to commit the crimes alleged."
22 So this was the entire paragraph 5 of the indictment.
23 The Trial Chamber recalls that if the accused denied any
24 responsibility under any mode of responsibility as alleged in the
25 indictment, this decision will endeavour for the sake of judicial economy
1 to review the evidence related to the alleged responsibility of the
2 accused solely as regards instigation. Indeed, as we already recalled,
3 in the view of the Trial Chamber's majority, because I have a dissenting
4 opinion, it is enough for the purposes of the Rule 98 bis proceedings to
5 establish that there is evidence capable of sustaining one single form of
6 responsibility alleged in the indictment to dismiss a motion for
7 acquittal. This does not mean, however, that the Trial Chamber may not
8 later on rule as to the other modes of responsibility.
9 Fourth section, overview of the elements of crimes and the law
10 applicable to instigation as a mode of liability.
11 With regard to the elements of crimes, first, the Trial Chamber
12 recalls that according to Articles 2, 4, and 5 of the Statute, crimes of
13 war, as well as crimes against humanity occur in the context of a
14 domestic or international armed conflict.
15 Secondly, the Trial Chamber recalls that to constitute a crime
16 against humanity, the actions of an accused must be part of a generalised
17 or systematic attack directed against a civilian population -- any
18 civilian population. These two qualifiers are alternative and not
19 cumulative. The qualifier "generalisee" means that the attack was
20 carried out in a very large scale and resulted in a great number of
21 victims, whereas the qualifier "systematic" shows the organised nature of
22 these violent acts and the fact that their randomness is improbable. The
23 systematic nature is recognised through the deliberate and regular
24 repetition of similar criminal behaviours.
25 Thirdly, regarding the actus reus of the crimes, it will be
1 reviewed later by the Trial Chamber when the Trial Chamber addresses the
2 counts alleged in the indictment.
3 Fourthly, the Trial Chamber recalls that the mens rea for each
4 crime alleged in all nine counts is made up of the criminal intent of the
5 perpetrator of the crime, except for the crime of persecution, where in
6 addition, in order for the responsibility of an accused to be engaged,
7 there is need for a dolus specialis, i.e., a specific intent to
8 discriminate on political, racial, or religious grounds. The
9 Trial Chamber will revisit this later on when it analyses count number 1.
10 Section B, regarding the law applicable to instigation as a mode
11 of liability.
12 For a Trial Chamber to conclude that there has been instigation
13 to commit crimes it must make sure that three conditions are met. First,
14 a condition relating to the elements of instigation; secondly, a
15 condition relating to the intent of the instigator; and thirdly, a
16 condition relating to the nexus between the instigation and the crime.
17 First, regarding the elements of instigation to the commission of
18 crimes. The case law of this Tribunal, notably paragraph 27 of the
19 Kordic and Cerkez appeal judgement, defined "instigation" as, I quote:
20 "Provoking someone into committing an offence."
21 The case law of the ICTR, notably in paragraph 456 of the
22 Ndindabahizi judgement defined instigation as "pushing," I quote,
23 "pushing or encouraging someone else, either verbally or through any
24 other means of communication to commit a crime with the intent of this
25 crime to be committed."
1 Therefore, as mentioned in paragraph 271 of the Oric judgement,
2 in order to have an actus reus that would make up instigation, the
3 instigator must have influenced the physical perpetrator of the crime by
4 requesting him to do so, by pushing him to do so, or by making sure by
5 some way that he would actually commit the crime. However, this did not
6 presuppose necessarily that the instigator would have originated the
7 idea, would have designed the initial plan in order to commit the crime.
8 Even if the main perpetrator already envisaged the commission of the
9 crime, the fact that he actually carried out his intent might come from
10 having been persuaded or asked to do so by the instigator. More
11 specifically regarding how the main perpetrator was influenced, there is
12 no need for the instigation to commit crimes referred to by the Statute
13 be public or direct as it is the case for the direct and public
14 instigation to commit genocide, which is a crime in itself and not a mode
15 of liability.
16 As indicated in paragraph 273 of the Oric judgement, the
17 influence coming from instigation can be exerted directly or through
18 intermediaries, and this on various amount of people as long as the
19 instigator has the required mens rea. There is no need for the
20 instigator to be on the scene of crime as stated by the Appeals Chamber
21 of the ICTR in paragraph 660 of the Nahimana appeals judgement, which is
22 more known as the Media appeals judgement.
23 Secondly, regarding the mens rea of the instigator. The
24 Trial Chamber must demonstrate that the -- it is important to demonstrate
25 that the accused had the intent to provoke or to induce the perpetration
1 of a crime or that he was well aware that there was a real probability
2 that, after his instigation, one or more crimes would be committed, in
3 the single or in the plural. In this respect, the Appeals Chamber in
4 paragraph 32 of the Kordic and Cerkez appeals judgement indicated that
5 anyone provoking another person into committing an act or an omission
6 while being aware that there is a real probability that a crime could be
7 committed during the execution of this -- of this instigation has the
8 required mens rea to be held responsible under Article 7(1) of the
9 Statute. The fact of instigating while being fully aware of this
10 probability must be considered as accepting the crime that will result.
11 The Trial Chamber, however, notes that for the crimes alleged in
12 counts 4, 8, 9, 10, 11, 12, 13 and 14 as charged in the indictment, it
13 will be sufficient to prove that the accused was fully aware that there
14 was a real probability that after the instigation one of these crimes
15 would be committed. However, regarding the crime alleged in count 1,
16 there is need also to verify whether the accused had the intention to
17 provoke or to induce the commission of persecution as a crime aimed at
18 achieving the specific goal of discriminating on political, racial, or
19 religious grounds.
20 Finally, the Trial Chamber notes that there must -- that a
21 difference must be made between the intent and the personal motivation.
22 As stated by the Appeals Chamber in paragraph 102 of the
23 Krnojelac appeals judgement, the existence of a personal motivation does
24 not prevent the perpetrator of a crime from being -- from having the
25 necessary mens rea.
1 Thirdly, regarding the existence of a nexus between instigation
2 and commission of the crime. As stated by the Appeals Chamber in
3 paragraph 27 of the Kordic and Cerkez appeals judgement, there is no need
4 to prove that the crime would not have been committed without the
5 involvement of the accused. It is sufficient to show that instigation
6 was a significant element in the behaviour of the physical perpetrator of
7 the crimes.
8 Similarly, in paragraph 660 of the Media appeals judgement, the
9 Appeals Chamber of the ICTR specified that in order to have instigation
10 to commit a crime, it is important to establish that the actions charged
11 substantially contributed to the crime being committed. However, it is
12 not necessary for these actions to have been a sine qua non condition of
13 the commission of the said crime.
14 Furthermore, the Appeals Chamber of the ICTR, in paragraph 257 of
15 the Semanza appeals judgement specified that it was not necessary to show
16 or demonstrate that the accused had an effective control over the
17 perpetrator of the crime.
18 In paragraphs 238 and 296 of this appeals judgement, the
19 Appeals Chamber stated that neither was it necessary for the indictment
20 to state the exact provocative words spoken by the accused or to provide
21 any evidence of it to establish instigation to commit crimes.
22 Finally, in paragraph 368 of the Nchamihigo judgement, the ICTR
23 indicated that the time period between instigation and commission of a
24 crime is also a relevant criteria to determine the substantial
25 contribution to instigation of commission of a crime.
1 As a consequence, the nexus between the elements of instigation
2 on the one hand and the crimes alleged in the indictment on the other
3 hand can be inferred from a number of indicia taking into consideration
4 elements such as, for example, the position of authority and the
5 influence exerted by the accused over the physical perpetrators of the
6 alleged crimes or the time period between the instigation and the
7 commission of the crimes, or the crime.
8 Section number 5. The Trial Chamber in its majority, dissenting
9 opinion from Judge Antonetti, will now state why any reasonable trier of
10 fact could conclude beyond any reasonable doubt that in this case, at
11 this stage of the proceedings, there is sufficient evidence to support
12 the commission of crimes as alleged in all nine counts.
13 First, the Trial Chamber underscores that the accused did not
14 contest the fact that there was an armed conflict at the time as far as
15 the crimes alleged in the nine counts are -- are concerned. The
16 Trial Chamber also notes that the accused even stated about the war in
17 Bosnia that it was both a religious and a civil war. Furthermore, the
18 Trial Chamber notes that the evidence on the trial record almost all
19 state that there was an armed conflict going on, as far as crimes against
20 humanity are concerned as well as crimes of war.
21 (a), regarding crimes against humanity under counts 1, 10, and
22 11. First and foremost, the Trial Chamber would like to answer the
23 submissions of the accused who contests -- who challenges the fact that
24 the crimes alleged in the indictment under counts 1, 10, and 11 would
25 have been committed in the framework of a generalised or systematic
1 attack. The Trial Chamber considers that at this stage of the
2 proceedings, it has a large amount of evidence which will be mentioned
3 more specifically later. This evidence would allow any reasonable trier
4 of fact to conclude beyond any reasonable doubt that the crimes alleged
5 under count 1, relating to persecution as a crime against humanity and
6 under counts 10 and 11 relating to deportation and forcible transfer as
7 crimes against humanity were part of a generalised attack against
8 non-Serb civilian population with the goal of expelling them from the
9 territories of Slavonia, Baranja, and Western Srem; from the
10 municipalities of Zvornik; from the region of Sarajevo; from Mostar;
11 Nevesinje; and from some parts of Vojvodina in Serbia. Therefore, there
12 is no need for the Trial Chamber to examine at this stage of the
13 proceedings to -- to the question of knowing whether these facts were
14 committed in the framework of a systematic attack.
15 Secondly, the Trial Chamber will now give examples of evidence
16 that could support the fact that each crimes alleged in counts 1, 10, and
17 11 of the indictment were committed and that the attack against the
18 non-Serb civilian population had a -- was of a generalised nature.
19 Number one, as far as count 1 is concerned, i.e., persecution as
20 a crime against humanity the Trial Chamber would like to recall first as
21 stated in paragraph 985 of the Media appeals judgement that the crime of
22 persecution is an act or an omission which introduces a de facto
23 discrimination and which refutes or violates a fundamental right
24 recognised by the international customary law or by the conventional law
25 and which has been deliberately committed with the intent to discriminate
1 for an unlawful motivation, notably to discriminate on racial, religious,
2 or political grounds. However, any act of discrimination does not equate
3 to a crime of persecution. The acts underlying persecution making up a
4 crime against humanity, be it -- be they in isolation or jointly with
5 other acts must present the same degree of seriousness than the crimes
6 listed under Article 5 of the Statute.
7 Furthermore, even though persecution often implies a series of
8 actions, a single action may be enough as long as the act or the omission
9 is discriminatory in facts and was deliberately perpetrated with the
10 intent of discriminating for an unlawful reason.
11 Therefore, as stated by the Appeals Chamber in the Kordic and
12 Cerkez appeals judgement, murder, mistreatment, unlawful attacks against
13 civilian property or individuals, the illegal detention of civilians, the
14 destruction of civilian property and plunder are elements of persecutions
15 similar to -- which can be equated to a crime against humanity when they
16 are -- either when they're taken in isolation or jointly with other
18 To establish that there have been persecutions as elements of a
19 crime against humanity, it is necessary, in addition, to prove that the
20 perpetrator of the underlying actus reus had a specific intent to
21 discriminate for unlawful reasons, notably on political, racial, or
22 religious grounds. The required discriminatory intent cannot be directly
23 inferred from the generally -- from the general discriminatory nature of
24 an attack qualified as a crime against humanity. However, the Appeals
25 Chamber, in paragraph 110 of the Kordic and Cerkez appeals judgement,
1 considers, and I quote:
2 "The discriminatory intent can be inferred from such a context
3 subject to the existence, as far as the facts are concerned,
4 circumstances surrounding the commission of the crimes alleged which
5 confirm the existence of such an intent."
6 In this case, the persecution alleged in the indictment aimed to
7 expel non-Serb population from a number of regions, i.e., Slavonia,
8 Baranja, and Western Srem, from the municipalities of Zvornik, of the
9 region of Sarajevo, of Mostar, of Nevesinje, and of certain areas of
10 Vojvodina in Serbia.
11 The Trial Chamber also notes that the elements underlying
12 persecution as referred to in the indictment mainly correspond, as far as
13 time and -- in -- as far as time is concerned and location is concerned
14 too, the crimes alleged under the other counts, i.e., deportation and
15 forcible transfer as crimes against humanity, as well as murder, torture,
16 inhuman -- cruel treatment, destruction, and plunder of property
17 protected by the Geneva Conventions as crimes of war.
18 There are also -- there are also other underlying acts of
19 persecution as alleged in the indictment. There are other acts such as
20 the application of restrictive measures and discriminatory measures
21 towards non-Serb civilians, and public and direct denigration in speeches
22 made in Vukovar, Mali Zvornik, and Hrtkovci, promoting hatred of Croats,
23 Muslims, and other non-Serb populations.
24 The Trial Chamber notes that the accused denies all allegations
25 under count 1 relating to persecutions. The accused notably challenges
1 the allegations of religious discrimination and states that he never gave
2 any speech in Mali Zvornik in 1992, that no speech was delivered during
3 the war in Vukovar, and that during his speech in Hrtkovci in the
4 framework of his electoral campaign, he only supported the idea of an
5 exchange of civilian population and the principle of retorsion.
6 Therefore, the accused submits that the Croats left in the framework of
7 voluntary exchanges of property and not in the framework of a campaign of
8 persecution aimed at expelling them.
9 The accused also specifies that in the assumption that the
10 deportation and forcible transfer would have been recognised, these
11 crimes did not -- would not reach the necessary intensity to be
12 sanctioned as persecution as referred under Article 5 of the Statute.
13 The Trial Chamber cannot take into consideration this last
14 submission, which is totally unsustainable. Apart from the fact that as
15 far as the generalised nature of the persecution of non-Serb population,
16 the Prosecution had a large amount of elements. The seriousness, notably
17 of the deportation and forcible transfer, also results obviously from the
18 provisions of the Geneva Convention of 1949.
19 Article 49 of the Fourth Convention bans forcible transfers, be
20 it en masse or individual, as well as expulsion of protected people
21 outside the occupied territory to send them towards a territory of the
22 occupying power or toward -- to the -- to the territory of any other
23 state, be it an occupied state or not and for whatever reason. This
24 provision is mentioned again in Article 85 of Additional Protocol I to
25 the Geneva Conventions for international armed conflicts and in
1 Article 17 of Additional Protocol II to the Geneva Conventions in case of
2 domestic armed conflict.
3 The Trial Chamber specifies moreover that in the Statute, the
4 term "deportation" in English has been translated as "expulsion" in
5 French, and that this crime is presently provided for as a crime that can
6 constitute a crime against humanity under Article 5, in paragraph (D) of
7 the Statute.
8 The Appeals Chamber in the appeals judgement Krnojelac held that
9 the crime of persecution may take on different forms. It may be one of
10 the other acts that make up the elements of the crimes charged in
11 Article 5 of the Statute or one of the acts that make up the elements of
12 crimes in other Articles of the Statute. One can therefore not challenge
13 the fact that expulsions and forcible transfers may constitute underlying
14 acts of the crime of persecution when they are committed individually or
15 accumulatively with the requisite discriminatory intent.
16 As regards actus reus of the underlying crimes of persecution
17 alleged in the indictment, the Trial Chamber will analyse the -- these
18 hereinafter pertaining to the commission of crimes charged under counts
19 4, 8, 9, 10, 11, 12 and 13.
20 Therefore, the Chamber shall now address, and only address as an
21 example, some of the evidence it has on the commission of persecution
22 that would allow a reasonable judge to support at this stage of the
23 98 bis decision the fact that the perpetrators of the underlying material
24 acts had the requisite discriminatory intent.
25 Before I continue, I would like to mention that I'm going to
1 quote names of witnesses and exhibit numbers. Since there are many of
2 them, there might be some names of the witnesses that are misspelt and
3 some figures may be recorded incorrectly. This will be corrected at a
4 later stage. The Registry will have the document I'm reading from and
5 will check that the names and the exhibit numbers are correct. So if
6 there are any mistakes, don't worry about it. These mistakes will be
7 corrected. I shall endeavour to read this out slowly.
8 As regards the existence of a campaign of persecution against the
9 non-Serb population in the municipality of Zvornik, the Chamber refers,
10 for instance, to witnesses Fadil Banjanovic, VS-1064, and VS-1066 that
11 testified to those facts on the basis of which the Chamber may infer that
12 the specific criminal intent existed.
13 As regards evidence on the imposition of restrictive and
14 discriminatory measures against non-Serb civilians including restrictions
15 of movement, removal from positions of authority in local government
16 institutions and the police, dismissal from jobs, denial of medical care
17 and arbitrary searches of homes in the municipality of Mostar, the
18 Chamber refers, as an example, to witnesses VS-1068, VS-1067, and to
19 Exhibits P658 under seal, P659 under seal, P1052 under seal, who
20 testified to these facts, and on the basis of which the Chamber may infer
21 that the specific criminal intent existed.
22 As regards the municipality of Nevesinje, the Chamber refers, for
23 instance, to witnesses Ibrahim Kujan and Vojislav Dabic and to
24 Exhibits P524 and P880 under seal that testify to facts of the same
25 nature and on the basis of which the Chamber may infer that the specific
1 criminal intent existed.
2 As regards the area of Sarajevo, the Chamber refers, for
3 instance, to witnesses VS-1055 and VS-1111 and Exhibit P456 under seal
4 that testify to facts of the same nature and on the basis of which the
5 Chamber may infer that the specific criminal intent existed -- specific
6 requisite criminal intent existed.
7 As regards the Vojvodina, the Chamber refers to witnesses
8 Aleksa Ejic and Katica Paulic who testify to facts of the same nature and
9 on the basis of which the Chamber may infer that the specific requisite
10 criminal intent existed.
11 Now, as regards counts 10 and 11, on expulsion of non-Serb
12 civilians as a crime against humanity and on the forcible transfer of
13 this population as an inhumane act and a crime against humanity, the
14 Trial Chamber notes that the accused argues that in Hrtkovci, inter alia,
15 but also in other municipality, the departure of the non-Serb population
16 occurred as part of an exchange of -- of property, allowing for the
17 possibility of staying for those who so wished. The Trial Chamber
18 remarks furthermore that the accused indicated on page 16694 of the
19 transcript that at his speech in Hrtkovci he had promised that when
20 the -- he would come to power, he would see to the exchange of property
21 and would apply the principle of retorsion.
22 I waited because the English interpreter was faster than the
23 Serbian interpreter.
24 On this point, it is important to recall that according to the
25 Appeals Chamber in paragraph 229 of the Krnojelac appeals judgement, the
1 Trial Chamber cannot infer that there is a real choice because consent
2 was given insofar as the circumstances under which it was given may
3 deprive it of any value. Accordingly, the evidence received by the
4 Chamber that mentioned a consent must be reviewed in their context,
5 bearing in mind the situation of insecurity and the climate of fear that
6 prevailed, the threats and other forms of violence, the fear and the
7 vulnerable position of the persons in question. Therefore, it is a lack
8 of real choice, which is important in determining the unlawful nature of
9 expulsion or forcible transfer.
10 In the present trial, the Chamber considers that the fact that
11 the accused tries to substantiate resorting to expulsion and forcible
12 transfer of non-Serb civilians as relevant because this would amount to
13 legal retorsion measures under international law. The Trial Chamber
14 shall now provide a few examples of the evidence which is sufficient to
15 base its analysis to consider that the crimes charged in counts 10 and 11
16 were in fact committed in the various municipalities mentioned in the
18 As regards the municipality of Vukovar, the Chamber refers, for
19 instance, to the testimonies of the expert Anna-Maria Radic, of
20 Dragutin Berghofer, and of Vesna Bosanac and to Exhibit numbers P278,
21 P587 under seal, and P632.
22 As regards the municipality of Zvornik, the Chamber refers, for
23 instance, to the testimonies of Fadil Banjanovic, VS-1012, VS-1013,
24 VS-1064, and to Exhibit numbers P663, P664, and P665.
25 As far as the Sarajevo area is concerned, the Chamber refers, for
1 instance, to the testimony of Safet Sejdic and to Exhibit number P463.
2 As regards the municipality of Nevesinje, the Chamber refers, for
3 instance, to the testimonies of Goran Stoparic and Ibrahim Kujan, as well
4 as Exhibit number P524.
5 As regards Vojvodina, the Chamber refers, for instance, to the
6 testimonies of Aleksa Ejic, VS-1134, VS-061 and to Exhibit numbers P537
7 under seal and P564 under seal.
8 As now -- as regards war crimes, now, alleged in counts 4, 8, 9,
9 12, 13, and 14.
10 Firstly, as regards count 4, namely the murder of non-Serb
11 civilians as a violation of the laws or customs of war.
12 The Trial Chamber notes that the accused challenges the murder of
13 some people in Velepromet, and he seems not to admit the existence of the
14 alleged crimes committed in the municipality of Zvornik, save for the
15 murder of 20 or so men and young Muslim boys and Croatians from Bosnia
16 for whom the accused underscores this should be attributed solely to
17 Arkan's men.
18 The Chamber shall now provide a few examples of the evidence
19 which is sufficient and which -- on which it can base its review to
20 consider at this stage of the 98 bis procedure that the crime of murder
21 charged under count 4 was, in fact, committed in the various
22 municipalities mentioned in the indictment.
23 As regards the municipality of Vukovar, the Chamber refers, for
24 instance, to the following evidence: As regards the execution of
25 non-Serbs by the Serbian forces on an execution site located between the
1 Ovcara farm and Grabovo, close to Vukovar, on the 20th of November, 1991,
2 the Chamber heard the witnesses VS-016, VS-007, Emil Cakalic, as well as
3 Davor Strinovic. The Chamber has also received the Exhibits P609, P611,
4 P615, P782, and P786. Furthermore, as regards the evacuation of the
5 Vukovar Hospital and the execution of some of the prisoners at the
6 Velepromet warehouse, the Chamber has heard the testimonies of Dragutin
7 Berghofer and of VS-051 and has received Exhibit number P282.
8 As regards the municipality of Zvornik, the Chamber refers, for
9 instance, to the following evidence: On the murders committed at the
10 Ekonomija Farm and at the Ciglana factory, the Chamber has heard the
11 testimonies of witnesses VS-1015 and Fadil Kopic. Furthermore, as
12 regards the murder of the Bosnian Muslims at the technical school of
13 Karakaj, the Chamber has heard the testimony of VS-1012. As regards the
14 murder of the detainees at the slaughterhouse of Gero, the Chamber heard
15 the testimony of VS-1066. As regards the murder of Muslims committed at
16 the cultural centre of Drinjaca, the Chamber heard witness VS-1064.
17 As regards the area of Sarajevo, the Chamber refers, for instance
18 to, the following evidence: As regards the execution of non-Serb
19 civilians killed at Ljesevo in the municipality of Ilijas, the Chamber
20 heard Witness VS-1111; on the murder of non-Serbs in Zuc in the
21 municipality of Vogosca, the Chamber heard Witness Safet Sejdic.
22 As regards the municipality of Mostar, the Chamber refers, for
23 instance, to the following evidence: On the murder of non-Serb civilians
24 at the Vrapcici stadium, the Chamber heard Witness Redzep Karisik and has
25 received Exhibit Number P481. As regards the execution of non-Serb
1 civilians at the mortuary in Sutina, the Chamber heard Witness
2 Fahrudin Bilic.
3 Lastly regarding the municipality of Nevesinje, the Chamber
4 refers, for instance, to the following evidence: On the murder of men
5 whose bodies were found at Teleca Lastva, the Chamber has heard
6 Witness VS-1022 and has received Exhibit Number P523.
7 Now, as regards counts 8 and 9, namely torture and cruel
8 treatment as a violation of the laws or customs of war for which the
9 Prosecution alleges detention and confinement under inhumane and brutal
10 conditions of non-Serb civilians, including forcible labour and sexual
11 assault and violence.
12 The Trial Chamber notes that the accused challenges the
13 allegations of -- of forced labour in the municipality of Vukovar. The
14 accused admits furthermore the allegations of sexual violence in the
15 municipality of Zvornik but holds that these incidents took place at the
16 end of May until the beginning of June of 1992, according to the accused
17 therefore before the volunteers of the SCP or the SRS were present in the
18 area, which would mean that the accused could not be held responsible for
19 these sexual assaults.
20 The Chamber will now provide a few examples of some of the
21 sufficient evidence it bases its review on to consider this stage of the
22 98 bis proceedings that the crimes charged in counts 8 and 9 were in fact
23 committed in the various municipalities mentioned in the indictment.
24 As regards the municipality of Vukovar, the Chamber refers, for
25 instance, to the following evidence: As regards detention and
1 confinement in brutal and inhumane conditions of non-Serb civilians at
2 the Velepromet warehouse, the Chamber heard witnesses Dragutin Berghofer
3 and VS-051. On detention and confinement under brutal and inhuman
4 conditions of non-Serb civilians at the Ovcara farm, the Chamber heard
5 witnesses Vojnovic and VS-016.
6 I shall now make a break, because we need to have a break. I
7 have read approximately half of the Trial Chamber's decision. We shall
8 have a 30-minute break. I would like the Registrar to turn off the
9 air-conditioning which is above my head, because I will be frozen solid
10 before the end of the hearing otherwise, and I will be unable to speak.
11 My voice will then be totally frozen.
12 We shall now have a 30-minute break.
13 --- Recess taken at 10.23 a.m.
14 --- On resuming at 11.08 a.m.
15 JUDGE ANTONETTI: [Interpretation] The court is back in session.
16 Let me recall that I'm currently reading part of the oral
17 decision which relates to the second paragraph, counts 8 and 9. I had
18 stopped when I spoke about the municipality of Zvornik.
19 Now, as regards the municipality of Zvornik, the Chamber refers,
20 for instance, to testimonies of VS-1012, VS-1013, VS-1064, and VS-1065,
21 and has received Exhibit numbers P307, P381 under seal, and P469 under
23 As far as the Sarajevo area is concerned, the Chamber refers, for
24 instance, to Witness VS-1055 and has received Exhibits P455 and P457.
25 As regards the municipality of Mostar, the Chamber refers, for
1 instance, to witnesses Redzic Karisik and Fahrudin Bilic.
2 Lastly, as regards the municipality of Nevesinje, the Chamber
3 refers, for instance, to witnesses VS-1022 and VS-1051.
4 Section three, as regards the crimes charged in count number
5 12 -- in count 12, namely wanton destruction of villages and devastation
6 not justified by military necessity as a violation of the laws or customs
7 of war, the victims of which were non-Serbs. The Chamber notes that the
8 accused does not mention anything about the commission of these crimes
9 but rejects any involvement of the SCP/SRS volunteers in the said crimes.
10 The Chamber will now provide some examples of the evidence it
11 uses at this stage of the 98 bis proceedings to consider that the crimes
12 charged in count 12 were, in fact, committed in the various
13 municipalities mentioned in the indictment.
14 As regards the municipality of Vukovar, the Chamber refers, for
15 instance, to witnesses Dragutin Berghofer, Nebojsa Stojanovic, VS-021 and
16 Exhibits P268, P278, and P526 under seal.
17 As regards the area of Sarajevo, the Chamber refers, for
18 instance, to witnesses VS-1111, and VS-1055.
19 As regards the municipality of Mostar, the Chamber refers, for
20 instance, to witness 92 quater Zoran Tot and to Witness VS-1067, as well
21 as Exhibits P843, P846, and P1051 under seal.
22 Lastly, as regards the municipality of Nevesinje, the Chamber
23 refers, for instance, to witnesses VS-1051, Ibrahim Kujan and
24 Goran Stoparic as well as Exhibits P483 under seal and P524.
25 With regard to the crimes alleged in count 13, namely destruction
1 or wilful damage to institutions dedicated to education or religion of
2 the non-Serb population as a violation of the laws or customs of war, the
3 Trial Chamber notes that the accused's claim that these institution had
4 been occupied for military purposes, were no longer protected by the
5 Geneva Conventions. In this respect the Trial Chamber notes that during
6 the 98 bis hearing, the accused failed to mention any document or
7 evidence in support of his claim. The Trial Chamber also notes that
8 there is evidence that there were cases of destruction whilst there was
9 no armed formation around.
10 The Trial Chamber, for instance, refers to the testimony of
11 Witness VS-1055 as evidence of the fact.
12 The Trial Chamber recalls that in any case, the protection or the
13 protected status of a building dedicated to religion or education may not
14 be lost simply because there are right next to it military activities or
15 facilities. Indeed, it is the use made of the premises and not their
16 location that determines whether the premises in question may lose their
17 protected status as this was reaffirmed on many occasions by this
18 Tribunal, for instance, in paragraph 310 of the Strugar judgement, in
19 paragraph 604 of the Naletilic judgement, and in paragraph 98 of the
20 Martic judgement.
21 The Trial Chamber will now provide some examples of evidence it
22 deemed sufficient at the 98 bis stage of the proceedings that crimes in
23 count 13 were indeed committed in various municipalities mentioned in the
25 Regarding the municipality of Zvornik. The Trial Chamber, for
1 instance, heard expert Witness Andras Riedlmayer and witnesses Asim Alic,
2 VS-037, and VS-038.
3 Regarding Greater Sarajevo, the Trial Chamber heard, for
4 instance, expert Witness Andras Riedlmayer, and witnesses VS-1055 and
5 Safet Sejdic.
6 Regarding the municipality of Mostar, the Chamber refers, inter
7 alia, to 92 quater witness Zoran Tot, and expert Witness
8 Andras Riedlmayer, as well as to exhibits P843, P1044, and P1045 and
10 Lastly, regarding the municipality of Nevesinje, the
11 Trial Chamber refers, inter alia, to expert Witness Andras Riedlmayer and
12 to witnesses Ibrahim Kujan, Vojislav Dabic, and to Exhibits P524 and P880
13 under seal.
14 With regard to count 14, looting of non-Serb public or private
15 property as a violation of the laws or customs of war as alleged in the
16 indictment. The Trial Chamber notes that the accused does not challenge
17 the fact that there was looting, but he denies any involvement of SCP/SRS
18 volunteers and claims that he would have condemned such behaviour if it
19 had occurred. The Trial Chamber will now provide examples of evidence it
20 deems sufficient at the 98 bis stage of the proceedings to find that the
21 crimes in count 14 were indeed committed in the various municipalities
22 mentioned in the indictment.
23 Regarding the municipality of Vukovar, the Trial Chamber refers,
24 inter alia, to witnesses VS-002, VS-016 and VS-027.
25 Regarding the municipality of Zvornik, the Trial Chamber refers,
1 inter alia, to witnesses VS-1013, VS-038, VS-1105, and to Exhibits P68,
2 P362, and P521 under seal.
3 Regarding Greater Sarajevo, the Trial Chamber refers to witnesses
4 VS-1111, Safet Sejdic, and to Exhibit P840.
5 Regarding the municipality of Mostar, the Trial Chamber refers to
6 VS-1067, to Witness Vojislav Dabic, and to Exhibits P880 under seal, and
7 P1051 under seal.
8 Finally, regarding the Nevesinje municipality, the Trial Chamber
9 refers, inter alia, to witnesses Ibrahim Kujan and Vojislav Dabic, and to
10 Exhibits P524 and P880 under seal.
11 I'm now going to read out more slowly, because we are moving on
12 to an essential part of the Trial Chamber's decision.
13 The Trial Chamber in the sixth and last section of the instant
14 decision will look into the responsibility of the accused under the
15 heading of instigating.
16 In a preliminary fashion, the Trial Chamber wishes to answer to
17 the accused's argument that he could not be prosecuted before a criminal
18 court of law because the international criminal tribunals and their
19 jurisprudence did not yet exist at the time he gave his speeches. The
20 Trial Chamber finds that this argument is unsustainable. Indeed, the
21 Trial Chamber considers that the accused has a Ph.D. in law, is a former
22 assistant professor in political sciences at the University of Sarajevo
23 and that as such he was bound to know at the time relevant to the
24 indictment, he was bound to know that the prohibition to incite to
25 racial, ethnic, or religious discrimination had been enshrined and
1 codified in international law, inter alia, in Article 7 of the Universal
2 Declaration of Human Rights of the 10th of December, 1948; in Article 20,
3 paragraph (2) of the International Covenant on Civil and Political Rights
4 of 16th of December, 1966. Article 4(a) of the International Convention
5 on the Elimination of All Forms of Racial Discrimination of 21st of
6 December, 1965, furthermore imposes on states to qualify or characterize
7 as punishable offence, acts of incitement to racial discrimination.
8 The accused was also bound to know that such acts had been
9 punished at the end of the Second World War. Indeed, speeches inciting
10 to discrimination on racial or political grounds had been punished as
11 crimes against humanity by the Nuremberg military tribunal in 1946 in the
12 Streicher decision.
13 The Trial Chamber is therefore of the view that the accused was
14 well aware at the time of the facts he's charged with that there had been
15 already at an international level a criminalisation, a codification into
16 law of incitement to national, racial or religious hatred through
17 propaganda or any other means. The accused could also not ignore -- I'm
18 going slowly because this is really absolutely relevant. He was bound to
19 know that the former SFRY had complied with the obligation to prohibit
20 and punish such discriminatory behaviour by adding Article 134, paragraph
21 1, to its domestic criminal code. The latter code had been adopted by
22 the Federal Assembly at the session of the federal council held on the
23 28th of September, 1976, and was later published in the Official Gazette
24 of the 8th of October, 1976. Anyone who is interested, it was issue 44,
25 and it came into force on the 1st of July, 1977.
1 The initial wording of Article 134, when it was adopted in 1977,
2 provided for the offence of incitement a maximum penalty of ten years' of
3 imprisonment. The Trial Chamber notes that this provision was later
4 amended in 1990 and the maximum penalty reduced to five years' of
6 The Trial Chamber finds, therefore, that the accused was aware at
7 the time of the acts he is charged with that it had become, at national
8 level, a federal criminal offence in the former Yugoslavia to incite to
9 national, racial, or religious hatred through propaganda or any other
10 means against peoples and nationals present in the territory of the said
12 International criminal tribunals and jurisdiction were created by
13 the Security Council only to replace domestic jurisdiction to punish acts
14 of genocide, war crimes, and crimes against humanity in a situation of
15 emergency in order to ensure international peace. The principle of
16 nullum crimen sine lege is duly complied with.
17 In order to ascertain whether the accused may be held responsible
18 for the commission of crimes reviewed in part five of this decision, the
19 Trial Chamber must analyse the evidence on record and determine whether
20 this evidence is sufficient for a reasonable Trial Chamber to find that
21 the accused incited or instigated within the meaning of Article 7(1) of
22 the Statute to crimes being committed as alleged in the indictment. In
23 order to do so, the Trial Chamber is going to analyse the evidence it has
24 received with regard to each of the three legal requisite elements of
25 instigation mentioned before, namely, firstly, the existence of one or
1 several acts underlying the charge of instigation to commit the crimes
2 alleged in the indictment.
3 Secondly, the knowledge of the accused of the real likelihood
4 that crimes would be committed further to his acts that were elements of
5 instigation, and for the crime of persecution, his intent to bring about
6 or induce the perpetration of the crime.
7 And thirdly, the existence of a nexus between the acts of the
8 accused and the crimes committed.
9 The Trial Chamber wishes to stress, first of all, that it was not
10 able to at this stage of the proceedings to find that evidence on record
11 were blatantly void of credibility or incapable of belief.
12 First of all, with regard to the first requisite condition of the
13 test, namely the element of instigating, by using the word "instigated,"
14 the Prosecution in the indictment generally charges that the accused's
15 speeches, communications, acts, and/or omissions contributed to the
16 perpetrators' decision to commit the crimes alleged and this was
17 confirmed by the jurisprudence of this Tribunal. Therefore, the
18 Trial Chamber took into account all the acts charged against the accused
19 that may have contributed to or otherwise influenced the decision-making
20 process that drove physical perpetrators to commit the crimes alleged in
21 the indictment. The Trial Chamber thus took into account several acts
22 that can be attributed to the accused and that may have influenced the
23 physical perpetrators of the crimes alleged in the indictment.
24 Firstly, the fact that he promoted his nationalistic ideology by
25 any means possible. For instance, the deportation of non-Serbs, be it
1 directly or through his party the Serbian Chetnik Movement, SCP, and
2 later the SRS party.
3 Secondly, the systematic denigration of non-Serb populations.
4 Thirdly, the spreading of a climate of fear among the Serb and
5 non-Serb populations.
6 Fourthly, the fact he encouraged the SCP/SRS supporters to
7 volunteer, and once they were in the field, to -- of encouraging his
8 supporters to bring about, to implement his nationalistic ideology by any
9 means imaginable.
10 (a), with regard to evidence on promotion by the accused of his
11 nationalistic ideology by all means possible.
12 The Trial Chamber has a large amount of evidence that would make
13 it possible for a reasonable Trial Chamber at the 98 bis stage of the
14 proceedings to find that the accused promoted his nationalistic ideology
15 involving the commission of crimes, including the deportation of
16 non-Serbs either directly or through his party, first the SCP that had
17 been banned, and then through the SRS.
18 The Trial Chamber refers to Exhibit P1278, an article published
19 in the "Politika" daily on 9th of July, 1991, to the effect that the
20 accused had been barred from membership in the Serbian Philosophical
21 Society because on several occasions he had openly advocated violence and
22 hatred, ethnic hatred, as means purported to serve and realise, implement
23 the interests of the Serbian people.
24 The Trial Chamber has received Exhibit P1192, a transcript of a
25 press conference of the 20th of February, 1992, by the accused, which he
1 published in one of his books; the Trial Chamber has received
2 Exhibit P1293, published in the "Politika" newspaper on 2nd of March,
3 1992; has received P685 under seal, a transcript of various press
4 conferences by the accused between the 26th of March and the 16th of
5 April, 1992, published in one of his books; the Trial Chamber has
6 received P1324, a transcript of a press conference of the 5th of March,
7 1992, by the accused, published in one of his books. And they show how
8 virulent the accused spoke, notably when he threatened that there may be
9 a bloodbath in Bosnia.
10 The Trial Chamber also refers to Exhibit P1298. That includes
11 also a "Politika" article of the 27th of March, 1992, referring to
12 violent utterances by the accused, who threatened that more blood might
13 be shed if the Muslim fundamentalists were intent on playing with fire.
14 The Trial Chamber refers to Exhibit P1200 that contains, among
15 others, a "Borba" article of the 28th of May, 1992, mentioning some
16 violent words of the accused, notably at an SRS rally in May 1992 in
17 which he summed up the territorial conquests of the Serbian force and
18 insisted on the fact that more still had to be done by "cleansing" the
19 left bank of the Drina River.
20 The Trial Chamber has also received Exhibit P1180, an interview
21 by the accused to the Novi Sad television in June 1991, published in one
22 of his books, in which the accused stated that he had extremely powerful
23 strongholds in north-eastern Bosnia. More specifically he said that the
24 mere fact that in some places the Croats and the Muslims had not been
25 sleeping in their homes for days demonstrates that the SRS/SCP was not as
1 insignificant as it purports to be. The Trial Chamber further refers to
2 Witness Nebojsa Stojanovic, who, in prior witness statements admitted as
3 P526 and P528, testified that the accused thought that Croatia had to be
4 ethnically cleansed and that the borders of Greater Serbia had been to be
6 Witness VS-016 stated, page 11120 of the French transcript, that
7 the accused said as follows: "Not one Ustasha must leave Vukovar alive,"
8 at a political rally in Vukovar around mid-November 1991, outside the
9 headquarter of the Leva Supoderica.
10 Witness VS-033, pages 5542 and 5543 of the French transcript,
11 testified that when he was visiting on the ground, the accused urged the
12 volunteers to kill all of the enemies. The Trial Chamber further refers
13 to witness Vesna Bosanac, page 11404 of the French transcript, testified
14 that the accused said on Serb radio that Vukovar had to fall and all its
15 buildings razed to the ground. For her, it meant that the accused was
16 instigating the members of the Serb forces to totally destroy the town
17 and give them free rein to massacre civilians as they pleased.
18 Finally, the Trial Chamber refers to Witness VS-004, page 3376 of
19 the French transcript, who testified that the accused held inflammatory
20 and virulent, unrestrained speeches.
21 This would be relating to evidence on systematic denigration of
22 non-Serb population by the accused. The Trial Chamber has evidence that
23 would make it possible for a reasonable trier of fact to conclude at this
24 stage that the accused denigrated, in a systematic fashion, Croats,
25 Muslims and other non-Serb population through his speeches, by, for
1 instance, calling them "Ustasha" when he spoke of Croats, calling Muslims
2 "Balija." These are extremely degrading and pejorative terms.
3 With regard to the denigration of Croat populations, the
4 Trial Chamber has received Exhibit P34, an interview by the accused to
5 "Politika" in which it can be read the following:
6 "How can anyone negotiate with Ustashas? Haven't you seen that
7 today there are only Ustashas in the Croatian population? There are only
8 very few exceptions."
9 Similarly, in Exhibit P1194, the accused was stating that there
10 were only, and I quote, 16 good Croats, 10 plus 6, 16, which had the
11 right to stay in Serbia. The rest had to be expelled from Serbia.
12 The Trial Chamber can also mention Exhibit P298. It is a
13 Croatian television footage aired on November 7, 1991, as well as
14 Exhibit P1201 corresponding to the transcript of an interview of the
15 accused for the TV show "Politika," broadcast on June 12, 1992. In these
16 sequences, the accused is referring to Vukovar and Hrtkovci as Ustasha
17 strongholds where you can find the worst Ustashas.
18 Another exhibit, Exhibit P1211 corresponding to the transcript of
19 a press conference given by the accused on January 13, 1993, published in
20 one of his books in which the accused speaks, among other things, of an
21 Ustasha-ruled Croatia.
22 Furthermore, Witness VS-007 testified at page 6072 of the French
23 transcript that the accused had used the term "Ustashas" in front of
24 bodies of Croats who had been killed during combat, and at that moment he
25 said they have -- those bodies have to be burned so they don't foul up
1 the air and contaminate us.
2 The Trial Chamber also refers to Witness Goran Stoparic who
3 testified on page 2338 of the French transcript that the accused was
4 generally calling all Croats, Ustashas.
5 Finally, Witness VS-2000 can also be mentioned at pages 13994 to
6 13995 of the French transcript, because there he mentions the call for
7 vengeance delivered by the accused against Balijas during the speech
8 delivered in Mali Zvornik in 1992.
9 I stop for a minute because it's still freezing in this
11 With regard to the fact that the accused would have spread a
12 climate of fear among the civilian population. The Trial Chamber has a
13 number of pieces of evidence that could lead any reasonable trier of fact
14 to infer at this stage that the accused through his speech spread a
15 climate of fear among the civilians. For example, the Trial Chamber has
16 Exhibit P153 corresponding to documents published in the daily
17 "Velika Srbija," issue 9 of 1991, and re-published in one of the
18 accused's books as well as Exhibit P179, which is a video of a speech
19 given by the accused in 1991 in which the accused is referring to the new
20 Ustasha leaders in Croatia who are once again implementing a genocidal
21 policy aimed at the Serbs.
22 The Trial Chamber can also mention Exhibit P35 corresponding to a
23 speech made by the accused on June 4, 1991, in which he said, and I
25 "All those who do not have a clear conscience have good reasons
1 to be afraid of us, the Serbs. They're quite right to fear us. We, the
2 Serbs, throughout history, we forgot too much. We forgave too much. We
3 told the Croats that if they ever resumed their genocidal activities
4 against the Serbs, not only would we avenge every victim, but we would
5 also settle our scores and settle the scores of the victims of
6 World War I and World War II."
7 In Exhibit P62, a documentary film broadcast by the BBC and
8 called "Death of Yugoslavia" aired in March 1995, you hear the accused
9 say, and I quote:
10 "We, the Serbs, are in danger. Croat fascist hordes are
11 attacking Serb women, Serb children. The Croat fascist hordes are
12 planning the genocide of the Serbs."
13 The Trial Chamber can also mention Witness Anthony Oberschall who
14 testified on page 1999 of the French transcript that the terms used for
15 propaganda do not have the same meaning and are used differently in
16 nationalistic speeches than in normal speeches. Furthermore, he also
17 added on page 2123 of the French transcript that the context is
18 absolutely essential to interpret the statement. According to this
19 witness, it is -- it might be allowed to advocate violence in a peaceful
20 situation, but, however, this is absolutely banned in a situation, in a
21 context where civilians are being killed.
22 The Trial Chamber can also mention Witness VS-061. During his
23 testimony on page 10036 of the French transcript, he said that he --
24 during the speech in Hrtkovci, he heard that the -- the accused was in
25 favour of measures of retorsion against the Croats. All this is
1 corroborated by Katica Paulic who testified at pages 11904 to 11909 of
2 the French transcript that during the Hrtkovci speech, the accused had
3 said that Croats and Hungarians had to leave and that the crowd had
4 reacted very favourably to this speech by chanting, and I quote, "We will
5 kick you out, Ustashas."
6 According to this witness, non-Serbs didn't even dare go to work
7 after this speech.
8 (d) Finally regarding the way the accused encouraged the
9 volunteers of the SRS/SCP so that they would volunteer and that once on
10 the field they would achieve his nationalistic ideology by any means, the
11 Trial Chamber has heard evidence that would lead any reasonable trier of
12 fact to conclude at this point of time that the accused directly
13 encouraged his supporters to volunteer, to go and fight, by all means to
14 defend his nationalistic ideas and promote Greater Serbia, which could
15 only come about through the commission of crimes, notably deportation of
17 The Trial Chamber, for example, has Exhibit P1074 in which
18 Witness Zoran Rankic says that before the volunteers left for the front,
19 the accused would encourage them by telling them be -- "become heroes."
20 "Become heroes," I repeat, and "Fight for Greater Serbia."
21 The Trial Chamber can also mention document P217 in which the
22 accused appoints 16 Chetniks as Vojvodas on May 13, 1993. There's also
23 document P255, a video showing the accused appointing Vojvoda to 18
24 Chetniks on 31 March 1993, and P218 which also corresponds to another
25 appointment by the accused of several Chetniks as Vojvodas on March 20,
2 The Trial Chamber also has the testimony of Goran Stoparic, a SRS
3 volunteer, according to which, pages 2337 to 2339 of the French
4 transcript, the accused visited the members of the Leva Supoderica unit
5 in Vukovar, in the presence of officers of the 1st Brigade of the Guards.
6 According to this witness, the accused had come to encourage this unit
7 made up of volunteers of the SRS/SCP, and Goran Stoparic was very glad
8 that he had visited them on the front line.
9 The Trial Chamber can also mention Witness VS-002, according to
10 which -- to whom on pages 6556 and 6557 of the French transcript, the
11 accused was the only political leader who came to see them in Vukovar, a
12 visit for which the fighters were extremely grateful.
13 The Trial Chamber can finally mention Witness Vesna Bosanac on
14 page 11422 of the French transcript. She said that at -- in Vukovar she
15 heard the accused encourage soldiers, be it volunteers or members of
16 other units, and she said that the accused was the ideological leader and
17 people would do what he said.
18 (2), regarding the second condition for instigation relating to
19 the awareness the accused had of the real likelihood that crimes would
20 result from his instigation as regards crimes referred to in counts 4, 8,
21 9, 10, 11, 12, 13, and 14 and relating to his criminal intent to provoke
22 or induce the commission of crime regarding persecution as alleged in
23 count 1, the Trial Chamber has an amount of evidence that could lead any
24 reasonable trier of fact to conclude is that the accused continued with
25 his violent propaganda even though, (a), he was aware of the influence he
1 had on Serbian public opinion in general and on his supporters and
2 volunteers of the SCP/SRS more specifically.
3 (b) He was aware that there was a war waging at the time and that
4 this made his instigation extremely dangerous.
5 (c) He was aware that in times of war crimes are committed.
6 (d) He was aware or could not ignore the notorious criminal
7 history of some of these Serbian volunteers and therefore the very high
8 risk that these volunteers could -- would commit crimes of war once given
9 weapons and in -- with this war raging.
10 (e) He was fully aware of what was happening on the ground and
11 the fact that crimes were being committed against civilian populations in
12 the combat zones where the volunteers of the SCP/SRS were sent.
13 (f) He had the mens rea to entice his listeners, and
14 particularly, his volunteers into persecuting non-Serb population for
15 political and religious reasons.
16 Moving to (a). First, regarding the awareness that the accused
17 had of the influence he had on Serb public opinion in general, on the
18 supporters of his ideology and volunteers of the SCP/SRS in particular.
19 I will now develop what has been mentioned earlier, and this will take
20 some time.
21 The Trial Chamber here refers itself to Exhibit P1337. It is the
22 foreword written by the accused on September 24, 2002 and published in
23 his book "Ideology of Serbian nationalism." In this foreword the accused
24 states and I quote:
25 "Passive spectators are all potential fighters. You only need to
1 enlighten them, to teach them, to give them a nationalist orientation, to
2 raise their patriotic awareness and to give them the love of the land, of
3 the homeland. Propaganda is based on the fact that -- that a great
4 majority of people naturally are ready to gullibly believe everything
5 they read, hear, or see on television."
6 This can be found in the accused's book.
7 In Exhibit P1264, which corresponds to Articles of the daily
8 "Velika Srbija" dated 15 August, 1990, and reproduced in one of the
9 accused's book, he says on page 25, and I quote:
10 "We now have a very powerful weapon in our hands, the daily
11 'Velika Srbija'" which proves that the accused was well aware that the
12 circulation of his ideologies through this daily would have a very strong
13 impact on the Serbian public opinion and more --
14 THE ACCUSED: [Interpretation] Mr. President, I had to intervene
15 here, because we have an interpreter here who gives false interpretation,
16 and this was a good time to intervene when he said that we had powerful
17 army. You didn't say powerful army. You said powerful weapon and that
18 that weapon was the Greater Serbia. You are bringing this interpreter on
19 purpose, this interpreter against whom I have intervened a number of
20 times. I have listened to everything you have been saying so far with
21 great enjoyment, and this overjoyed me, but here I had to intervene
22 because this is a bit too much now.
23 JUDGE ANTONETTI: [Interpretation] Let me remind the interpreters
24 that they have to be -- I know it's a very difficult job, but they have
25 to be as close as possible to the French that's being read. A weapon is
1 not an army, and so forth and so on.
2 Let me backtrack a little, which -- so that I can read again what
3 I read properly in French and was misinterpreted.
4 In -- in Exhibit P1264 corresponding to Articles of the daily
5 "Velika Srbija" of August 15, 1990 and reproduced in one of the books of
6 the accused, the accused says on page 25, and I quote, and I am quoting
7 exactly what I read earlier:
8 "We now have a powerful weapon in our hands, the daily
9 'Velika Srbija,'" which shows that the accused was aware that the
10 circulation of his ideology through this daily would have a very strong
11 impact on Serbian public opinion and more especially on the volunteers of
12 the SCP, and later on the volunteers of the SRS.
13 In Exhibit P1220 is an interview of the accused by a Japanese
14 journalist, dated May 18, 1993, and printed in one of the books of the
15 accused. On page 2, the accused says that he has a great political
16 influence in Bosnia and thousands of Serbian volunteers listen to him and
17 that he has influence over the thousands of Serbian fighters and that
18 should there be any foreign military intervention, his influence would
19 only be greater.
20 On page 12 of the same document, P1220, the accused recognises
21 that his party is extremely popular and says that this explains why he is
22 so popular, especially since he always speaks his mind, contrary to other
24 Similarly, the video footage corresponding to items P70 and P339
25 illustrate the popularity of the accused and the effect his speeches used
1 to have his on listeners in general and notably on his volunteers.
2 Furthermore the Trial Chamber can mention witnesses
3 Nebojsa Stojanovic, paragraph 6 of his preliminary statement admitted as
4 P527; Goran Stoparic, pages 2442 and 2443 of the French transcript;
5 VS-016, pages 11120, 11171 and 11181 of the French transcript;
6 Aleksa Ejic, page 10343 of the French transcript or VS-061, page 9924 of
7 the French transcript, in light of which it appears that the words
8 uttered by the accused had a great impact on those listening, and hearing
9 them, hearing these words.
10 Now, (b) -- Judge Lattanzi asks me to slow down.
11 So (b), regarding the awareness of the accused as far as the fact
12 that there was a war raging at the time. Given the different -- all the
13 evidence already mentioned in this decision, the Trial Chamber will only
14 give one example for this regarding the conflict-ridden background of
15 these crimes. Exhibit P1205 is a transcript of an interview made by the
16 accused for the Pale TV station, aired in September 1992, in which the
17 accused states on page 4 about the war in Bosnia that it is both a
18 religious and a civil war.
19 [Trial Chamber confers]
20 JUDGE ANTONETTI: [Interpretation] I will now continue, and we
21 will soon have a break.
22 (c) Regarding the fact that the accused was aware that in times
23 of war crimes are committed.
24 The Trial Chamber will not expound on this since the accused is
25 not challenging the fact and even admitted this during the 98 bis hearing
1 at pages 16645 and 16658 of the French transcript.
2 (d), regarding the fact that the accused was aware of the
3 criminal record of a number Serbian volunteers and their -- these
4 volunteers, once equipped with weapon, could very well commit crimes of
6 The Trial Chamber has evidence which would lead any reasonable
7 trier of fact to conclude that the accused was aware of the criminal past
8 of some of the volunteers or at least could not ignore this criminal
10 In this respect, the Trial Chamber mentions Exhibit P836, which
11 is the statement of Matija Boskovic, a 92 quater witness. In this
12 statement, the witness says that when the war started, criminals were
13 released and joined volunteer units.
14 According to Witness Zoran Rankic, paragraph 35 of his
15 preliminary statement, Exhibit P74, it was public knowledge at the time
16 that the authorities were releasing people from gaol and that the SRS war
17 headquarters never checked whether the volunteers that the SCP/SRS were
18 sending to the front had any criminal records. According to this
19 witness, this had no importance for the accused.
20 I will -- we will have our break in a minute. It will be a
21 20-minute break, and we will resume at 12.30. I will still have ten
22 pages to read of this decision, then I will start reading the beginning
23 of my opinion. We will stop around 1.30 for an hour break so that the
24 accused and everyone in the room can have lunch, and then we can resume
25 the reading at 2.30, nonstop to 7.00, hoping to finish earlier, so that
1 my opinion can be fully read.
2 This being said, Judge Harhoff just told me that in the
3 afternoon -- no, obviously he can stay.
4 Mr. Seselj, we're going to have a break, so please be brief.
5 THE ACCUSED: [Interpretation] Now that you have offered me lunch,
6 I thought that you meant it for real, so I will expect that I receive a
7 proper lunch and not just a bagged lunch which wouldn't be fit for a pig,
8 and this is something that I normally receive from the Detention Unit.
9 When you said lunch, I expect to receive something that you yourself
10 would eat and everybody else here. Otherwise, you can retract your offer
11 so that everybody knows that I will be left without lunch today.
12 JUDGE ANTONETTI: [Interpretation] Mr. Seselj, most of the time
13 the three Judges on this Bench, I will repeat this later, they usually
14 sit on two trials, and usually for lunch, you know, we just have a glass
15 of water.
16 We'll have a break for 20 minutes.
17 --- Recess taken at 12.13 p.m.
18 --- On resuming at 12.41 p.m.
19 JUDGE ANTONETTI: [Interpretation] The court is back in session.
20 First, let me tell you for that for administrative reasons I told you
21 that we will have an hour break for lunch, but we'll have an hour and a
23 Secondly, I was told that the interpreters cannot work more than
24 six hours in a row, and because of this they cannot work any longer than
25 six hours at a time. Furthermore, because of the financial resources in
1 this Tribunal, you know that this Tribunal is on its way -- is going to
2 finish, and because of that we do not have an additional team of
3 interpreters. Therefore, once we will have finished with the six hours
4 of interpretation, we will as to have and we will resume tomorrow as of
5 2.15. Therefore, I will be able to finish the ten pages left in this
6 decision, then start to read the beginning of my opinion. We will resume
7 this afternoon, and once the six hours are up, we will stop for the day.
8 I will continue reading, page 40.
9 (e) Finally, regarding the fact that the accused was aware of
10 what was happening on the ground and aware of the crimes committed in the
11 combat zones where the volunteers of the SRS/SCP were sent. First as to
12 what the accused knew about what was happening on the ground. The
13 Chamber can use the testimony of Goran Stoparic, pages 2337 to 2340 of
14 the French transcript; of Mladen Kulic, page 4455 of the French
15 transcript; Witness VS-002, pages 6555 and 6556 of the French transcript;
16 VS-04, pages 3413 of the French transcript; and page VS-007, pages 6069
17 and 6070 of the French transcript which all address visits made by the
18 accused to the field.
19 Similarly, for example, in Exhibit P1207, corresponding to
20 interviews of the accused, dated November 26, 1992, and printed into one
21 of his books, in Exhibit P1204 corresponding to an interview of the
22 accused of September 1992, also printed in one of his books, and in
23 Exhibit P1221 corresponding to an interview of the accused dated May 21,
24 1993, also printed in one of his books, we find a description of three
25 visits and inspections by the accused of SCP/SRS units headed by the
1 three following Vojvodas: Branislav Gavrilovic, Vasilije Vidovic, as
2 well as Slavko Aleksic.
3 Now, as regards the awareness the accused had of the crimes
4 committed in the combat zones where the volunteers of the SCP/SRS were
5 present. The Trial Chamber can quote, for instance, Witness VS-033 who
6 stated on pages 5524, 5525, 5529 and 533 -- 5531 of the transcript in
7 French that in Vocin, Novacic had discovered that criminals were present
8 among the volunteers and had complained about it to the Main Staff of the
9 SRS. This witness, in addition, ascertained that Novacic had telephone
10 contacts with the representatives of the war headquarters of the SRS
11 every two to three days or he went himself to Belgrade and reported
12 directly to the accused.
13 The Chamber can also quote Exhibit P1191 which is a press
14 conference of the accused on the 23rd of January, 1992, and reproduced in
15 one of his books in which the accused indicates that his volunteers were
16 in permanent contact with the leadership of the SCP/SRS and forwarded
17 information from the front line. The Chamber holds that the evidence it
18 has could enable a reasonable Judge to infer that the accused knew or
19 could not ignore that crimes had been committed in the combat areas where
20 the volunteers recruited by the SCP/SRS had been sent. Accordingly, the
21 Trial Chamber holds that it has sufficient evidence at this stage to
22 allow a reasonable Judge to conclude that the accused was aware of the
23 likelihood of the crimes being committed following these acts of
25 (f), as regards the intent of the accused to provoke or entice
1 his audience to persecute the non-Serb population on political or
2 religious grounds, the Chamber refers to first of all to the evidence
3 mentioned in the above on systematic denigration of the non-Serb
4 population by the accused and on the promotion of the accused of a
5 nationalistic view by the commission of these crimes mentioned in the
6 above. The Chamber then refers to the various evidence relating to the
7 spreading by the accused of a climate of fear among the civilian
8 population. The Chamber holds that the accused, through his speeches,
9 instilled this fear with the aim of provoking the Serbs, volunteers or
10 civilians, to persecute the Croats amongst others, to defend the
11 so-called genocidal policy against the Serbian people established by the
12 Croat leaders at the time.
13 In this.
14 Regard, the Chamber has, for instance, the testimony of
15 Katica Paulic, who recounted on page 11904 of the transcript in French
16 that the accused at a rally in Hrtkovci on the 6th of May, 1992, took the
17 floor and singled out Serb members in the audience from other ethnic
18 communities and by disseminating an anti-Croat feeling. According to
19 this witness, on page 11905 of the transcript in French, the words of
20 accused disseminating his discriminatory intent galvanised the people in
21 the audience, who then started shouting, inter alia, "Ustasha, we will
22 kick you out. We will kick you out, Ustasha." Then Aleksa Ejic
23 indicates, on page 10343 of the transcript in French, that the crowd on
24 that day gave the accused an ovation when he hinted that the Croats
25 should return to their nice homeland.
1 The Chamber may also rely on Exhibit P548 which is a note from
2 the Sremska Mitrovica state security department centre testifying to the
3 fact that the accused had taken the floor whilst the crowd was agitating
4 and spouting slogans such as, "Ustasha out. This is Serbia. There is no
5 place for Croats in Serbia."
6 The Chamber refers to the prior statement of Witness
7 Jelena Radosevic, also admitted under Exhibit P580, in which the latter
8 states that the accused had come to Vocin at the end of November and the
9 beginning of December 1991 to fuel tensions with a view to speeding up
10 the departure of the Croats from the town. The Chamber holds that this
11 visit by the accused is part of a campaign of persecution against the
12 non-Serb population as mentioned, amongst others, by the witness Fadil
13 Banjanovic, VS-1064, and VS-1066.
14 The Chamber can also quote Exhibit number P547 that concerns the
15 speech of the accused in Hrtkovci and reproduced in one of his books in
16 which he refers to the Ustashas and calls for the expulsions of non-loyal
17 Croats because there is no place for them in Srem. He continues by
18 saying that if they did not leave of their own free will, they would be
19 taken by force and put on board buses until the borders or up to the
20 borders of the Serb territory. This scenario mentioned by the accused
21 implies the participation of the volunteers and Serb civilian population
22 to -- in the -- sorry in the accomplishment of this criminal purpose.
23 Lastly, the Chamber noted Exhibit P1197, which is a transcript of
24 a televised interview of the accused given to TV studio and broadcast on
25 the 8th of April, 1992, which was reproduced in one of the books of the
1 accused. The accused asserts in that book that he has never met a good
2 Croat and that the Croats are the enemies of the Serbs and the worst
3 criminals ever.
4 On several occasions, he uses the word "Ustasha," which is a
5 derogatory term, and proclaims that the expulsion of the Croats must be
6 done once and for all, for if they stayed, the situation would be all the
7 more unstable.
8 I shall now move on to my third point. As regards the third
9 condition of instigation, namely the existence of a substantial nexus
10 between instigation and the crimes, the Trial Chamber has received
11 evidence allowing a reasonable trier of fact to conclude that the accused
12 exercised a determining influence over the perpetrators of the crime
13 because of the recruitment and the sending of volunteers through the
14 SRS/SCP in the localities in which they were and were therefore able to
15 commit the crimes alleged in the indictment, and because of the moral
16 authority he exercised over his volunteers, which was considerable, and
17 on all the sympathisers of his nationalistic ideology, since some men
18 proclaimed they were Seselj's men or Chetniks, the Trial Chamber notes in
19 this regard that evidence indicates that the SCP/SRS had not taken the
20 trouble to train the volunteers in combat or humanitarian law matters
21 before sending them off to join the army.
22 The Chamber feels that the audience of the accused was broader
23 and encompassed not only the volunteers that had been recruited by the
24 SCP/SRS but also all the sympathisers of his nationalistic ideology.
25 However for -- in light of judicial economy, the Trial Chamber will
1 provide examples of this evidence that testify to that: (a), the
2 recruitment and sending volunteers on the front line by the SCP/SRS
3 headed by the accused; (b), the considerable moral authority of the
4 accused over these volunteers; and lastly, (c), the commission of crimes
5 in the indictment by volunteers recruited by the SCP/SRS or sympathisers
6 of this organisation.
7 I shall now review these last sections (a), (b), (c), in detail.
8 Now, (a), as regards evidence pertaining to the recruitment and
9 the sending of volunteers on the front line by the SCP/SRS headed by the
11 The Chamber can, for instance, quote Exhibit P1233 which is an
12 interview given by the accused to Radio Loznica on the 10th of November,
13 1993, and reproduced in one of his books in which the accused talks about
14 the way in which he contributed to the attack on Zvornik. He states, and
15 I'm going to quote the words of accused:
16 "You should know that our volunteers have fought together with a
17 special unit of the Serb Ministry of the Interior and it is thanks to
18 this coordinated action that Zvornik was liberated on time."
19 Likewise, in Exhibit P342 which is a video of an interview by the
20 accused, dated 1994, the accused states that he sent at least 30.000
21 armed volunteers on all the battle-fields where the Serbian people was
23 In Exhibit P30, which is an excerpt from a BBC documentary,
24 "Death of Yugoslavia," broadcast in March 1995, in which the accused is
25 interviewed, we see the accused saying, we hear the accused saying, I
2 "In 1991, we started organising the volunteers in a big way and
3 sending them on the front lines that had already been drawn up, including
4 in Eastern Slavonia."
5 The recruitment of volunteers by the SCP/SRS and sending on the
6 front line from October 1991 onwards is also mentioned by Witness VS-033
7 who specified during his testimony on page 5505 that he had decided to
8 volunteer for the SCP/SRS, which was sending volunteers on the front
9 line. The witness also indicated that registration as a volunteer
10 automatically meant becoming a member of the Serbian Radical Party.
11 Witness VS-038 indicated on pages 10195 and 10196 that the --
12 that recruitment was done through propaganda in the media where the
13 representative of the SRS, including the accused, called on the patriots
14 to defend the Serbian people.
15 Witness VS-0158 also explained in his prior statement, tendered
16 into evidence under Exhibit number P1053 under seal, that at the
17 beginning of 1995 he had been visited in the cafe where he worked by
18 several members of the SRS and that these men had asked him to join a
19 group of the SCP/SRS volunteers. The witness accepted and decided to
20 join the SRS.
21 (b) As regards the moral authority. The considerable moral
22 authority the accused had over his volunteers. The Chamber has evidence
23 which would allow any reasonable trier of fact to conclude that the
24 accused exercised a determining influence over the SCP/SRS volunteers
25 sent off to the front line. In addition to the evidence relating to the
1 overall influence of the accused on the SRS and SCP sympathisers and the
2 volunteers recruited by SCP/SRS, already mentioned in the second part of
3 the second condition for instigation the Chamber can also quote
4 Witness Fadil Kopic who stated on page 5913 of the French transcript that
5 the SCP/SRS volunteers viewed the accused as a god.
6 Furthermore, the Chamber can also quote Witness VS-0092 who
7 stated during his testimony before the Chamber on page 6557 of the French
8 transcript concerning the accused, "He was a Serb Vojvoda. We would
9 never have dismissed his orders."
10 Lastly, (c), as regards the commission of crimes by the SCP/SRS
11 volunteers or sympathisers of the accused's ideology, the Trial Chamber
12 has evidence which would entitled a reasonable trier of fact to conclude
13 that the volunteers recruited by SCP/SRS committed the alleged crimes in
14 the various counts of the indictment. We shall address these counts each
15 in turn.
16 Count 4, murder. The Chamber may quote, for instance,
17 Witness VS-016 who mentioned during his testimony before the Chamber on
18 page 11137 of the French transcript murders committed in Ovcara by
19 several volunteers recruited by the SCP/SRS identified by name. Or
20 Witness VS-007 who indicated on page 6103 and 6104 of the French
21 transcript that he heard that volunteers recruited by the SCP/SRS, namely
22 the Kinez and the Kameni groups, who, for the most part, were very
23 dangerous and brutal, participated in the executions of non-Serb
24 civilians in Ovcara.
25 The Chamber remarks that the presence in the municipality of
1 Vukovar of a unit of volunteers of SCP/SRS placed under the command of
2 Milan Lancuzanin aka Kameni is confirmed by Witness VS-002, on pages 6535
3 and 6536 of the French transcript.
4 Counts 8 and 9, on torture and cruel treatment. The Chamber can,
5 for instance, quote witness VS-1013, who on page 5248 of the French
6 transcript states that Cele, the head of a Seselj's men unit mistreated
7 and killed detainees. The Chamber notes that Exhibit number P217 says
8 that Cele was a volunteer that had been recruited by the SCP/SRS, who was
9 proclaimed Vojvoda by the accused on the 13th of May, 1993.
10 Witness VS-1013 mentions also on page 5257 of the French
11 transcript that he heard that sexual assaults committed at the cultural
12 centre of Celopek in the municipality of Zvornik had been committed by a
13 volunteer nicknamed Repic and his team.
14 The Chamber notes that Witness Asim Alic on pages 7002 to 7004,
15 7007 and 7022 of the French transcript confirmed the presence of
16 volunteers recruited by the SCP/SRS in the municipality of Zvornik who
17 had substantial military equipment and identity papers showing that they
18 were members to the SCP -- they were members of the SCP and/or the SRS.
19 Among these people were two brothers originating from the suburbs of
20 Belgrade called Vukovic and nicknamed Repic, as regards the last one, the
21 youngest one.
22 Counts 10 and 11 relating to deportation and forcible transfer as
23 an inhumane act. The Chamber refers for instance to Aleksa Ejic who on
24 page 10382 recounts that Rade Cakmak, who introduced himself as a member
25 of the SRS, participated in acts of violence against the inhabitants of
1 Hrtkovci and settled with his family in a house belonging to a Hungarian.
2 Fourth point, count 12, wanton destruction of villages and
3 devastation not justified by military necessity. The Chamber can quote
4 Witness VS-1067, who states on page 15287, 15315, 15316 of the French
5 transcript, as in paragraph 78 of his prior statement admitted under
6 Exhibit number P1051 under seal -- under -- that a group of -- of 50 or
7 60 men who introduced themselves as members of the SRS and that had as
8 their main commander Vojislav Seselj, arrived in April 1992 in Bjelusine,
9 in the municipality of Mostar and that in April 1992 this group went
10 towards the village of Topla, located a kilometre and a half away from
11 Bjelusine, that he saw Seselj's men driving the population out and
12 looting the houses and burning them afterwards. The Chamber can also
13 quote 92 quater witness Matija Boskovic, a volunteer member of the
14 SCP/SRS who indicates in paragraph 27 of his prior statement admitted
15 under Exhibit number P836 that his unit burnt some houses in the village
16 of Dugi Dio, located in the municipality of Zvornik.
17 Fifth point, count 13, destruction or wilful damage of
18 institutions dedicated to education or religion. The Chamber can quote
19 Witness VS-1055, for instance, who states on pages 7805, 7810, 7812, 7846
20 of the French transcript that at the end of March or at the beginning of
21 April, 1992, armed group headed by Vasilije Vidovic, nicknamed Vaske,
22 were present in the town of Ilijas in the area of Sarajevo. These men
23 were wearing various insignia, traditionally the hallmark of a Chetnik
24 organisation. Skulls and bones, cockade, fur hat, the traditional Serb
25 headgear or sajkaca.
1 The witness in addition recognised the insignia of the SRS on the
2 headgear and the subara of Vaske's men. In addition, he said that he had
3 heard from the Serbs living in Ilijas that Vaske was one of the men
4 responsible for the destruction of the religious buildings in the town.
5 The Chamber can also quote 92 quater witness Mujo Dzafic, who in
6 paragraph 24 of his prior statement, admitted under Exhibit Number P284,
7 that Vaske destroyed all the religious buildings, mosques, and churches
8 around Ilijas, including the Stari Ilijas mosque.
9 Six point, count 14, plunder of public and private -- or private
10 property. The Chamber may quote Witness Nebojsa Stojanovic, who in
11 paragraphs 15 to 16 of his prior statement, admitted under Exhibit P57,
12 that he saw the looting of the houses in Desna Supoderica by volunteers
13 recruited by the SCP/SRS who among other things found it amusing to
14 defecate everywhere in the houses.
15 The Chamber can also quote 92 quater witness Mujo Dzafic, who
16 states in paragraph 31 of his prior statement, admitted under P840, that
17 a short while before the end of the war, Vaske and his men looted all the
18 companies in Ilijas by taking away building materials which they then
19 loaded on lorries. The witness saw Vaske taking charge of a lorry which
20 was filled with stolen goods.
21 Fifth point, count 1, persecution on political, racial, religious
22 grounds. The Chamber refers inter alia to all the aforementioned
23 evidence regarding the other counts mentioned in the indictment that
24 constitute some of the underlying acts of persecution committed on
25 religious and political grounds with the participation of the accused.
1 It is therefore not necessary to provide further evidence that the
2 Chamber has relating to this count that enable us to establish a nexus
3 between instigation and this crime. Accordingly the Trial Chamber feels
4 that there is sufficient evidence for a reasonable trier of fact to
5 conclude at this stage that there is a substantial nexus between the acts
6 of instigations by the accused and the crimes committed.
8 In light of the review of evidence on the commission of crimes on
9 the participation of the accused in such a commission, through
10 instigating acts and on the nexus between the crimes and the instigating
11 acts of the accused, the Chamber holds that there is sufficient evidence
12 at this stage to meet the requirements of Rule 98 bis of the Rules for a
13 reasonable trier of fact to convict the accused beyond all reasonable
14 doubt for having instigated the commission of all the crimes alleged in
15 the nine counts of the indictment.
16 The Chamber in its majority, Judge Antonetti dissenting, wishes
17 to recall that this conclusion does not require the Chamber at this stage
18 to review all other forms of responsibility alleged in the indictment,
19 namely the physical commission, specifically persecution, expulsion,
20 and -- deportation and forcible transfers, participation in a joint
21 criminal enterprise, and the other forms of responsibility as provided
22 for in Article 7(1) of the Statute.
23 For the foregoing reasons and pursuant to Rule 98 bis of the
24 Rules, the Chamber in its -- the Chamber dismisses the accused's motion.
25 Since I do not agree with part of the majority decision, I must
1 state my position orally. In light of the issues that will be raised,
2 while I read out [Realtime transcript read in error "redact"] my text, I
3 shall use charts which will be displayed at my request on the various
4 screens. I would like to thank the Registrar and the usher in advance
5 for their assistance.
6 THE INTERPRETER: Interpreter's correction: Read out indeed of
8 JUDGE ANTONETTI: [Interpretation] With regard to the method I
9 have used to reach these conclusions which are my personal conclusions, I
10 want to first and foremost express my thanks to our intern and to my
11 legal assistant who made it possible to prepare the chart that is soon to
12 be presented. It was a lot of work, because they had to go through
13 thousands and documents and tens of thousands of pages to do so. It was
14 a major piece of work, a major undertaking, and I wanted to thank them
15 for this.
16 In order to assess the Prosecution evidence, first of all, by way
17 of introduction, I wish to say that I relied mainly on an exhibit that I
18 feel is very important that was tendered into evidence by the OTP that is
19 now part of the case file and that relates to all the interviews or
20 transcripts of the accused until the Milosevic proceedings. It went over
21 several days, and it is several hundred pages long. So this was one of
22 the foundations on which I relied.
23 Equally, I read and scrutinised each and every decision by
24 Trial Chambers and Appeals Chambers in relation to the events that
25 occurred in the former Yugoslavia, and these are res judicata. These are
1 of common notice, and I may state some of them in my dissenting opinion.
2 And apart from the documents, I also read motions and public decisions in
3 cases that were relevant to the matters at issue in this case.
4 When I finish reading my partly dissenting opinion, which is 73
5 pages long, I'll give to Mr. Marcussen and Mr. Seselj the document I'm
6 about to read out, together with attached charts and tables listing
7 witnesses and exhibits so that they could find their way around, as it
9 First of all, I have structure, a plan. Mr. Usher, please
10 display it on the ELMO. It has been translated into English and into the
11 accused's language. So you can see this in English. I will have some
12 preliminary remarks, then the 98 bis proceedings in relation to
13 acquittal. Third chapter, the crimes alleged in the indictment,
14 allegedly committed in Croatia and Bosnia and Herzegovina and in Serbia.
15 The fourth chapter, individual criminal responsibility as to planning
16 ordering, instigating, committing, under JCE I, II, and III, crimes of
17 persecutions, crimes of deportation, and of forcible transfer. Aiding
18 and abetting under number 5. And finally, the charges with two overall
19 charts summing up the counts which in my view should give rise to
20 acquittal, in part, of the accused and summing up the counts that -- for
21 which the trial proceedings should be continued.
22 I have a few minutes left before the break, and I'll start with
23 chapter 1 -- or, rather, with preliminary remarks.
24 Review of Prosecution evidence further to Rule 98 bis. It's to
25 be seen here in a very specific context compared with other cases brought
1 before this Tribunal. First of all, the pre-trial custody is really out
2 of the ordinary. The accused was detained on the 24th of February, 2003.
3 This pre-trial and trial custody has lasted more than eight years, way
4 beyond the standards set up by the European Court of Human Rights, and it
5 may only be extended for relevant and sufficient grounds, such as the
6 complexity of the case, the need to maintain the accused at the disposal
7 of justice, the need to prevent re-offending. See on this point European
8 Court of Human Rights 29th of October, 2009, the Paradysz v. France case.
9 Another reason may be the issue of pressure exerted on witnesses. In
10 this regard refer to the European Court of Human Rights, 10th of March,
11 2009, Bykov v. Russia.
12 Secondly, there have been several ongoing allegations that result
13 from the unlawful disclosure of the names of protected witnesses or from
14 pressure exerted on witnesses.
15 The possible impact of such allegations on the indictment were,
16 in my view anyway, nonexistent because pressure or disclosure of names of
17 protected witnesses did not occur before the indictment was drafted. The
18 indictment was therefore not contaminated by this type of pressure or
19 violation, if any.
20 Thirdly, there are ongoing contempt proceedings against several
21 OTP members. In my view, such proceedings in which we can only expect
22 the conclusions of the amicus curiae at best in October 2011 may have a
23 direct impact on the indictment in the event that witness interviews
24 would have been vitiated, invalidated, by such pressure exerted on them.
25 Since an indictment is based on interviews, witness interviews that gave
1 rise to witness statements that are then admitted into evidence, you
2 have, for instance, the statements of witness VS-009 of 12 February 2003
3 and 16th of June, 2006, but it relies also on documents, therefore there
4 may be an impact, such as to carry out the total or partial nullity of
5 the indictment.
6 Therefore, I believe at my own level that in any event it would
7 be better to wait until October before we can usefully start the second
8 main stage of the proceedings further to Rule 73. Should the
9 amicus curia conclude that there was no contempt of court, should he
10 exonerate the OTP, the Defence case could then commence.
11 Conversely, no Defence case can begin before the total or partial
12 cleansing of the indictment, be it on application of the Prosecution,
13 further to Rule 51 in relation to the withdrawal of an indictment, or at
14 the request of the accused, further to Rule 73. In the latter case, the
15 accused could seize the Chamber for a decision to be issued or to obtain
16 reparation of the damage suffered.
17 Furthermore, this would be a first in this Tribunal, and since
18 this -- such a case was never envisioned by the Rules, I am of the view
19 that the Trial Chamber, proprio motu, failing motions by the parties and
20 further to Rule 85(A), could decide that all the evidence has been
21 adduced and start the end of the proceedings as per Rule 86.
22 I have two and a half pages left. We will finish the day at
23 quarter to 2.00.
10 THE ACCUSED: [Interpretation] I am absolutely opposed to this
11 request by the Prosecutor, because I never ever filed a confidential
12 submission. I filed a public motion, and it can be seen on my website,
13 and it was also published in one of my books. So it can under no
14 circumstances be a confidential motion. It is me who decides whether my
15 motions are confidential or public, and I'm fully opposed to this
16 manipulation by Mr. Marcussen.
17 JUDGE ANTONETTI: [Interpretation] The Trial Chamber will see
18 whether there's a need for redaction or not, whatever the case may be.
19 Let me say that at this stage of the proceedings it is not
20 necessary to look into whether there was one or several cases of perjury.
21 As far as I can see, it's only at the time of the final deliberation that
22 this issue will have to be settled in a final way.
23 In this respect, I must remind you of a very recent decision of
24 the Appeals Chamber dated 1st of April, 2011, in the case this,
25 Tharcisse Renzaho. Paragraph 196: It says that the Defence must prove
1 that the damage suffered is tantamount to an error of law invalidating
2 the judgement. Well, the President has not ruled yet on the new
3 submission, so we have to wait for his decision.
4 This submission does not bear any direct bearing, be it direct or
5 indirect, on the development of the 98 bis proceedings. It would be a
6 totally different kettle of fish if we were at the level of the final
8 Finally, this case is to be seen in a very specific context.
9 Inasmuch as we have two Judges of the Bench who also sit in
10 Trial Chambers seized of identical facts for certain crimes or of the
11 same joint criminal enterprise. In these other cases, there are various
12 Prosecution expert witnesses or witnesses who may have witness --
13 testified in the three cases, or at least two of them, before the same
14 Judges. Each testimony has to be ascertained as to their relevance and
15 probative value at the moment of the final deliberations.
16 Taking into account the fact that the three trials in question
17 are not at the same level of progress, it may be that one Judge may
18 assess the testimony of a given witness in a specific way in one trial,
19 and then he will have to assess the same testimony but several months
20 later in another case without any new element. So is he or she going to
21 give the same probative value, the same weight? The fact that several
22 Judges may participate in several trial proceedings where you hear the
23 same witnesses, this has been dealt with in the Tharcisse Renzaho case,
24 with regard to the second ground of appeal. I think it's interesting
25 enough for me to mention it. And the Appeals Chamber ruled in paragraphs
1 22 and 23 in the following way:
2 A presumption of impartiality is granted to the Judge in the
3 absence of any contrary evidence, thus dismissing the Defence argument
4 that the same Judges had taken part in other trial proceedings on the
5 same facts with the same witnesses and this would have been a violation
6 of the presumption of innocence.
7 At this stage, notwithstanding the above-mentioned appeals
8 decision, I cannot assess what the direct consequences would be on this
9 case of the fact that my colleagues are part of other cases. This can
10 only be done at the time of the final deliberations, and it might be
11 interesting to hear the parties on this, so much so that I think we have
12 to point out something that must have escaped the Prosecution, namely,
13 that in the indictment against Seselj, the joint criminal enterprise is
14 alleged to end in September 1993, mentioning among the participants
15 Karadzic, whilst in the indictment against Karadzic, Seselj is alleged to
16 be a participant, but the joint criminal enterprise is ongoing from
17 October 1991 to the 30th of November, 1995. There is, therefore, an
18 obvious contradiction that puts the Judge sitting in the two cases in a
19 particularly difficult situation to assess the scope, the extent, of the
21 To get out of this dilemma, one have -- one would have to wait
22 until the three trials are completed if we want to avoid running this
23 type of risk. The completion strategy of this Tribunal doesn't make it
24 possible to extend trial proceedings forever. All the more so since the
25 accused has been in custody for too long already. Therefore, I had -- I
1 was bound out of principle to raise this theoretical issue at this stage
2 of the proceedings, while saying, much to my regret, that this trial
3 should be completed as quickly as possible, whilst the very
4 implementation of specific inescapable legal constraints should be such
5 that we have to wait until the Karadzic and Stanisic/Zupljanin
6 proceedings are completed to have our final deliberations which should be
7 postponed sine die. So we're going to wait, but there may be a
8 discussion on the redactions.
9 The majority opinion, and me dissenting, decided to redact the
10 part as suggested by Mr. Marcussen.
11 THE ACCUSED: [Interpretation] Does it mean that Mr. Marcussen has
12 just declared my motion a confidential one and that the majority of the
13 Chamber accepted that? Your Honours, did you declare this motion of mine
14 to be confidential, and are you entitled to do that? You're not, and
15 this is an abuse of your judicial role.
16 JUDGE ANTONETTI: [Interpretation] Well, the matter is settled.
17 We're going to adjourn -- well, rather, we'll have a 90-minute
18 break. We shall resume -- we shall resume -- we shall resume around
20 --- Luncheon recess taken at 1.41 p.m.
21 --- On resuming at 3.20 p.m.
22 JUDGE ANTONETTI: [Interpretation] The Trial Chamber is back in
23 session. Let's move into closed session for a few moments,
24 Mr. Registrar. Private session.
25 [Private session]
11 Pages 16894-16899 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: We're now in open session.
9 JUDGE ANTONETTI: [Interpretation] Thank you.
10 Chapter 2, 98 bis proceedings, acquittal. I'm not going to
11 return, revisit some important parts that have been mentioned, addressed,
12 in the majority decision, but I must remind you that pursuant to the
13 former wording as amended, before it was amended on the 17th November,
14 1999, an accused may file a motion for acquittal on one or several of the
15 offences in the indictment within seven days following the close of the
16 Prosecution case, and at any rate, before the beginning of the Defence
17 case further to Rule 85(a)(ii).
18 (b) If the Trial Chamber is of the opinion that the evidence
19 adduced is not enough to sustain a conviction for this or these charges,
20 it enters a judgement of acquittal at the request of the accused or
21 proprio motu.
22 The way this former wording was used by Trial Chambers has given
23 rise to very long, very lengthy written decisions, sometimes with
24 dissenting opinions and the filing and filings with the Appeals Chamber.
25 It was a time-consuming procedure, and it was likely to delay the
1 proceedings. Therefore, a reform was introduced in 2004 under the
2 incentive of the President of the Tribunal. It aimed at speeding up the
3 procedure by turning the procedure from a written to an oral procedure.
4 And the text -- the wording as adopted is as follows: "At the close of
5 the Prosecution case, the Trial Chamber must -- shall by oral decision
6 after hearing the oral submissions of the parties enter a judgement of
7 acquittal on any count if there is no evidence capable of supporting a
9 The 98 bis proceedings because of the amendment of this Rule in
10 2004, does not make it possible, because it is an oral decision, because
11 it is an oral opinion, doesn't make it possible to really go into details
12 with very specific and exact references, as was done before with written
14 As it is forensically impossible to go into further detail, I
15 cannot review each and every crime to try and identify its possible
16 perpetrator. At this stage, I can only conclude that the author is
17 alleged to be part of the Serb forces without any further specifications.
18 The Serb forces are collectively defined as members of regular units of
19 local TO, often from local TOs, from members of paramilitaries, Arkan's
20 men, Yellow Wasp, White Bees, Seselj's men, or other volunteers without
21 specifying whether these are volunteers affiliated to a political party
22 like to the Serbian Radical Party.
23 The majority opinion is that it is not possible to enter a
24 judgement of partial acquittal based on the wording of this Rule. I
25 disagree totally with their interpretation, all the more so since I'm the
1 coauthor, together with another Judge, of the very wording of the new
2 Rule. The purpose of this reform was never to make it impossible to
3 enter a decision of partial acquittal. It would have been paradoxical
4 that the very purpose of this reform, which is to gain time, actually
5 would have reached the opposite result on the very ground that it is not
6 possible to enter a decision of partial acquittal. It would be equally
7 paradoxical to force the accused to adduce evidence whilst for specific
8 counts or parts of counts the Prosecutor did not lead any evidence or
9 because the evidence they have adduced is not sufficient.
10 This being so, unlike the majority opinion, I am of the view that
11 it was possible for the Trial Chamber to make a decision of acquittal in
12 part or total.
13 Furthermore, the English and French versions are authoritative.
14 In French the fact that you use the term of "Chef d'accusations," count,
15 instead of "infraction," offence, semantically boils down to one and the
16 same thing, because a crime is an element of an offence, an ingredient of
17 an offence or a count. The fact that later on after this amendment was
18 made there was no partial acquittal does not mean this was impossible.
19 It's just that Trial Chambers did not look into the matter or did not
20 want to.
21 The Rule 98 bis proceedings, because it takes place at the close
22 of the Defence case and before -- of the Prosecution case and before the
23 Defence case is very similar to the no-case-to-answer motions of the
24 common law time where there is a motion for acquittal for insufficient
25 Prosecution evidence and the Defence does not respond to that, does not
1 reply. Although the fundamental concept behind Rule 98 bis has been
2 borrowed from common law, this Rule has to be read in its own context in
3 the light of the Statute and the Rules. Therefore there may be
4 discrepancies between the way the Tribunal applies it and the way it is
5 applied in common law systems, in common law jurisdictions. For
6 instance, as to the notion of the legal test to grant a motion further to
7 Rule 98 bis.
8 The Trial Chamber Judge, as mentioned by the Appeals Chamber
9 jurisprudence since their appeals judgement in case the Prosecutor
10 against Jelisic, must assess whether the Judge will enter a conviction
11 beyond any reasonable doubt given the evidence adduced by the
12 Prosecution. This is what the Trial Chamber said, and I will quote:
13 "The Trial Chamber -- the Prosecution submits that when the
14 Trial Chamber required the guilt to be established beyond any reasonable
15 doubt after the presentation of its case, it applied a criteria different
16 and stricter than the one required by law. In its point of view, it
17 would have -- what should have been done was to check whether the
18 evidence, once admitted, had allowed a reasonable tribunal to decide
19 whether the accused is guilty. The question is not to know whether given
20 the evidence adduced the accused should be found guilty but whether he
21 could be found guilty."
22 The jurisprudence of this Tribunal regarding the implementation
23 of Rule 98 bis of the Rules has constantly indicated that Judges must
24 enter an acquittal if the evidence adduced by the Prosecution would not
25 allow any reasonable Judge beyond any reasonable doubt to find the
1 accused guilty.
2 Why is it that in common law there was this need to qualify the
3 Judge as reasonable? By definition, a Judge should not be unreasonable,
4 and the Judge should not be incompetent nor should he be unbiased.
5 However, in common law, these terms were found, "reasonable Judge."
6 Similarly, why is there this addition of "beyond any reasonable
7 doubt"? Beyond any reasonable doubt is the criteria that is required for
8 evidence in an adversarial criminal trial, which means that the evidence
9 adduced by the Prosecution must prove, inasmuch as there can be no doubt
10 in the mind of a reasonable Judge, that the accused is indeed guilty.
11 Now, this notion of a reasonable Judge refers to a legal fiction.
12 It is a standard used to measure the behaviour of an individual. This
13 standard is used in common law, in tort law, notably, to determine
14 whether there has been a violation of the duty of care. Here this duty
15 of care is similar to the notion of "bon pere de famille" in French.
16 This is a very abstract individual seen as the behavioural standard used
17 to measure the behaviour of a given person in order determine whether an
18 offence has been committed and whether -- and to what extent. This
19 notion of reasonable Judge, therefore, refers to a yardstick used to
20 measure how the Judge can appreciate a reasonable doubt.
21 Now, the content of this notion of reasonable doubt in a criminal
22 trial is, because of the bias it adduces, very uncertain. This notion in
23 the United States is seen as a fundamental guarantee for the rights of
24 the accused, whereas in England it has been abandoned or quasi-abandoned
25 in criminal cases.
1 In principle, whenever a Judge has a doubt, the accused must be
2 given the benefit of this doubt so the terms "beyond any reasonable
3 doubt" create, according to me, a greater standard. I -- it seems to me
4 that the Judge must be convinced without a single hesitation that the
5 accused could be found guilty after the evidence has been analysed.
6 Therefore, the case law of this Tribunal is extremely strict.
7 The point here is not to examine the evidence prima facie but to
8 examine the substance of things with -- with all the -- with everything
9 that should be used to appreciate the elements -- the evidence. In a
10 word, it's not -- we're not here just to note facts or to say that facts
11 have happened, we have to explain why and what are the probative evidence
12 adduced by the Prosecution which could allow a reasonable Judge to enter
13 a conviction.
14 Similarly, to make its decision, the Trial Chamber must determine
15 whether for each elements of the crime they are elements where at their
16 highest value could possibly satisfy this Trial Chamber beyond any
17 reasonable doubt that the accused is indeed guilty. The Trial Chamber
18 has on several occasions had the opportunity to rule on these motions and
19 to enter judgements of partial acquittals. In other cases, the
20 Trial Chambers just dismissed these motions.
21 As far as partial acquittal is concerned, I could quote the
22 decision of April 6, 2000, in the Kordic and Cerkez case; the -- the
23 decision of February 28, 2002, in the Martinovic/Naletilic case; the
24 decision of November 28, 2003, in the Brdjanin case; the decision of
25 June 16, 2004, in the Slobodan Milosevic case; and the decision of
1 September 27, 2004, in the Hadzihasanovic and Kubura case.
2 Partial acquittal is possible in law, because it corresponds to
3 the spirit and the letter of Rule 98 bis. Why should an accused, while
4 presenting his case, call witnesses in order to rebut number of elements
5 supporting an offence? For example, in the Slobodan Milosevic case, the
6 Trial Chamber entered a series of acquittals of the Bosnia-Herzegovina
7 part of the case, noting that on the one hand there was no evidence
8 adduced for some paragraphs, and on the other hand that the evidence
9 adduced was insufficient.
10 In a recent decision in Milutinovic et al., which was issued
11 after the 2008 reform, the Trial Chamber in its oral decision stated, and
12 I quote:
13 "Where there is no evidence to sustain a count, the motion will
14 be granted. Where there is some evidence but it is such that taken at
15 its highest a Trial Chamber could not convict on it, the motion will also
16 be granted. Where there is some evidence but it is such that its
17 strength or weakness depends upon the view taken on a witness's
18 credibility and upon one possible view of the facts a Trial Chamber could
19 convict on it, the motion will not be granted."
20 Similarly, the Milutinovic Chamber referred to the legal test
21 used in the Jelisic appeals judgement and to the 98 bis decisions issued
22 in the -- in the following cases: Slobodan Milosevic, Mrksic, Martic,
23 and Dragomir Milosevic.
24 The purpose of Article 98 bis is extremely clear. It is meant to
25 prevent a trial from continuing in cases where Prosecution did not
1 sufficiently provide proof of its allegations and in the absence of any
2 analysis of the position of the Defence through its evidence either
3 mentioned already adduced or to be adduced.
4 Furthermore, since this is a very long case, we know that the
5 accused has been in provisional custody for more than eight years. I
6 believe, therefore, the test -- the standard of review for the evidence
7 in Article 98 bis should be higher than in ordinary cases where there is
8 an expeditiousness, according to the Statute of the Tribunal. It would
9 be unfair to continue a trial when the evidence adduced so far
10 insufficient. Note -- especially since the provisional detention has
11 been extremely long and that -- and that Prosecution has had all its time
12 to put the finishing touches to its investigation. Since we know that
13 here at the ICTY the Prosecution during the trial can continue its
14 investigation and can adduce whenever it wishes to do so new evidence,
15 sometimes at the very last minute, as was the case with the diaries of
16 General Mladic.
17 I will now turn to the crimes alleged in the indictment, crimes
18 committed in Croatia, Bosnia-Herzegovina, and Serbia.
19 As far as the crimes alleged in the indictment are concerned, I
20 believe that some of them have been established through the evidence
21 adduced by the Prosecution and -- but some others have not been
22 established. In the annex that we will soon have on the screen, you will
23 see the evidence which according to me could allow any reasonable trier
24 of fact to conclude that there was a crime as the Statute of the Tribunal
25 understand it.
1 For crimes committed in municipalities, I will recall for each
2 and every one of them what evidence has been adduced by the Prosecution
3 in its preliminary brief as well as its oral submissions. I am not going
4 to recall the position of the accused, because it has been given in
5 detail when reading the majority decision of the Trial Chamber in its
6 first chapter, review of the procedure. However, I must remind you of
7 the position of the Prosecution in a detailed way by quoting all
8 witnesses and documents supporting its allegations regarding the crimes,
9 which is what I'm going to do for crimes committed in Croatia,
10 Bosnia-Herzegovina, and Serbia.
11 Given there are a lot of references, I will be ask to be placed
12 on the screen a summary chart of all the evidence adduced by the
13 Prosecution. Before this, however, there are other elements I must deal
15 The careful review of the elements -- of the evidence adduced and
16 the testimonies heard by the Trial Chamber during the Prosecution case
17 could lead a reasonable Judge to conclude that beyond any -- all doubt
18 that the crimes alleged in the indictment were actually committed, this
19 undisputedly except for some points which I will detail later on.
20 It is thus possible to conclude that within the time period of
21 the indictment, from August 1991 to September 1993, military actions were
22 carried out in a number of towns of former Yugoslavia, notably in
23 Croatia, Bosnia-Herzegovina, and in Serbia, mainly in the cities of
24 Zvornik, Vukovar, Mostar, Nevesinje, and Bijeljina, in the framework of
25 which civilians or enemy fighters were captured. Some were detained,
1 others were mistreated, and a large number of them were executed. The
2 list of the victims mentioned illustrates these crimes can be found in
3 appendix 3, 4, 5, 7, 9, 10, and 11 of the indictment.
4 This being said, regarding counts 12 and 13, wanton destruction
5 of private or public property, does the Prosecution give enough evidence
6 to prove that the crimes committed during the period mentioned in
7 paragraph 34 of the indictment and in the cities mentioned in the
8 indictments were actually carried out by groups on the terrain and which
9 came under the authority either of the JNA or of the VRS? Military
11 Therefore, regarding the destruction of buildings, it is true
12 that some of them were damaged or totally destroyed, but the report of
13 the Prosecution expert, Mr. Andras Riedlmayer, is not such that it
14 could -- that this destruction could be directly attributed to a single
15 group and does not allow also to provide exact dates for this
16 destruction. It seems that the expert used documents drafted after the
17 events and on photographs taken before, during, or after the events.
18 Therefore, how is it possible to say that in a given locality and in a
19 given city a mosque which has been completely destroyed is a parking lot
20 now, but the mosque might have been destroyed by the municipality after
21 the events for different reasons, maybe just because this mosque was
22 about to crumble.
23 The expert did not answer these kinds of concerns, and I do have
24 elements in evidence that allow me to conclude that these buildings were
25 actually either damaged or destroyed, but I don't have enough evidence to
1 attribute this damage, destruction, to a specific group which would have
2 acted under the direct authority of the accused as alleged in paragraph
3 34 of the indictment under any modes of liability, including JCE III.
4 I would also like to add that as far as Mostar is concerned, the
5 many -- all these buildings might have been destroyed during the conflict
6 between the Serbs and the Muslims and the Croats or also during the
7 conflict between the Muslims and the Croats, which introduces another
8 element of doubt.
9 Regarding the counts 12 and 13 dealing with the wanton
10 destruction of private and public property, as things stand now, the
11 following religious buildings must be excluded: In Mostar, the Nesuh Aga
12 Vucjakovic mosque, the Franciscan monastery and the Most Sacred Heart of
14 In Nevesinje, the Islamic clock tower, the Hadzi Dervis Cucak
15 mosque, the market mosque, and the Sinan Dede Efendi mosque.
16 Regarding the municipality of Zvornik, the Mekted, and the
17 Gusteri mosque, the new Donji Krizevici mosque, the Svrake mosque, and
18 the Vitinica mosque.
19 In the area of Sarajevo, the Hadzi Idriz mosque in Hrasno, and
20 the Catholic Church of the Holy Trinity in Novo Sarajevo. Because the
21 only buildings that should be taken into account are those who have been
22 extremely damaged. You will see later on in the chart they will be noted
23 LDE; or the buildings that have been partially destroyed, marked with PD;
24 or the buildings that have been totally destroyed, CD. However, contrary
25 to the crimes of plunder which I will expound on later, even as things
1 stand now, there are some failings as described above. The
2 Trial Chamber, when it deliberates, will have the -- the expert report as
3 well as other documents, which may lead it to conclude in a very specific
4 fashion that such-and-such building has been destroyed and this at a
5 specific date with a specific identification of the perpetrators, and
6 thus a reasonable trier of fact could conclude that as things stand,
7 these destructions did occur.
8 Regarding count 14, plunder. At paragraph 34 of the indictment,
9 the Prosecution says that public and private properties were plundered in
10 the municipalities of Zvornik, in Greater Sarajevo, Mostar, and
11 Nevesinje. I believe it is necessary regarding this plunder to have at
12 least a few intangible evidence such as the list of the victims of this
13 plunder, an accurate description of the goods plundered, the photographs
14 or reports on these goods, and the elements helping to identify the
15 perpetrators, but I must note that, unfortunately, this evidence does not
16 exist as things stand. Therefore, I cannot conclude that hundreds of
17 houses were plundered in Vukovar, Zvornik, and the Greater Sarajevo
18 region, in Vogosca, in Mostar and in Nevesinje.
19 Consequently, I'm now going to show on the screen the charts
20 which include the evidence which according to me could lead a reasonable
21 Judge to conclude that the alleged crimes were actually committed. I
22 will ask the court officer to place the summary chart of the evidence
23 on -- under the ELMO.
24 Here you have a list of all municipalities on the left-hand
25 column. Exhibits, you have the list of the documents which according to
1 the Prosecution are evidence of the crime. And on the other column,
2 witnesses. You have the number of all the witnesses who testified about
3 these crimes. This is a summary chart giving you the position of the
5 I will now get into the details, and I will ask the usher to show
6 us Annex 1, which deals with Vukovar.
7 In this appendix, on the left-hand side you have the paragraphs
8 in the indictment; second column is paragraphs in the pre-trial brief;
9 footnotes in the pre-trial brief which refer, of course, to these
10 paragraphs; and on the right-hand side column, list of the witnesses and
11 documents which according to me can prove that crimes were actually
12 committed in Vukovar. Paragraph 16, for example, Witness VS-011 and
14 I will later hand to Mr. Marcussen and Mr. Seselj these charts.
15 Therefore, they can take a look at them. Believe me, this took hours to
16 put together.
17 Appendix number 2, Vocin. Same principle. You have paragraphs
18 in the indictment, paragraphs in the pre-trial brief, footnotes, and
19 witnesses and documents supporting the allegations of the Prosecution.
20 Then Annex 3, Bijeljina. I'm not going to go through it --
21 through all of these annexes, otherwise we'd be spending weeks here. So
22 for Bijeljina you have the paragraphs in the indictment mentioning
23 Bijeljina, paragraphs in the pre-trial brief, footnotes, and witnesses
24 and documents.
25 Then Brcko. Same thing for Brcko, paragraph in the indictment,
1 pre-trial brief, footnotes, witnesses and documents. For Brcko you can
2 see that this is not supported by many witnesses, only mainly by
3 Witness VS-1033.
4 Annex 5, Bosanski Samac. Here again, same columns, paragraphs in
5 the indictment, paragraphs in the pre-trial brief, footnotes in the
6 pre-trial brief, witnesses and documents. And you can note here again we
7 have an interview of Mr. Seselj mentioned to support paragraph 16 of the
8 indictment, paragraph 86 in the pre-trial brief.
9 Zvornik, Annex 6. Here again for Zvornik there are two pages
10 because it's quite extensive. Paragraphs in the indictment on the
11 left-hand side, paragraphs in the pre-trial brief from 91 to 94. You
12 have all the footnotes and all the witnesses who testified for Zvornik
13 with their number and so far -- and so forth and so on.
14 All this is at your disposal, and you can take a look at it and
15 scrutinise it. It will probably take you hours to peruse through it.
16 Annex 7, Greater Sarajevo. Sarajevo region. Paragraphs in the
17 indictment, paragraphs in the pre-trial brief, footnotes, witnesses and
18 documents. And this page is the second page for Sarajevo.
19 Then Mostar, Annex 8. One page was enough, was sufficient. In
20 the pre-trial brief paragraphs 109 to 116, footnotes, and you have the
21 list of all witnesses who came to talk about Mostar. You have all the
22 necessary reference here.
23 Annex 9, Nevesinje. There again, this tedious work -- work made
24 it possible to illustrate all paragraphs in the indictment and the
25 pre-trial brief, to see what footnotes and witnesses and documents
1 correspond. And I refer to document P31, which is the testimony of
2 Mr. Seselj under oath in the Milosevic case. And you have the transcript
3 references, of course, in the Milosevic case, the French Milosevic
4 case -- the French transcript, which I read extensively.
5 Appendix 10, Hrtkovci. This is a very important city. We have
6 the paragraphs in the indictment, paragraphs in the pre-trial brief, 122
7 to 129 because there's an additional page. Thank you. The witnesses who
8 came to testify. As you see, there is -- there are many of them, and you
9 have their numbers.
10 I will now move on to Appendix 11. And I would like to thank our
11 usher, who is very effective and helps us to save time.
12 Let me explain something to Mr. Marcussen and Mr. Seselj. This
13 chart gives a list of all Croat victims who according to the Prosecution
14 were deported or forced to leave the area, to leave either to Croatia or
15 elsewhere. There are several hundreds of these people. There's 28 pages
16 of this annex.
17 On the left -- right-hand side, I deduct all mentions of people
18 whose destination is unknown. For example, number 4, 18, 19, and 21.
19 Page 2, 26, 27, 28, 33, 34, 36, 40, 43, 47, and 48.
20 For some of these people we know for sure that they did go to
21 Croatia and Zagreb, but for others in the document, all that is stated is
22 destination unknown. We don't know. We don't know whether they left.
23 We don't know whether they left because they were expelled or because of
24 forcible transfer, whether they left of their own volition. There's a
25 doubt. Because of this I delete from Appendix 11, 233 people, which
1 means that should Mr. Seselj be found guilty, as far as I'm concerned he
2 should be acquitted at least for the victims who are listed on the
3 right-hand side column, because I have no element at hand to know whether
4 these people actually left Hrtkovci or not. We don't know where they
6 And Appendix 12, which was what I had regarding the mosques and
7 the Catholic churches. You will see there's a key. SD severely damaged,
8 PD partially destroyed, CD completely destroyed, and AB adjacent
9 building. Each letter gives us a qualification. I divided the religious
10 property into two categories, Muslim sites and Catholic sites. I made a
11 list of all the property that was severely damaged, first column;
12 partially destroyed, second column; or completely destroyed, third
14 For example, you see that the convent of Franciscan sisters was
15 severely damaged, but the church of St. Peter and St. Paul, 19th century,
16 was partially destroyed. This is Annex -- this is for Mostar on this
18 On the next page, we have Nevesinje. Here for Nevesinje, as far
19 as partially -- totally destroyed, completely destroyed, you have them
20 here. And, for example, see that the Islamic archives were completely
21 destroyed. That's on the right-hand column.
22 Then Zvornik. This is very tedious work was done, you know,
23 building by building, and you have the conclusions I drew regarding
24 the -- either the total or partial destruction of these sites. For
25 example, you see that the 18th century mosque of Begsuja was totally
1 destroyed in Zvornik, completely destroyed. And the list goes on.
2 Obviously, there was a huge amount of religious buildings in this city.
3 We'll now move to the Sarajevo region. Novi Grad, Novo Sarajevo.
4 You have a list of buildings here.
5 Vogosca. There again the buildings are divided according to the
6 destruction they incurred. On this page you have Vogosca and Ilijas.
7 The list for Ilijas continues on the next page.
8 Next chart -- no, we've seen everything. We have here on this --
9 these charts all the evidence that could establish the commission of
11 The next question now is who these crimes should be attributed
12 to. In order to do so, I must mention paragraph 4, individual criminal
13 responsibility. Modes of responsibility. In paragraph 130 of the
14 pre-trial brief, the Prosecution asserts that individual criminal
15 responsibility of Vojislav Seselj is incurred in the counts of the
16 indictment pursuant to Article 7(1) of the Statute. That quotes
17 paragraphs 5 to 14 of the indictment.
18 As far as commits is concerned, Vojislav Seselj is prosecuted for
19 having participated in the JCE and also for having physically committed
20 (a) crimes of prosecution -- of persecution through hate speeches as part
21 of the incidents that occurred in Vukovar, Croatia, and Zvornik, BiH and
22 Hrtkovci, Vojvodina, Serbia, and (b) the crimes of expulsion and forcible
23 transfer as part of the incidents that took place in Hrtkovci.
24 As far as direct responsibility of the accused is concerned, I
25 must address the forms of responsibility of the accused. These forms
1 each in turn according to the following outline: Planning, instigating,
2 ordering, committing as part of the JCE, individual commission of crimes
3 of persecution, deportation, and forcible transfer, and aiding and
5 I shall, after I have delivered my reasoning, enter a judgement
6 of acquittal on several counts of the indictment.
7 Planning. The Prosecution, in paragraph 143 of the pre-trial
8 brief avers that the accused planned the crimes of persecution, murder,
9 torture, cruel treatment, deportation, forcible transfer, wanton
10 destruction, and plunder of private and public property in Vukovar and
11 Zvornik, counts 1, 4, 8, 9, and 10 to 14. Paragraphs 15 to 18, 20 to 22,
12 24 to 26, 26 to 34 of the indictment. And the crimes of persecution,
13 deportation and forcible transfer at Hrtkovci, counts 1, 10 and 11,
14 paragraphs 15 to 17, 31 to 33 of the indictment.
15 The Prosecution submits that the mens rea element involved in the
16 planning of the crimes in Vukovar and Zvornik results from (a) his
17 inflammatory speeches, (2) the fact that he approved the sending of his
18 volunteers in these areas when he knew that they had committed criminal
19 acts on the battle-fields. Third point: From the fact that these crimes
20 did in fact take place, were committed.
21 The Prosecution adds that as far as Hrtkovci is concerned, the
22 mens rea involved in planning is exemplified by the statements made by
23 witnesses VS-014, VS-026, VS-1133.
24 I hold first of all that planning implies at its lowest a plan
25 and an architect of that plan, all the more so that in Vukovar the
1 intervention of the JNA could only take place after a decision at a very
2 high level had been taking -- taken involving the military command and
3 that in this context the political opponent in the person of the accused
4 played no part in the planning. The fact that volunteers were present in
5 Vukovar or sent to Zvornik is not, per se, enough to state that he
6 planned or that he was involved in the planning or that he was a
7 perpetrator in the planning.
8 As far as Hrtkovci is concerned, the accused did not plan the
9 deportations or the persecution campaign himself. It is important to
10 note that at the time he delivers his speech, and for those people who
11 have forgotten about it, this was on the 6th May -- 6th of May, 1992. He
12 was on a campaign trail and had no means of coercing the civilian
13 population in his capacity as a possible main perpetrator of the
15 The mens rea element involved in planning cannot be directly
16 drawn from the inflammatory speeches, for a sufficient nexus cannot be
17 drawn between words uttered in Vukovar, which is far from having been
18 established, and a meeting in Mali Zvornik which did not take place at
19 the date specified by the Prosecution, in my view.
20 I hold, secondly, that the fact that the accused approved of the
21 sending of -- of volunteers does not mean that he knew that some of them
22 were going to commit crimes on the ground. In this respect, it is
23 important to make a distinction at the moment in time when the volunteers
24 were sent spontaneously, Borovo Selo, and the sending of volunteers at
25 the request of Slobodan Milosevic in a legal fashion.
1 Furthermore, as things stand, sufficient -- there is insufficient
2 evidence to prove that a member of an SRS -- a volunteer member of the
3 SRS committed a given crime. The fact that the alleged crimes took place
4 does not mean that these crimes had been planned beforehand.
5 It is alleged in the indictment and the pre-trial brief in
6 several instances that volunteers of the SS -- of the SRS, Seselj's men,
7 did participate in the commission of multiple crimes. If it's true that
8 several witnesses, either in the statements they gave to the OTP or
9 during their testimony before the Chamber mentioned the existence of SRS
10 volunteers, Seselj's men, a reasonable trier of fact must nonetheless, to
11 establish what one or more person has said, have material and
12 indisputable evidence.
13 First piece of evidence which should be indisputable, the
14 military booklet of the volunteer, which mentions his assignment to a
15 given post and to a military unit, identified with the initials VP and
16 follows by a number. Refer to Goran Stoparic's witness testimony on the
17 15th of January, 2008, at the hearing held in open session where he
18 explained all of this to us.
19 The second mens rea element which should be -- which should be
20 cross-referenced with the first element is the membership card of the SRS
21 which each party member had.
22 THE INTERPRETER: The second material element, interpreter's
24 JUDGE ANTONETTI: [Interpretation] Without such cross-referencing
25 of these two elements a reasonable trier of fact cannot conclude that a
1 given volunteer, assigned to a given unit, having committed a given
2 crime, was a volunteer of the SRS.
3 Furthermore, the numerous testimonies of Prosecution witnesses,
4 photos and videos adduced and admitted by the Trial Chamber lead to the
5 conclusion that any fighter was wearing patchy clothing and this does not
6 mean that this qualified him as a member of a particular unit in the
7 absence of any insignia or distinctive sign identifying the unit.
8 Likewise, some of them wore the sajkaca, others did not, or wore a helmet
9 or had no helmet and no sajkaca.
10 It is clear that in light of the evidence that has been admitted,
11 each volunteer was submitted to a military chain of command which was not
12 in my view the chain of command of the SRS.
13 I hold, therefore, that the accused should be acquitted on this
14 mode of responsibility based on planning.
15 I'm just looking at the clock. We have approximately ten minutes
16 left. I believe that in ten minutes' time, I will have time to read
17 three pages. I will then have completed one-third of what needs to be
19 Instigation. The Chamber in its majority has decided to only
20 look into this mode of responsibility. I myself review all modes of
22 The Prosecution, in paragraphs 146, 147, and 148 of the pre-trial
23 brief ascertains by relying on various judgements and appeals judgements
24 Kvocka, Kordic, Blaskic, Krstic, Nahimana, Brdjanin, Akayesu, that the
25 accused instigated the crimes of persecution, murder, torture, cruel
1 treatment, deportation, forcible transfer, wanton destruction, and
2 plunder of private and public property in Vukovar and Zvornik, counts 1,
3 4, 8, 9, and 10, 10 to 14, paragraphs 15 to 18, 20 to 22, 24 to 26, 26 to
4 34 of the indictment. And the crimes of persecution, deportation, and
5 forcible transfer in Hrtkovci, counts 1, 10 and 11, paragraphs 15 to 17,
6 and 31 to 33 of the indictment. Through inflammatory speeches he
7 delivered when he visited these localities or other neighbouring
8 localities like Mali Zvornik.
9 As far as was uttered by the accused in Vukovar is concerned, it
10 so happens that the evidence adduced does not prove that the accused
11 uttered these words. In fact, Witness VS-027. On reviewing his
12 testimony -- or when I reviewed his testimony, realised that he is not
13 entirely credible. All the more so that in the Mrksic, Radic, and
14 Sljvancanin judgement that amounts to res judicata, it is mentioned in
15 paragraph 51 the following, I shall read it out. It seems a point of
17 "The Trial Chamber reserves the right to address this in greater
18 detail in its judgement. The Chamber is not persuaded of the honesty or
19 reliability of the witnesses who testified about this. The evidence in
20 this respect is not confirmed by other evidence and in addition there is
21 contradicting evidence regarding Miroslav Radic, Veselin Sljvancanin's
22 presence at this meeting. The Chamber recalls at this stage that it
23 accepts that Vojislav Seselj visited Vukovar on several occasions in late
24 October and early November 1991, but is unable to conclude on the
25 evidence it has heard that Radic and Sljvancanin attended a meeting at
1 which Seselj made such a statement."
2 There is an element of doubt in my view, and this benefits the
3 accused, of course.
4 As far as the speech delivered at Mali Zvornik is concerned,
5 alleged in paragraphs 93 of the pre-trial brief, addressed by the sole
6 witness, VS-017. Quoted in a footnote on page 292, the witness seems
7 uncertain about the date. The confusion may arise from the fact that
8 another speech was delivered in August of 1990.
9 As far as the speech delivered at Hrtkovci on the 6th May, 1992,
10 is concerned, mentioned in paragraph 127 of the pre-trial brief, the
11 statements of Witness VS-1133, quoted in the form of a footnote on page
12 441 do not seem credible, all the more so that the speech that the
13 Chamber has received does not mention his statement in any way. Let me
14 remind you of the words purportedly uttered by the -- the accused that
15 mixed marriages needed to be purged, mixed marriages between Serbs and
16 Croats, and that the children of this union should be killed. VS-133,
17 line 10624 and 10664.
18 These statements do not figure in the official speeches we have
19 received. However, the speech delivered at Hrtkovci through the words
20 spoken fall within the scope of counts 1, 10, and 11 of the indictment
21 under instigation to commit persecution, deportation, and forcible
22 transfer. At this stage of the trial, it cannot be determined whether
23 under counts 1, 10 and 11 of the indictment the accused Seselj incited or
24 instigated or committed, for either he instigated or he committed. He
25 can't, in my view, be both an instigator and a perpetrator. It's either
1 one or the other. Therefore, irrespective of this issue, the Prosecution
2 has adduced enough evidence on the instigation of crimes of persecution,
3 deportation, and forcible transfer at Hrtkovci. However, he should be
4 acquitted on the crimes of murder, torture, cruel treatment, wanton
5 destruction and plunder. That said, the documents quoted by the
6 majority, P1264, P1259, P1257, P1192, P1293, P0685, P526, P528, P1298,
7 P1200, P1180, P1324, and the witness testimonies of VS-016, VS-033,
8 Stojanovic, Bosanac, and VS-004 seem insufficient to establish a nexus
9 between the instigating statements the accused is charged with and the
10 crimes listed under counts 4, 8, 9, 12, 13, and 14 of the indictment. I
11 will finish in a few minutes' time. I should also mention in greater
12 detail, counts 8 and 9 on torture and cruel treatment. The majority of
13 the Bench relies on VS-1032 to establish the commission of the crimes in
15 If it is true that the head of the unit, Cele, mistreated and
16 killed detainees and that he was a volunteer that had been proclaimed
17 Vojvoda, and that other volunteers headed by a so-called Repic had
18 committed torture and cruel treatment in the municipality of Zvornik,
19 this does not mean that a reasonable trier of fact can draw the
20 conclusion that these acts were committed on the instigation of the
21 Accused Seselj. Indisputable or compelling evidence, such as documents
22 or statements, establishing a positive nexus between the crimes and the
23 accused is required.
24 The Chamber in its majority found that sufficient evidence was
25 adduced with regards to count 8 and 9, instigation in Vukovar; Berghofer,
1 VS-1051, Vojnovic, VS-016. Zvornik; VS-1012, VS-1013, VS-1064, VS-1065,
2 P307, P389, P469. Sarajevo; VS-1055, P455, P457. Nevesinje; VS-1022,
3 VS-1051. Mostar; Karisik, Bilic.
4 If a reasonable trier of fact could conclude that torture and
5 cruel treatment were, in fact, committed, there is nonetheless not
6 sufficient evidence to establish a -- to establish a nexus between the
7 Accused Seselj and these crimes for instigation and this form of
8 responsibility. As an example, what words uttered led in the mind of the
9 perpetrator of the crime to brutal and inhuman living conditions for
10 civilians in the basement of the Kilavci thermal plant? Witness VS-1022
11 ascertains that this occurred, that no one doubts, but what are the
12 reasons for that, the words uttered by the accused or any other reason?
13 There again, I entertain doubt as to counts 7, 8, and 9,
14 instigating to commit murder.
15 Tomorrow, I'll look into ordering, and I will at great length
16 develop another topic. Forgive me for that, but it is essential. I will
17 address the issue of the joint criminal enterprise, and I may as well
18 tell you straight ahead beforehand, because this may give you food for
19 thought overnight. I find that Mr. Seselj was not a participant in a
20 joint criminal enterprise together with Milosevic, Karadzic, et al. But
21 all this will be proven and demonstrated tomorrow, based on a very
22 lengthy reasoning that is going to be quite time-consuming tomorrow.
23 So there it is. I got to page 25. We've got 50 pages for
24 tomorrow. Rest assured, we won't have to work until midnight tomorrow.
25 This being said, I wish you all a very good evening. We shall reconvene
1 tomorrow to go on with the reading.
2 --- Whereupon the hearing adjourned at 4.49 p.m.,
3 to be reconvened on Thursday, the 5th day
4 of May, 2011, at 2.15 p.m.