1 Tuesday, 1 July 2003
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE MUMBA: Please call the case.
6 THE REGISTRAR: Good morning. Case number IT-95-9-T, the
7 Prosecutor versus Blagoje Simic, Miroslav Tadic, and Simo Zaric.
8 JUDGE MUMBA: Yes. We're continuing with the Prosecution.
9 Mr. Pantelic.
10 MR. PANTELIC: Your Honour, good morning. Allow me, please, to --
11 before we start, just to introduce that today Defence for Dr. Simic is
12 appearing with our young and bright colleague, Mr. Jason Moore from
13 Houston, from South College of Law. Thanks to the arrangements from
14 registry and the colleague from Houston, he's here in the capacity of
15 intern and he did great contribution to our work in the drafting and
16 preparing of our briefs. So I'm very pleased to have Mr. Moore with us
18 JUDGE MUMBA: Thank you.
19 You're welcome, Mr. Moore, to the Trial Chamber.
20 We'll proceed. The Prosecution.
21 [Prosecution Closing Statement]
22 MR. RE: Good morning, Your Honours. In the remaining time, there
23 are several miscellaneous matters from yesterday which I would address the
24 Trial Chamber on before I turn to sentencing. Unfortunately, I didn't
25 prepare a -- and I -- an outline this morning, but I can tell you what the
1 four -- or the five areas are. One is the analysis of the evidence of
2 Mr. Paleksic in relation to Dr. Simic's evidence. The second one is
3 references in Mr. Zaric's book to which the Prosecution says the Trial
4 Chamber should pay particular attention. The third area is the report of
5 retired General Wilmot, that's a very quick one. The fourth one is an
6 observation on a legal matter, the underlying acts. The fifth is several
7 observations on the exchange and exchange system and document P128, which
8 is the instructions from the Prime Minister, and the last one is sentence,
9 and I'll cover those matters within the remaining time.
10 The first matter to which I direct Your Honours' attention is the
11 evidence of Mr. Paleksic, who the accused Dr. Simic called in his defence
12 in January this year. The Prosecution's submission -- this is an
13 important witness whose evidence the Trial Chamber should scrutinise with
14 great care. Part of Dr. Simic's defence, as the Trial Chamber is aware,
15 is that he objected when he found out about what -- it is unclear exactly
16 what he found out from his testimony. He objected to some of the
17 activities of Mr. Todorovic, who, of course, gave quite lengthy testimony
18 in these proceedings about his own activities and his own breaches or
19 serious violations of international humanitarian law when he was serving
20 as the Crisis Staff's police chief.
21 The evidence of Dr. Simic - and this is at pages 12420, 12421, and
22 also at 12581 to 2 - is that he spoke to the police chief, Andrija
23 Bilosevic, and with members of the Ministry of the Interior in relation to
24 Todorovic's activities. The summaries which Dr. Simic provided in
25 relation to Slavko Paleksic seem to suggest that he was the person who was
1 going to give evidence about the visits or the inspection of the Bosanski
2 Samac police station at Dr. Simic's initiative. In his evidence,
3 Dr. Simic, at 12582, referred to an inspection and the establishment a
4 "commission," because the Ministry of the Interior has inspectors, its own
5 inspectors, and he established a commission of inspectors that came to
6 Samac to check the work of Stevan Todorovic in the Ministry of the
7 Interior. That commission stayed and it sort of peters out there. The
8 suggestion if that a commission was established to oversee the work of
9 Todorovic and Paleksic was going to be the person who enlightened the
10 Trial Chamber as to Dr. Simic's humanitarian and political concerns about
11 Todorovic's activities.
12 Now, of course, Paleksic, though Mr. Paleksic, as the Trial
13 Chamber heard, is a former judge, public prosecutor, a municipal
14 secretary, and after the war, he was even a Minister of the Interior of
15 Republika Srpska. He was also a man who actually worked as a legal
16 assistant for Dr. Simic on this case, and one whom one might have expected
17 to provide some favourable evidence, at least evidence in -- correlating
18 to the summary provided. However, Paleksic's evidence is important as to
19 what actually did happen, and it's important in relation to the
20 Prosecution's submission about the nature of the enterprise in Bosnia, as
21 implemented in Bosanski Samac through the various participants of the
22 police, the Serbian police, the MUP, the Crisis Staff, the military, and
23 so on.
24 Paleksic testified as to five investigators arriving at the
25 Bosanski Samac police station. Paleksic was responsible for "legal
1 affairs," he said. Two of the other investigators dealt with police
2 matters, one with criminal investigation issues, and another was dealing
3 with financial matters. The evidence was remarkably vague, one would
4 think, in relation to this crack team of investigators arriving,
5 descending from the Ministry of the Interior upon this regional police
6 station to investigate matters of some concern.
7 Now, the date of this is very important in terms of Prosecution's
8 submission. Paleksic's evidence was that it was in December 1992, and the
9 visit was a three- or four-day visit. This is important because it must
10 have been after Dr. Simic received his copy of the 13 signatories exhibit,
11 that is, P127, which is dated the 1st of December, 1992, and the evidence,
12 which seems to be uncontested, is that the meeting between the Crisis
13 Staff, or members of the Crisis Staff, and the signatories on the 2nd
14 Posavina Brigade occurred within days. So at the most generous estimate
15 for Dr. Simic, there may have been an overlap between his being informed
16 and that meeting and the arrival in Bosanski Samac of the team of
18 Now, of course, as you know, in P127, one of the allegations which
19 is detailed -- which is outlined is of "the massive arrests and isolation
20 of Croats and Muslims without any criteria," and some of the prisoners, of
21 course, these are the prisoners in Todorovic's custody, being subject to
22 measures such as abuse, torture, or even killing, characteristic only of
23 war criminals of Ustasha origin."
24 Todorovic, as the Trial Chamber is aware, testified to and
25 admitted to and was pleaded -- and pleaded guilty to and was sentenced for
1 crimes occurring in the police station, the very same police station that
2 was supposed to have been investigated in December 1992, crimes occurring
3 before, murder, sexual assault, repeated beatings of prisoners, unlawful
4 arrest, detention, confinement of Bosnian non-Serbs, their cruel and
5 inhumane treatment, other crimes, of course, occurred outside of the
6 police station, but they were crimes which the Prosecution submits were
7 well known in Bosanski Samac to almost -- or to everyone.
8 What was Paleksic's task? Well, his task, as he said it, was to
9 investigate irregularities in the issuing of drivers' licences. And in
10 his three or four days in this inspection of the torture chamber,
11 otherwise known as the Bosanski Samac police station, he found over 100
12 transgressions as far as the issuing of drivers' licences were concerned.
13 That was at page 1 -- sorry 13281. The result of his inspection was that
14 he found that people were being issued drivers' licences without proof of
15 their taking a driving test. And as far as Paleksic was concerned, the
16 former judge, public prosecutor, Ministry of the Interior official with a
17 war assignment, in charge of personal and legal affairs at the Doboj
18 regional supervising station, as far as he was concerned, this team of
19 which he was a part was not investigating any of the matters in the
20 indictment to which Todorovic had pleaded guilty, not even the more minor
21 ones in the scale of things to which he had pleaded guilty, that is, the
22 beatings, as opposed to the torture or the murders or the sexual
24 Mr. Paleksic heard nothing about Todorovic's well-known and
25 notorious activities in that police station during his visit. And most
1 significantly, and most significantly for the defence of Dr. Simic or the
2 defence he a attempted to mount is that Dr. Simic never mentioned a thing
3 to Mr. Paleksic, his star witness, as to the investigation in the police
4 station, at his instigation, he says, about any of the matters referred to
5 in Mr. Todorovic's testimony, about any of the matters for which he was
6 sentenced, even, as I said, earlier, the most minor ones.
7 Now, the Prosecution's submission is that the only conclusion the
8 Trial Chamber can draw from this is that even Dr. Simic's own witnesses
9 don't support him on this point and he was not telling the truth when he
10 gave his evidence before this Trial Chamber.
11 And what was the result of the inspection, apart from the finding
12 of the 100 or so driving licences transgressions? Well, the supervisor,
13 Blazanovic, was appointed for about three months to supervise such things
14 as how they were going to treat citizens. Well, one would hope not to
15 murder them. And the dress code, that's at page 13828. Again, another
16 important aspect for the Prosecution's case is that Todorovic, a murderer,
17 assaulter, torturer, and member of the Crisis Staff, remained in this
18 position for some years afterwards. He remained in his position as the
19 chief of the Bosanski Samac police station after having committed the
20 gravest breaches of international humanitarian law, not to mention
21 domestic laws, for the balance of the indictment period, the end of 1993
22 and several years afterwards.
23 There is not a shred of evidence before this Tribunal that
24 Dr. Simic, who simultaneously maintained his position at the same time as
25 Todorovic as president of the Samac municipality, that he did anything or
1 used his offices or used his influence to bring Todorovic to justice for
2 anything, any of the many crimes, the daily crimes, that Todorovic
3 committed while in the police station. The only justice Todorovic is
4 faced with is before this Tribunal. The only inference the Prosecution
5 says, from that is that Simic approved of the crimes that Todorovic
6 committed as part of the joint criminal enterprise.
7 Another matter which I'll swiftly deal with is the report of
8 General Wilmot, retired General Wilmot, which is D182/1, tendered by
9 Dr. Simic. The Prosecution submits that the Trial Chamber should
10 disregard the report almost in its entirety, with the exception of pages
11 16 to 28, which, as the Prosecution has outlined to the Trial Chamber
12 before, were basically plagiarised from a report of an OTP a military
13 analyst, Mr. Butler, as to the subordination within the Bosnian Serb
14 army. Those parts may be peripherally relevant to subordination issues,
15 if the Trial Chamber needs to look at subordination issues, but otherwise
16 the report is irrelevant. It's made by a person with no qualifications
17 permitting him to offer any historical or political opinions on historical
18 or political matters, unlike the two well-qualified Prosecution experts,
19 Drs. Gow and Donia. And in this respect the Prosecution asks - and we
20 apologise for our omission in our written final trial brief - to
21 incorporate the submissions we made in our motion of the 24th of April,
22 2003, in relation to the weight and the relevance of retired General
23 Wilmot's report.
24 The Prosecution notes in relation to a matter I brought up
25 yesterday on how the Trial Chamber should deal with the underlying acts
1 charged in support of -- or charged to support the charges of complicity
2 in the indictment at paragraphs 11 and 12. The Prosecution asked the
3 Trial Chamber to deal with proof in this manner. We asked that -- or we
4 submit that the Trial Chamber only has to find participation in one of the
5 underlying acts established to prove participation in persecution. The
6 Trial Chamber does not need to enter a finding of guilt or acquittal in
7 relation to the underlying acts, and most significantly so because some of
8 them may not be crimes in their own rights. The Prosecution says the
9 appropriate finding would be a finding, if the Trial Chamber is satisfied
10 we have proved our case in relation to any of them, a finding that the
11 Trial Chamber is satisfied beyond reasonable doubt of the accused's
12 involvement in whichever underlying act, and therefore is satisfied beyond
13 reasonable doubt and can convict of the count of persecutions as a crime
14 against humanity, or -- I'm sorry - persecutions as a crime against
15 humanity. The Prosecution says it is not necessary and the Trial Chamber
16 should not acquit on those underlying acts but the Trial Chamber is
17 certainly entitled to find that they're not satisfied that the Prosecution
18 has proved its case beyond reasonable doubt in relation to any of those
19 particular matters.
20 The Prosecution also -- I also wish to add so several matters from
21 our analysis of the exchanges yesterday and make these following points,
22 and we urge the Prosecution to view the exchanges or the exchange system
23 as part of the overall campaign or system of persecutions in place in
24 Bosnia-Herzegovina as implemented in Bosanski Samac in the indictment
25 period. And we ask the Trial Chamber to scrutinise especially the
1 evidence of Milutin Grujicic, who was the person most qualified - that's
2 Mr. Tadic's witness - to speak about the interplay and the coordination
3 between the various Exchange Commissions in Bosnia and Herzegovina, in the
4 Republika Srpska, in the indictment period.
5 The Prosecution emphasises that Grujicic's evidence establishes
6 the organised and systematic nature of the exchanges and that it was
7 highly coordinated, it was coordinated amongst the six different corps of
8 the VRS, including the 1st Krajina Corps and the East Bosnia Corps, which
9 was in the Bosanski Samac area, and Mr. Tadic's Exchange Commission was an
10 integral part of the overall exchange system which was operating in Bosnia
11 at the time. And in this respect, the Trial Chamber -- the Prosecution
12 reminds the Trial Chamber of the Special Rapporteur's report, which we've
13 referred to, as paragraph 138 of our chronology, and the conclusion.
14 That's the Special Rapporteur's report of the 27th of October, 1992, that
15 the Special Rapporteur finds "widespread and serious human rights
16 violations continued to be committed in Bosnia and intensified in certain
17 respects, killings, beatings, rapes, destruction of houses and sacred
18 sites, threat, pressures, and terrors. The Muslim population are the
19 principal victims and virtually threatened with extermination." And we
20 emphasise this: Ethnic cleansing is not the consequence of the war but is
21 its goal. To a large extent, it had already been achieved. And we ask
22 the Trial Chamber to use the words, the report of the Special Rapporteur
23 on the ground in Bosnia in the indictment period to support the
24 Prosecution's case and its allegations of the exchanges as part of the
25 ethnic cleansing, as part of the persecutions.
1 While I'm on the chronology, there are two things which the
2 Prosecution wishes to amend, and we will file a revised chronology. There
3 were two paragraphs which should not be in the chronology. They slipped
4 in or they didn't slip out during the proofreading. They're paragraphs 81
5 and 108. And we ask that the Trial Chamber to disregard those, that's 81
6 and 108, for the moment. We will file a revised one as soon as possible.
7 And paragraphs 63 and 64 are on the wrong side of the page and one of them
8 is out of order. We will also attend to those particular matters.
9 The Trial Chamber -- I withdraw. The Prosecution didn't address
10 yesterday on P128 and due to an omission it was also slipped out of the
11 final trial brief in proofreading, and that is an important document to
12 which we ask the -- to which we refer your attention and ask you to
13 scrutinise very carefully as part of the Prosecution's case of an
14 organised campaign and the links between the Bosnian Serb leadership and
15 the Bosanski Samac municipal leadership and the manner in which the
16 persecutions were carried out, and that is P128, which is the instructions
17 for the work of the municipal crisis staffs of the Serbian people, issued
18 by the Prime Minister, the Republika Srpska Prime Minister, on the 26th of
19 April, 1992, and referred to at paragraph 90 in our chronology. We ask
20 the Trial Chamber to take into account all of the instructions there and
21 how they fit into the Prosecution's case of the systematic and widespread
22 nature of the persecutions.
23 The Prosecution also refers you -- I won't take you to the
24 passages, but I refer you to the following pages in Mr. Zaric's book,
25 which is P180 and P180A, and we ask you to scrutinise these particular
1 pages or give particular pages to them, at pages 127, in which Mr. Zaric
2 refers to the strategic significance of the Posavina corridor; page 142,
3 when he refers to before the takeover, why shouldn't the Croats try to
4 make up for Bijeljina, Zvornik, and Vlasenica right here; pages 148 and
5 149 regarding the establishment of the Crisis Staff and the Serbian
6 municipality and the announcement and how we say those passages support
7 the Prosecution's case; page 152, where he refers to weapons collection on
8 the 17th of April and that members of the Serb police will be used in
9 places where resistance is possible or probable, which the Prosecution
10 says supports its case; page 154, where he refers to the method of
11 collection by the paramilitary units, where he says weapons for them were
12 the secondary interest and a mere cover for robbery; and at page 154,
13 where he refers to talking to Mr. Radovan Antic, then commander of the 4th
14 Detachment, telling him to call Nikolic, those guys are looting all over
15 the town, and Antic's response: "I've heard what he said. Tadic has
16 reported the same thing," which the Prosecution says corroborates the
17 Prosecution case that Mr. Tadic was in fact involved in weapons collection
18 on the 17th of April, contrary to his own evidence. And of course the
19 evidence --
20 JUDGE LINDHOLM: Excuse me for interrupting you. You mentioned
21 page 154 twice. Was that your intention? On line 3, page 11, line 3, and
22 then anew on page 11, line 6.
23 MR. RE: Yes, it was, Your Honour. There were two passages on the
24 same page.
25 JUDGE LINDHOLM: Okay. And this I take it is from the English
2 MR. RE: From the English translation.
3 JUDGE LINDHOLM: Thank you.
4 MR. RE: Page 157, referring to the prearranged nature of the
5 arrests, starting with, "the arrest, detention, and confinements are a
6 special chapter in the longest day in the recent history of Samac and that
7 people must be arrested from pre-prepared list," that passage; page 160,
8 where Mr. Zaric refers to an attack from the village of Prud: "Early in
9 the morning there was a minor attack more in the nature of an incident
10 really," which the Prosecution says supports its case that there was no
11 attack from Prud or no threat from the Muslims or Croats; page 169, where
12 Mr. Zaric refers to spending the next few days at the MUP, preparing for
13 his interrogations of the important politically or persecutorily detained
14 prisoners. This particular passage is important in relation to the
15 evidence -- Mr. Zaric's own evidence of finding P71, which is the
16 isolation order, at the Bosanski Samac police station after -- had to have
17 been after the 15th of May, which was the date of the order being made,
18 and seeing the document in three different offices; page 200, exchanges
19 and isolations at Zasavica, where he says: "I was soon to learn the use
20 value of human beings and the price of their heads and the calculation of
21 ethnic leaders." The Prosecution says that goes to his knowledge of the
22 system of exchanges as persecutions at the time, which is contemporaneous
23 with his involvement in negotiations in relation to prisoners from Odzak;
24 also at page 201, where he refers to -- it was his -- refers to the
25 telephone call to Alija Izetbegovic, and Mr. Zaric says that it was indeed
1 his suggestion, Mr. Zaric's suggestion, to call Mr. Izetbegovic, and then
2 he says: "So we brought Alija's relative, Izo Izetbegovic, to make the
3 call," which the Prosecution says corroborates its own case and
4 Izetbegovic's evidence as to what happened; and page 203 in relation to
5 the Odzak exchanges; and page 217, in relation to - I may have quoted
6 this - the role of the paramilitaries, where he said: "We did not
7 begrudge them the recognition they deserved." I think I quoted that to
8 him in his evidence. The Prosecution asks you to scrutinise that passage;
9 and finally at 243, where he refers to an interview with Croatian
10 journalist and ethnic cleansing, and the fact that it had occurred on both
12 We ask you to especially scrutinise those pages.
13 I finally turn to one matter before the sentencing which will only
14 take me a moment, and that is the evidence of Professor Nikolic, who was
15 the -- of course, you heard Dr. Simic or the joint defence constitutional
16 expert. We ask the Trial Chamber to particularly look at pages 12165 --
17 well, 12164 to 7 in relation to the activities which were pleaded in the
18 indictment and which the Trial Chamber has heard much evidence and which
19 the Prosecution said has established beyond a reasonable doubt, and the
20 fact that Professor Nikolic says each of those would be unconstitutional
21 under the Republika Srpska constitution. And that can be used in relation
22 to a finding that the matters complained of were illegal as a breach of a
23 law or a law or a human rights document.
24 Finally, I turn to the subject of sentencing. The Prosecution
25 makes the following submissions in relation to all three accused. They
1 are set out quite comprehensively in our final trial brief. During the
2 indictment period, the Crisis Staff, as the Trial Chamber has seen from
3 the document I just referred to, P128, basically controlled all aspects of
4 life in -- life and work in Bosanski Samac. The Crisis Staff, and then
5 the War Presidency, issued hundreds, if not thousands, of orders affecting
6 every aspect of life of the inhabitants of Bosanski Samac during the
7 indictment period. As we have outlined and as you have heard, they
8 implemented an unimaginable system of persecutions against the non-Serb
9 population, culminating, the Prosecution says is established by the
10 evidence, in their forcible expulsion from their homes and the
12 The Prosecution has established beyond a reasonable doubt that
13 each of the three accused participated knowingly and willingly in these
14 most serious and grave breaches of international humanitarian law. For
15 their willing participation in what we have described as ethnic cleansing,
16 the international community demands severe and salutary punishment, as
17 retribution and deterrence for what occurred, for the crimes of the
19 Several matters we draw your attention to at the moment: In
20 sentencing, upon a finding of guilt, the Trial Chamber should consider,
21 from the evidence you've heard, the long-term effects on the numerous
22 victims of the persecutions and deportations in Bosanski Samac
23 municipality. The Trial Chamber has only heard but a representative
24 sample of what the victims experienced and endured and what many are still
25 experiencing and enduring to this very day, including the -- the Trial
1 Chamber heard of their long-term psychological, physical, and even
2 economic effects, where people still don't have their homes and lost all
3 their possessions, the long-term devastating effects on the victims of the
4 accused's egregious crimes. They are aggravating features in common to
5 all three accused. These aggravating features, the Prosecution says, are
6 firstly, the willingness of their participation, which the Prosecution has
7 established from the wealth of evidence of the control exercised by the
8 Crisis Staff and the participants in this enterprise over the lives of the
9 unfortunate victims of their campaign.
10 Secondly, the -- sorry - the duration of the conduct. With
11 Mr. Tadic and Dr. Simic, it was right to the end of the indictment
12 period. The Prosecution, of course, says that with Mr. Zaric he was no
13 longer part of it. The Prosecution concedes, after December 1992. The
14 duration of his participation is not as long but is nevertheless
15 significant in the scheme of persecutions.
16 The Trial Chamber should also consider as an aggravating feature
17 the educational background of each of the three accused and their role as
18 community leaders before their participation in the persecutions and
19 deportations. All three were educated, and Dr. Simic, of course, is a
20 doctor of medicine, and the Prosecution says, and the case-law supports,
21 that this aggravates their conduct. These were people who knew better and
22 should have known better.
23 Turning to Dr. Simic, Dr. Simic is a doctor engaged in conduct
24 which was repugnant to his humanitarian training. He, as you have heard,
25 was at the apex of the system of persecutions and deportation in Bosanski
1 Samac. He was one of the architects. He was one of the main people
2 employed in implementing the persecution on the ground through the most
3 insidious methods in Bosanski Samac. There are no mitigating features in
4 relation to Dr. Simic. He has shown a complete lack of remorse for
5 everything that he did and indeed everything that happened. Not only does
6 Dr. Simic deny any wrongdoing at all, he appears to deny any knowledge,
7 apart from attempting to blame everything conveniently on Todorovic, who
8 of course has pleaded guilty and has been sentenced and can be safely
10 The Trial Chamber is also entitled to consider the fact that he
11 has not cooperated with the Tribunal in its valuable work, attempting to
12 promote reconciliation in the former Yugoslavia and to bring justice to
13 the victims and to bring to justice those responsible for these most
14 serious violations of international humanitarian law. The Prosecution
15 submits or recommends that Dr. Simic deserves a severe and salutary
16 sentence of over 20 years imprisonment. The range we recommend is between
17 20 and 25 years.
18 Turning to Mr. Tadic, Mr. Tadic, of course, like Dr. Simic, was
19 also a respected person in his community, a school teacher, a cafe owner,
20 a prominent local personality. He used that position and he used that
21 position for his ideological and personal gain during the war, during the
22 indictment period. He took on a key role in persecuting and deporting the
23 non-Serbs. Without Tadic or Tadic's, people willing to take on the role
24 of deporting, expelling people from their homes, the ethnic cleansing
25 could not have occurred in Bosanski Samac. And Mr. Tadic most cynically,
1 the Prosecution says, attempted to portray himself as a humanitarian,
2 helping those unfortunate people in their prison cells, to escape from the
3 horrors of life. The Prosecution says nonsense. He was an integral part
4 of the system.
5 Like Dr. Simic, there is no real mitigation in relation to
6 Mr. Tadic's behaviour. He too has shown no remorse. He too has failed --
7 has not cooperated in this Tribunal's most valuable work. But an
8 additional aggravating factor in relation to Mr. Tadic is the abundance of
9 evidence that he personally benefitted from the misfortune, the agony of
10 those imprisoned, those who were desperate to pay their way out of the
11 torture and persecution that they were suffering. The evidence of his
12 soliciting and accepting bribes, large sums of money, jewellery, gold, in
13 times when the economy was shot, so to speak, and those were the most
14 valuable trading commodities.
15 The evidence was he was one of the wealthiest people in Samac
16 before the war. Well, the evidence is he was after the war too. And the
17 Trial Chamber should find the reason is because of his acceptance of
18 bribes from those desperate to leave the hell hole that Bosanski Samac had
19 become for non-Serbs.
20 We ask the Trial Chamber to find as an aggravating feature
21 Mr. Tadic's personal benefiting from the misery of those victims. For his
22 role in the persecutions and deportations, the Prosecution also recommends
23 a severe and salutary sentence designed to deter those who may engage in
24 these practices in the future. We recommend a sentence of at least 15
25 years, between 15 and 20 years.
1 Finally, turning to Mr. Simo Zaric. Mr. Simo Zaric was also a
2 community leader. He, of course, was a former chief of public security.
3 He informs us that he was the youngest ever appointed in the history of
4 Bosnia-Herzegovina, a man whose job had been to uphold the law for many
5 years, a man looked up to in his community, a man about whom his fellow
6 Serb citizens spoke highly. He too willingly participated in the system
7 of persecutions and exchanges. He had his place in that system. It was
8 not as great. It was a lesser role than the architect of the system in
9 Bosanski Samac, Simic, and the chief deporter, Tadic, but it was a role
10 that was nonetheless significant in the scheme of things in a small
11 municipality. The system of persecutions required willing participants
12 like Zaric at every level; otherwise, it could not have been successful
13 and as successful as it was in ensuring that there were almost no Muslims
14 or Croats left in the municipality by the end of 1993, when there they had
15 previously been a majority of the population.
16 There are no mitigating circumstances in relation to Mr. Zaric
17 either, in relation to his participation. He too has not cooperated with
18 the Tribunal in its valuable work in the former Yugoslavia. He has, of
19 course, expressed apologies to the victims, as the Prosecution supposes he
20 really had to when faced with the evidence, his interviews, and his own
21 book. His apology was for what happened to the victims, but there is not
22 one word of remorse spoken for his own role in this, nor even an
23 acknowledgment of his own not insignificant role in the scheme.
24 The Prosecution submits that even if the Trial Chamber were to
25 find his guilt established as an aider or abettor, which of course you
1 could, as opposed to a principal participant on the evidence, or even as
2 an aider and abettor, his role was significant in furthering the system
3 the enterprise in Bosanski Samac and the deportations of the non-Serbs.
4 In his role too, he should receive a salutary and severe sentence. The
5 Prosecutor recommends a sentence of at least 10 and up to 15 years. The
6 Prosecutor also submits in relation to all three, if you cumulatively
7 convict, as we have said you can and submitted you can, you must bear in
8 mind the principle of totality in sentencing for all three offences, and
9 our submissions of 20 to 25 for Dr. Simic, 15 to 20 for Mr. Tadic and 10
10 to 15 for Mr. Zaric are made in that light. Those are the Prosecution's
12 JUDGE MUMBA: Thank you very much.
13 We now turn to the first defendant, Dr. Blagoje Simic's Defence,
14 for their closing arguments.
15 [Defence Closing Statement]
16 MR. PANTELIC: Yes, Your Honour. Good morning to everyone.
17 First, Your Honour, allow me to deal with some housekeeping matters. In
18 fact, after the reviewing our brief, due to the typing errors, we found
19 that the reference to certain exhibits in the number of footnotes does not
20 correspond. So just for the record and for the benefit of the Trial
21 Chamber and our learned friends from the Prosecution, I'm speaking about
22 the footnote 17. Instead of P109/1 and elsewhere in the brief, it should
23 be "D." Obviously, when we have /1, we know that this exhibit relates to
24 Dr. Simic. But there was just an error between the letter "P" and "D."
25 So instead of "P," it should be "D."
1 Then same applies to footnote 18, 28, 50, 52, and then also typing
2 error in footnote 677, instead of letter "Y," it should be "T," as in
3 transcript. Same applies to footnote 682 and 683. Also, whenever in the
4 brief when the Defence makes reference to the exhibits, it should be also
5 added "ter," because when we are speaking of exhibits, we are speaking in
6 totality of English version and B/C/S version. And then small error in
7 our table of contents. Instead of "section 7," it should read "part 7."
8 And also, Your Honours, during the work on our pre-trial brief -
9 sorry - closing brief, we found certain inconsistency between the
10 electronic version of transcripts and so-called hard copy version of
11 transcripts. Namely, after the page 18814, if someone is reading
12 electronic version, the page number should be deducted for six pages,
13 after the page 18814. Otherwise, all references made in our brief are
14 actually based and related to the hard copy transcript that we usually
15 receive from the registry after the every day of proceedings.
16 I believe that this discrepancy covers, let's say, seven or ten
17 days in May, mostly through the testimony of Mr. Simo Zaric.
18 JUDGE MUMBA: Mr. Pantelic, for these corrections, the Trial
19 Chamber would suggest that you file a correction page for all the
20 corrections, so that it is attached to your briefly.
21 MR. PANTELIC: Yes, Your Honour, but in fact I made a correct
22 version. My version is based on the documents that I'm receiving from the
23 registry. But I notice that my learned friend from the Prosecution, they
24 make reference to the electronic version. So I'm working from the
25 documents that I usually receive from the registry.
1 JUDGE MUMBA: Very well, then.
2 MR. PANTELIC: Thank you. Thank you for your attention, Your
4 Blagoje Simic. Blagoje Simic, Blagoje Simic, Blagoje Simic. We
5 heard on numerous occasions in the submission of the Prosecution name of
6 my client. And then like the echo in my ears, I hear only first three
7 letters of his name, blah, blah, blah, blah, blah. And then today when is
8 the birthday of Dr. Simic we heard the present -- certain present from the
9 Prosecution to him, but, Your Honour, allow me to deal with the case.
10 Dr. Simic is not guilty. He is not guilty because he was not
11 involved in any activities that would constitute a crime, be it under the
12 domestic or international law. Yes, he was a member of Crisis Staff.
13 Yes, he was a member of SDS. And yes, he was the speaker of the Crisis
14 Staff. But in his capacity, he was never involved in any of the
15 activities that the Prosecution had alleged and tried but failed to prove
16 throughout this trial.
17 Who was Dr. Simic back in that period? He was by all means an
18 archetype, a young man from humble beginnings from the area, who worked
19 very hard and very diligent in becoming and finishing medical school.
20 Returning back to the area where he was born to help his fellow citizens
21 and members of his community. You heard testimony how he specialised in
22 the field of medicine. One of his primary contributions was providing
23 service to all of the citizens and residents of this community with
24 chemodialysis, be they Serb, be they Muslim, be they Croat.
25 He did not discriminate. To appreciate the situation, you have to
1 look at Dr. Simic not through what was happening throughout the war, but
2 also what was happening before the war, before the April of 1992. We have
3 to look at country that shook itself from the grips of Communism and was
4 in transitional process into a democratic society. This is indeed
5 significant because with this new situation, members of the educated class
6 found themselves with the particular obligations in becoming a part of
7 this movement, of these changes. So it was not unusual that someone with
8 Dr. Simic's educational background, being an esteemed member of the
9 community, would get involved in politics. And so at age of 30, he joined
10 SDS, and soon after he was elected to the position of the vice-speaker of
11 the Municipal Assembly of Bosanski Samac. Who would have thought that
12 Dr. Simic could never have imagined that within a short period of time a
13 war would break out, that would in many ways polarise the community
14 structure of Bosnia-Herzegovina? Or is it because he was already in
15 politics because of his level of diligence in commitment to his public
16 service, that when the situation become necessary to form a Crisis Staff,
17 he was asked to do his civil duty?
18 It needs to be underscored that the concept of forming of Crisis
19 Staff was not unique in this area. It was not unique to B and H and it
20 was not unique throughout the various parts of the former Yugoslavia. The
21 concept of forming of Crisis Staff had been around for decades, and it was
22 a means of dealing with various crisis, natural disasters, or emergencies
23 on an ad hoc basis at the local level. It was a well-known term within
24 the world history, most recently after the tragic days of 11 September in
25 New York.
1 And in fact, we have heard that all sides - the Muslims, the
2 Croats, as well as the Serbs, throughout B and H - formed crisis staffs,
3 because this war created a crisis in every single community, and Bosanski
4 Samac was no different.
5 JUDGE WILLIAMS: Excuse me, Mr. Pantelic.
6 MR. PANTELIC: Yes, Your Honour. I'm waiting for the B/C/S
7 translation. Please.
8 JUDGE WILLIAMS: You mentioned in your, I think, opening couple of
9 lines, and I also note in the written brief that you are referring to
10 Dr. Simic as being the speaker of the Crisis Staff, the speaker of the War
11 Presidency, and so on, and also vice-speaker of the Municipal Assembly,
12 and so on. I can't seem to find the paragraphs here, but --
13 MR. PANTELIC: Yes, Your Honour.
14 JUDGE WILLIAMS: You know what I'm talking about.
15 MR. PANTELIC: Yes.
16 JUDGE WILLIAMS: Now, in parliamentary systems that I'm familiar
17 with, the speaker has a very special function, and I'm just a little bit
18 confused, because in the joint statement of admissions by the parties and
19 matters which are not in dispute, concerning Dr. Simic - this is on page
20 12, paragraph 90 - we have the word "president" being used, vice-chairman
21 of the Municipal Assembly, president of the Crisis Staff, president of the
22 War Presidency, and so on. The only reference to speaker I can find is in
23 the last sentence, concerning being elected speaker of the Samac Municipal
24 Assembly and serving in that position until 1996. So I wonder whether you
25 could explain to us what is the significance of your repeated use of the
1 word "speaker" in the brief, in contradistinction to what's in the joint
3 MR. PANTELIC: Yes, Your Honour. I will do that gladly. Since we
4 are coming from the different legal systems, I must give certain
5 interpretation, although we made that in our closing brief. And actually,
6 contrary to the Western standards -- I'm speaking about Canada or United
7 States - where we have a position and function of mayor of the town, and
8 he is superior to the police and all other services in town. At that
9 time, in system of Bosnia-Herzegovina and elsewhere in former Yugoslavia,
10 there was no such function. It was introduced only recently, through the
11 High Representative for Bosnia a couple of years ago. So now in Bosnia we
12 have a speaker of municipal parliament, which is exactly the same function
13 as we know who speaker is in the Western parliamentary systems, and now we
14 have a mayor in Bosnia, appointed by the higher authorities, et cetera.
15 It is rather similar, Your Honour, I mean, term "mayor" with burgmeister
16 that you can find in Rwanda, namely in most recent case of Bagilishema,
17 who was acquitted for certain crimes, although I will come later to that.
18 So in Europe, in western Europe, we have the term "mayor" which
19 name is burgmeister in Germany, and that is exactly the function which is
20 similar to mayor. On the contrary -- sorry, Your Honour.
21 JUDGE WILLIAMS: But I wasn't referring to mayor. I'm referring
22 specifically to use of the word "president" in the agreement by both
23 parties, the Defence and the OTP, dated 27th April 2001. There's no
24 mention of mayor in paragraph 90. It's referring to Dr. Simic as
25 president of the Crisis Staff and president of the renamed War Presidency.
1 So that's what I would like you very briefly to address, the difference in
2 the terms "president" versus "speaker."
3 JUDGE MUMBA: In addition to --
4 MR. PANTELIC: Yes, Your Honour.
5 JUDGE MUMBA: -- That question, even the exhibits which are before
6 the Trial Chamber, accepted by Dr. Blagoje Simic as having been signed by
7 him, title him as president.
8 MR. PANTELIC: Yes, Your Honour. If we are reading -- if we are
9 reading the provisions of the statute, municipal statute, we could find
10 exactly what is the scope of activities of we can use this word just
11 hypothetically president of Municipal Assembly. The theological [sic]
12 approach is that actually the term "president" in Municipal Assembly
13 throughout the system of former Yugoslavia, including Bosnia, means
14 speaker. So in order to, to some extent, to better explain function of
15 Dr. Simic, I'm using term "speaker" because speaker is actually what,
16 according to the municipal statute and the other provisions in the law, is
17 the case. Let me remind you that --
18 JUDGE LINDHOLM: Perhaps I can help you, instead of using so many
19 words. Please answer this question. When you are talking speaker,
20 president, or whatever, did Mr. Simic in his different capacities have a
21 vote, in case the votes fall even, he had the decisive vote? Please
22 answer that question.
23 MR. PANTELIC: No, Your Honour.
24 JUDGE LINDHOLM: He didn't have a vote.
25 MR. PANTELIC: He has a vote but he wasn't able to get so-called
1 casting vote or decisive vote or golden-share vote, whatever you want. So
2 he was first among equals. He was assemblyman, he was elected assemblyman
3 among the 50 of assemblymen of Municipal Assembly and they voted him to be
4 speaker of that Municipal Assembly with the same power, I mean vote for
5 Dr. Simic and all others was the same. So.
6 JUDGE LINDHOLM: You know, in addition, when playing with these
7 words, in the Western systems, the speaker has no vote.
8 MR. PANTELIC: Okay, Your Honour. But I said that it's rather a
9 mixture between Western and Eastern systems. What counts is the role and
10 scope of chairman or speaker of the Municipal Assembly as stated in the
11 statute of the municipality. So we have to go to read his functions in
12 statute of municipality and then we shall see -- also we can -- we have to
13 make some references to Professor Nikolic's statement and then we shall
14 understand what was the role of Dr. Simic within the constitutional system
15 of former Yugoslavia, including Bosnia and Herzegovina. So for the -- my
16 understanding from the function that he performed and from the
17 words -- from the statute of the municipality, that actually he was
18 speaker, not mayor. Because let me remind you, Your Honours, that in
19 previous stage, Dr. Simic was charged with 7(3) Article responsibility,
20 but they dismissed the charge on basis of 7(3), specifically due to the
21 provisions of Bosnia-Herzegovina and Republika Srpska with regard to his
22 function. Because the perception in 1995, when initial indictment was
23 filed, was from the Western point of view that he was a mayor, which was
24 not the case. Thank you.
25 So when the municipal department of the Ministry of Defence of
1 Republika Srpska assigned him this position in accordance with the
2 applicable law - I'm speaking about his function, being speaker of the
3 Crisis Staff and member of the Crisis Staff - consequently, he found
4 himself in the position of the speaker of the Crisis Staff. In fact, on
5 18 and 19 April 1992, there was a - we received the evidence - there was a
6 gathering of duly elected municipal assemblymen, in order to find
7 appropriate solutions to face the extraordinary circumstances that were
8 confronting them. The Prosecution would have us believe that the Crisis
9 Staff was a joint criminal enterprise. It would have us believe that it
10 was formed for the purpose of ethnic cleansing. It would have us believe
11 that someone, somehow, it was an exclusive authority, above all other
12 authorities, where other institutions and organs, such as police, and even
13 the military, were subordinated to this Crisis Staff. They would have us
14 believe that everything that occurred in Bosanski Samac during the period
15 covered by the indictment was directed or planned or organised,
16 supervised, carried out, by the Crisis Staff and Dr. Simic himself.
17 The evidence simply does not bear this out. Even their own
18 witnesses cannot substantiate these claims. But before I go any further,
19 let us be clear about several matters.
20 The indictment does not claim that being a member of the SDS is a
21 crime. The indictment does not claim that organising a Crisis Staff is a
22 crime or that being a member of the Crisis Staff is a crime, or the
23 existence of a Crisis Staff is a crime. As I said earlier, the indictment
24 does not charge Dr. Simic under Article 7(3). And so if the police
25 department, as the Prosecution claims, was under the authority of the
1 Crisis Staff and was directly under the authority and control of
2 Dr. Simic, then surely the Prosecution would not have deleted the charge
3 under Article 7(3), as originally they had charged him in the first
4 indictment, as I mentioned earlier.
5 Furthermore, the indictment does not charge Dr. Simic of being a
6 member of joint criminal enterprise. The fact remains that he's not
7 charged with joint criminal enterprise in a manner and method and language
8 used by the Prosecution in other cases here in this Tribunal where
9 explicitly joint criminal enterprise is the heart and soul of the charge.
10 The Defence addressed that issue in its brief to some extent, and the
11 Defence doesn't want to give any particular expanded response to that,
12 because simply, the joint criminal enterprise was never charged in this
13 case. That's an intention, intentionally or unintentionally, I'm
14 not -- that's job of my learned friend, the Prosecution. But that's the
15 case, Your Honours.
16 So when we look at all the evidence that the Prosecution has put
17 forward, when we look at the lack of evidence which we would have expected
18 from the Prosecution to put forward, their failure to challenge certain
19 evidence, such as, for example, the handwriting expert, with respect to
20 the document concerning the isolation. I'm speaking about the Exhibit
21 P71. And even the Prosecution agrees that it cannot be proven beyond a
22 reasonable doubt that Dr. Simic signed this particular document. When we
23 look at all what has been brought before this Trial Chamber, we can only
24 reach one inevitable conclusion: Dr. Simic was not involved in
25 persecution. Dr. Simic was not involved in ethnic cleansing. Dr. Simic
1 was not involved in isolation or deportation, or starvation or inhumane
2 treatment, or any other charge listed in the indictment. He was not in
3 charge of or in control of or had authority over the police and the
4 military or the criminal warlords, such as the Prosecution star witness
5 Stevan Todorovic.
6 Dr. Simic was not involved in rounding up various members of the
7 community for the purpose of exchange. He was not involved establishing
8 and running detention centres. He was not involved in any form of
9 discrimination when he came to exercising his duties and his functions,
10 limited as they were, as the speaker of the Crisis Staff. And while it is
11 undisputed that certain members of that community did in fact engage in
12 certain criminal activities, Dr. Simic was not one of them, directly or
13 indirectly, and the evidence bears this out.
14 Madam President and Your Honours, I have divided my oral
15 presentation in three parts, the first part being the contextual aspect to
16 this case, which I have already touched upon, which is the
17 Bosnia-Herzegovina Posavina region and municipality of Bosanski Samac.
18 Then I will go to my next section when I will discuss briefly the law and
19 evidence. And finally, the last section will be on the Prosecution's main
20 witness, Stevan Todorovic. And then I will conclude with some summary
21 remarks, tying our entire case and summarising both my oral and written
23 In the light of the time constraints and given the Trial Chamber's
24 generous allotment for the presentation of the written submission in which
25 we believe we have dealt with all aspects of this case in a very concrete
1 manner, I will not go into all the facts, because they have been covered
2 with specificity in the written submission. But before I begin my first
3 part of my oral submission, Your Honours, I prepared for your convenience
4 an analysis of the Prosecution brief, and addresses the Prosecution
5 arguments. It's rather an outline sort of road map for -- that you can
6 use which I trust will be helpful and you can collate and synthesise my
7 written and oral submission along with the record in this case. So I
8 kindly ask the assistance of Mr. Usher, please. I have copies for the
9 Trial Chamber. I have one copy for the Prosecution and for the Court,
11 So Your Honours, you can see that actually the form is made on the
12 basis of the Prosecution brief, the titles too, and then in each of these
13 positions you can find at which paragraphs of Defence brief we covered
14 that particular issue, although our brief in totality should be viewed in
15 totality with regard to the case of the Prosecution. Thank you.
16 I'm now starting with the events in Bosnia-Herzegovina, Posavina
17 region and municipality of Bosanski Samac. And to some extent, with some
18 reservation that I embark on this segment of my argument, and that is
19 trying to understand the essence of this case, in the context of the
20 political realities as they existed and as they evolved prior to the
21 outbreak of the war.
22 When Dr. Simic responded to the indictment by voluntarily coming
23 here, as he believed was required of him to do so under the law, he did so
24 with the understanding that he would be facing an indictment based on the
25 facts and based on the principles of international criminal law, be they
1 customary or statutory. However, as we have seen throughout this trial,
2 the Prosecution has politicised these proceedings. They have done so by
3 trying to demonise and illegitimise the creation of Republika Srpska, its
4 citizens, who in the midst of the dissolution of the former Yugoslavia
5 were attempting to realise their right to self-determination, just as the
6 others in former Yugoslavia, such as Slovenes, Croats, Bosnian Muslims,
7 Bosnian Croats, and Macedonians. What the Prosecution has done in its
8 case, and we see this in a rather chilly manner through its brief, just as
9 they have done throughout the trial is to characterise Republika Srpska
10 and its institutions including Municipal Assemblies as a shadow
11 government, parallel government, and specifically in this case, as stated
12 in their brief, private institution of Dr. Simic. Let me give you just a
13 few examples of the language used in their brief.
14 They repeatedly describe official institutions of Republika Srpska
15 as rebellion by its nature. They used terminology such as Blagoje Simic's
16 Crisis Staff, Blagoje Simic's SDS-controlled Crisis Staff, SDS-dominated
17 Crisis Staff, Crisis Staff's detention centres, Crisis Staff's police,
18 Crisis Staff's chief of police, War Presidency's secretariat for National
19 Defence, et cetera, et cetera. That's the language that they are using.
20 It is obvious that the Prosecution is desperate and in a state of panic,
21 since they are not able to provide any sustainable evidence to prove their
22 case. Using sarcastic and, to some extent, derogatory terms, they tried
23 to create a foggy curtain behind which they hope to be persuasive.
24 Your Honours, at this stage, allow me to respectfully bring to
25 your attention some more significant issues that I believe are of the
1 importance for the defence case. With certain reserve, I would say that I
2 wish to invite all of you back to the days when the situation in Bosnia
3 was very fluid, very uncertain, and dangerously explosive. In particular,
4 I'm speaking of the fall of 1991, when in the night between 14th and 15th
5 October, Bosnian Croat and Bosnian Muslim MPs, violating constitutional
6 and democratic principles, outvoted Bosnian Serb MPs by adopting several
7 documents dealing with the crucial issues in terms of vital interest of
8 the constituent nation and the statehood. The Defence thoroughly dealt
9 with this topic throughout the trial proceedings and also in its brief.
10 For the sake of expediency, I will not go into any greater details, but I
11 would, however, like to point out that many learned scholars upheld the
12 Defence positions.
13 For example, one of the top UN officials, the eyewitness of the
14 events in Bosnia, learned professor Susan Woodward, wrote a book, "Balkan
15 Tragedy: Chaos and Dissolution after the Cold War." It is also worth
16 mentioning that Professors Steven Burg and Paul Shoup wrote a remarkable
17 book, "The War in Bosnia-Herzegovina: Ethnic Conflict and International
18 Intervention," which is highly recommended even for foreign policy
19 specialists and others interested in these events of Bosnia including
20 State Department of the United States.
21 And least but not last, there is a book, "Blueprints for a House
22 Divided: The Constitutional Logic of the Yugoslav Conflict," dealing with
23 the constitutional crisis in Bosnia and the author of which is
24 Professor Robert Hayden.
25 So in sum, the Defence position is that Bosnia-Herzegovina entered
1 into the process of dissolution on 15th of October, 1991. This process
2 lasted until the Dayton Peace Accords, reached in 1995. Throughout this
3 process of dissolution, a parallel process of formation of Bosnia and
4 Herzegovina was ongoing. Throughout the entire period between October
5 1991 and December 1995, three constituent nations of Bosnia-Herzegovina
6 formed their institutions, administrations, and entities. It is therefore
7 unacceptable claim of the Prosecution that Bosnian Serbs acted unlawfully
8 and contrary to the constitutional and legal framework. The Prosecution
9 tried to create a story that there was a central government of Bosnia and
10 Herzegovina. They tried to create a fiction that Bosnia and Herzegovina
11 was a state during the period covered by the indictment. They tried to
12 convince this Honourable Trial Chamber and the public that Bosnian Serbs
13 were rebellions.
14 Your Honours, at that particular time, Bosnia and Herzegovina was
15 not a state. Muslim-led presidency - I'm quoting word "presidency" - and
16 other institutions were illegitimate and did not act on behalf of all
17 three constituent nations of Bosnia and Herzegovina. Bosnian Croats
18 established their own entities and institutions, and only in 1994, under
19 the firm action of US state department, they reached so-called Washington
20 agreement, with Bosnian Muslims, and then they formed Federation of Bosnia
21 and Herzegovina, an entity which at present time is part of the state of
22 Bosnia and Herzegovina.
23 So from October 1991 until Dayton, Bosnian Serbs were in process
24 of formation of Republika Srpska, and both Muslim Croat Federation and
25 Republika Srpska, certain -- deferred certain competencies to the common
1 institutions of Bosnia-Herzegovina at these days, actually, after the
2 Dayton, in accordance with Dayton. We have to know that both entities
3 have their own armies, own police, own constitutions, presidents of
4 republic and federation, parliaments, et cetera. So what conclusions may
5 we draw from the Dayton Peace Accords? Because we have to look at the
6 totality of this process.
7 Number one, Dayton Accords recognised the legitimacy of Republika
8 Srpska. That's the first point. Number two: Dayton Accords recognised
9 the principle of protection of vital interest of constituent nation, and
10 principle of safeguards of national interest in multi-ethnic states.
11 Number three: The Dayton Accords clearly annul findings, political
12 findings of the so-called Badinter commission. I'm speaking in particular
13 with the opinion number 2 in para 2, where this commission found that
14 Bosnian Serbs in Bosnia will have a right of minority, not constituent
15 nation but minority, and that's why Dayton Peace Accord in accordance with
16 the principle of international public law and in accordance with the
17 principle pacta sum servanta is obligatory. It's a source of
18 international law and it's clearly -- the findings in Badinter commission
19 opinion 2, para 2, is clearly annulled by this source of international
21 The Dayton Accords recognise the principle of two-third majority
22 or supermajority if you like, enshrined in all civilised legal systems
23 throughout the world and that principle was violated during the referendum
24 of Bosnia-Herzegovina in February 1992. That principle was clearly
25 violated during the adoption of the memorandum of sovereignty and other
1 illegitimate acts by Bosnian Muslim and Bosnian Croat MPs from October
2 1991 and onwards. And from the position of the Defence, we think that
3 another turning point during the period covered by the indictment was the
4 Lisbon agreement which was reached in February 1992. Leaders of all three
5 constituent nations of Bosnia-Herzegovina called for a state composed of
6 national regions for all three peoples, all three constituent nations. It
7 was the Bosnian Muslim side - this is indisputable fact - that chose to
8 repudiate the agreement. That was another step to descent into the war.
9 And third and final step towards the conflict was politically motivated
10 process of recognition of a state not being a state by the USA and
11 European Union in April 1992. And then all Bosnia-Herzegovina descended
12 into war.
13 But let's go back to the municipal level of Bosanska Samac.
14 Dr. Simic tried to act in favour of reconciliation and peaceful solution.
15 When the Croatian community of Bosnian Posavina was formed in December
16 1991, and we have evidence in our case with that regard, it was more than
17 obvious that the Bosnian Serbs in Bosanski Samac alarm bell was activated,
18 since the municipality of Bosanski Samac was included in the political and
19 military objectives of Croats and Muslims in the region of Bosnian
21 And in the eve of the outbreak of hostilities throughout Posavina
22 region many Serbs were killed, many Serb women were raped, many Serb
23 political leaders were assassinated. Many Serb religious institutions
24 were destroyed. We heard the evidence to that extent in our proceedings.
25 It was before the 17th of April, 1992, in Posavina region.
1 As to the Bosanski Samac municipality, things were not better at
2 all. SDA and HDZ formed their illegal, secret armed formations. They
3 formed their military commands. They formed their secret crisis staffs.
4 Finally, they planned to forcibly take over the municipal institutions by
5 launching military attack in the period between 16 and 18 of April, 1992.
6 And we have clear evidence to that extent.
7 And only due to the fact that military intelligence of 17th
8 Tactical Group obtained reliable informations pertaining to imminent
9 attack of Croat and Muslim forces on municipality of Bosanski Samac, it
10 was possible to react by launching a defensive military operation in order
11 to prevent tragic consequences which already occurred elsewhere in Bosnia
12 Posavina region. Although we could predict with greater precision what
13 would have happened with Dr. Simic himself, his family, and other Bosnian
14 Serbs living in Samac municipality in the light of the Posavina -- Bosnian
15 Posavina events mentioned above, it is clear from the evidence that
16 Dr. Simic played no role in military operations in the night between 16
17 and 17 of April, 1992.
18 Your Honours, it is my deepest belief that we have to concentrate
19 our attention to the criminal law issues, and the issues of criminal
20 procedure. Although it's completely understandable that certain
21 contextual aspects of the case, including public international law issues,
22 constitutional law issues, and political issues should be discussed, it is
23 nevertheless improper what the Prosecution pleaded throughout these
24 proceedings. They tried to create a story based on wrongful premises.
25 Firstly, they disregarded the causes for the dissolution of Bosnia
1 and Herzegovina. Secondly, they misunderstood the principle of
2 self-determination of nations. And thirdly, they desperately tried to
3 politicise these criminal proceedings by labelling the SDS party as a
4 joint criminal enterprise. Fourthly, it is clear that they do not
5 understand constitutional law system in Bosnia and Herzegovina and
6 Republika Srpska, and the role and competencies of municipal authorities
7 within the legal system. And finally, they franticly tried to demonise
8 Dr. Simic, accusing him of being a Serb SDS leader and ultimately a war
9 criminal, simply because he was caught in the process of formation of
10 Republika Srpska. And he was caught in a legitimate defence of his family
11 and fellow citizens and the process of self-determination of his nation.
12 Your Honours, if these actions are crime, then Dr. Simic is
13 guilty, as millions of Serbs acted in the same way. Your Honours, it
14 should be absolutely clear that nobody can be exonerated of his individual
15 criminal responsibility if, in order to achieve the above-mentioned goals,
16 this process encompasses violation of international humanitarian law.
17 This is absolutely indisputable fact. But let me say clearly and loudly:
18 Dr. Simic did not violate provisions of international humanitarian law.
19 Your Honours, I believe it's time for a break, because now I'm
20 going to the contextual basis with the Samac events, so maybe it's a
21 proper time, because we're almost now time for a break. Thank you.
22 JUDGE MUMBA: Yes. We shall take our break now.
23 --- Recess taken at 10.29 a.m.
24 --- On resuming at 11.01 a.m.
25 JUDGE MUMBA: Yes, Mr. Pantelic. We continue.
1 Mr. Re.
2 MR. RE: Thank you, Your Honour. Before Mr. Pantelic resumes, I
3 reluctantly make or ask the Trial Chamber -- or make this point. I try
4 not to object during opponent's submissions out of courtesy. These are
5 legal proceedings. It's not a political forum. During Mr. Pantelic's
6 submissions before the break, on two occasions he accused the Prosecution
7 of politicising the proceedings, just before the break he accused us of
8 desperately trying to politicise the proceedings, in the course of his
10 The Counsel for the accused is entitled to make submissions on the
11 evidence and make submissions which are available from the evidence heard
12 at trial or make legal submissions based on the law or international legal
13 materials. He is not entitled, in the Prosecution's submissions, to make
14 those sorts of allegations in this legal forum in the closing stages of
15 the trial. Had there been a proper allegation of the Prosecution
16 politicising proceedings, it could have been brought by a motion at an
17 appropriate stage during the proceedings. The Prosecution asks
18 Mr. Pantelic to desist from those sorts of comments and to concentrate on
19 the legal issues and the submissions. He's entitled to criticise the
20 Prosecution brief, the evidence, and make appropriate submissions in
21 relation to those matters, but to go no further.
22 JUDGE MUMBA: Yes, Mr. Re. The Trial Chamber appreciates your
23 intervention, but I wish to say that I think it's the way we understand
24 these terms. It's different in different legal systems, and I'm sure that
25 Mr. Pantelic does not mean to be mean with these terms approximate by
1 describing the manner in which the Prosecution has tabled their case as
2 meaning that it -- they tended to make it into a political debate or a
3 political -- perhaps the Crisis Staff being a political institution or
4 anything like that. I'm sure it's a question of the way we deal with the
5 different terms, and I believe that Mr. Pantelic will, as his brief shows,
6 has commented or has made his submissions according to the way he
7 understands the evidence, and I don't think it's necessary for
8 Mr. Pantelic to respond or explain anything, but please to continue with
9 your submissions.
10 MR. PANTELIC: Thank you very much, Your Honour. That was exactly
11 the position of Defence. Maybe it's term of presentation, it's maybe a
12 word which was used. In any case, what we heard here during all the case
13 here, that the Prosecution tried to label Dr. Simic as a member of SDS and
14 therefore a member of the broader joint criminal enterprise simply because
15 he was a member, and simply because certain -- members of SDS on the
16 top-ranking position were indicted by the same office. So just in that
17 term, I would like to distance this category from the proceedings. And
18 I'm very -- I would like to -- I'm very grateful to you, Madam President.
19 That's exactly what is the basis expressed in our brief, and throughout
20 the oral submission. Thank you very much again.
21 And before I continue, Your Honour, just allow me to make a short
22 correction in page 24, line 22, instead of theological should be
23 teleological. A form of interpretation.
24 And then, I'm very grateful to my learned friend Mr. Moore. He
25 just during the break informed me that in terms of the question posed by
1 His Honour Judge Lindholm, just for the record, to say that speaker of the
2 House of Representatives in US has a vote, so speaker has a vote, but not
3 casting vote. Just for the record.
4 And Your Honours, that I have laid out the contextual basis at the
5 state level, let us go to Bosanski Samac and see what was happening there,
6 because this is a case about Bosanski Samac. This is a case about
7 Dr. Simic. This is a case not about, as I mentioned, the demonisation or
8 delegitimisation of the Republika Srpska or SDS or members of these
10 Serb municipality of Bosanski Samac was formed on 29 February
11 1992, pursuant to the decision of National Assembly of Republika Srpska,
12 and in accordance with the Republika Srpska constitution and all other
13 relevant legislation. That was the basis, legal basis. Serb municipality
14 of Bosanski Samac was formed by the will of duly elected assemblymen from
15 Bosanski Samac. Municipal Assembly operated in accordance with its
16 statute, the rules of procedure, and within Republika Srpska legislative
17 system. In its legitimate response to the imminent military attack by
18 Croat and Muslim forces on the municipality of Bosanski Samac, the civil
19 authorities formed the Crisis Staff. The role, function, and competencies
20 of the Crisis Staff were defined by relevant legislation and the Defence
21 has explained that in great detail in its brief.
22 Bosanski Samac municipality, on 17 of April, 1992, and throughout
23 the period covered by the indictment, was at the front line of severe
24 battle between warring sides. Dr. Simic, being a duly elected civil
25 servant, acted in his capacity as the speaker of the Crisis Staff. He did
1 not possess casting vote or prevailing vote, or golden-share vote. He was
2 first among equals. He acted in accordance with the principle primus
3 inter parus. On many occasions he was outvoted by the other members of
4 the Crisis Staff. His function was rather ceremonial or coordinative in
5 terms of process of voting or adopting municipal regulations.
6 What Dr. Simic did throughout the period covered by the
7 indictment, more precisely, in the period between 17th of April, 1992 and
8 the end of 1993? There is a clear evidence in this case that immediately
9 after the outbreak of hostilities in the municipality of Bosanski Samac on
10 17 of April, 1992, Dr. Simic participated with other municipal assemblymen
11 and officials in order to prevent humanitarian catastrophe of civilian
12 population in Bosanski Samac. Due to the heavy shelling, lack of water
13 supply, electricity, and general chaos caused by the armed conflict and
14 violence, Dr. Simic did his utmost to provide food, milk, and to establish
15 the state of public utilities at the acceptable level under the
16 circumstances. He acted spontaneously. He acted in accordance with the
17 Hippocratic oath and in accordance with his duty as a municipal civil
18 servant, and he acted in a non-discriminatory fashion, where little
19 resources were made available to all, irrespective of their ethnic
20 background or their religious beliefs.
21 The municipal Crisis Staff started officially operating on 19 of
22 April, 1992. First adopted decision was the notification on extraordinary
23 circumstances and introduction of a state of emergency. Nothing in this
24 particular decision was discriminatory by its nature, and that is how the
25 Bosanski Samac municipal authorities started their struggle for well-being
1 of all citizens of the municipality, regardless of their ethnic
2 background. What happened in the months that followed? Faced with the
3 disastrous conditions caused by permanent shelling by enemy forces, faced
4 with destroyed buildings, homes, houses, faced with destroyed building of
5 medical centre, with bombed waterworks building, with lack of medicines,
6 shortage of food, and other fundamental, basic needs, Dr. Simic and other
7 municipal authorities worked on adoption of regulations with the aim to
8 help everyone, regardless of their ethnic background.
9 The Defence presented hundreds of exhibits and thousands of pages
10 of witness testimonies regarding the scope and efforts of municipal
11 authorities in Samac. Let me focus briefly on the Crisis Staff.
12 You have heard the testimony, you have seen the legislation which
13 outlines of legal competencies of the Crisis Staff, as well as the
14 Municipal Assembly. You have also heard the testimonies of the witnesses
15 who were able to shed light on the lack of authority, lack of control, the
16 lack of effective power that the Crisis Staff had in general, and
17 Dr. Simic had specifically. What did civilian municipal authorities have
18 the power over? What were their competencies? Simply, they were
19 empowered by the constitution, relevant laws, and the municipal statute of
20 the following, inter alia:
21 Number 1, economic development on the municipal level; urban
22 development and communal housing, and communal housing; public and
23 communal infrastructure; management of the state-owned apartments;
24 communal activities of public interest; rental charges on the basis of
25 rental policies at the republican level; adoption of municipal budget, and
1 other areas, education, economy, and health care, being regulated by the
2 republican level. We heard very extensive testimony and we have in our
3 evidence these areas.
4 Conversely, what they were not empowered, either by the law or by
5 any other means, de jure or de facto, to impose their will or their way
6 over the police - and specifically, I'm speaking now of the Prosecution's
7 main witness, Mr. Todorovic - or the military. And I make reference to
8 General Wilmot's report, because he outlined this issue in the chain of
9 command of police of Republika Srpska, in chain of command of army of
10 Republika Srpska. Of course, we shall disregard the other part of his
11 testimony and his report related to events in Prijedor. We very well know
12 why we introduced this expert report. So the relevant portions should be
13 legislation relevant to police force in Republika Srpska and military in
14 Republika Srpska, and we can find citation of certain laws which was at
15 that time in force in General Wilmot's report.
16 The Crisis Staff was not an exclusive authority above all other
17 authorities. And Dr. Simic was not the omnipotent czar or even
18 burgmeister or mayor, as the Prosecution has tendentiously but mistakenly
19 been ascertaining throughout these proceedings. And while I do not want
20 to get ahead of myself into discussing the role of Mr. Todorovic, whom the
21 Prosecution has told us repeatedly to view with caution, for even they
22 acknowledge in the tribunal of their own hearts and minds that he is less
23 than honest, less than trustworthy, less than reliable raconteur of the
24 truth. Even Mr. Todorovic during these few, fleeting moments of honesty
25 and clarity admitted that he was a law unto himself, that he did as he
1 willed. And, of course, the evidence bears out that he was running his
2 own legal fiefdom in the toughest way, which only he was so heartfully
3 able to do. Interestingly, we have available to us some jurisprudence
4 from our sister Tribunal, the International Tribunal for Rwanda, which is
5 quite relevant and pertinent to this case.
6 I'm referring to the case Bagilishema, though it has been covered
7 with some specificity in my brief, paragraphs 370 to 385. I invite your
8 close scrutiny and attention as we reason through the situation in the
9 case and the situation that we have before us.
10 For the analogy or the comparison, it is remarkably significant
11 and the Court's reasoning in Bagilishema case help us -- I will use some
12 words, since I must skipper and pilot, so maybe to explain in some
13 illustrative way. So the reasoning in Bagilishema case help us navigate
14 through the fog of the Prosecution's argument. Because what I'm asking
15 here, Madam President and Your Honours, is it to stay the course, to focus
16 on what is the issue, to focus on what is the fact and belay straight
17 through the Prosecution fanciful arguments.
18 In Bagilishema, you have a burgmeister which is a mayor, which is
19 equivalent to a mayor, and in that, unlike the situation in Bosanski
20 Samac, the burgmeister who was the executive authority, had effective
21 control and authority over the police. That authority was well recognised
22 by the virtue of the existing legal framework, unlike in Bosanski Samac,
23 where, as the evidence has shown, the police was under the authority of
24 the Ministry of Interior of Republika Srpska.
25 What is remarkable is that in that case, Bagilishema case, where,
1 by law, it's burgmeister sits on the top of the police, gendarmerie,
2 parapolice formations, and axiomatically enjoys command responsibility.
3 So the Trial Chamber in Bagilishema acquitted Mr. Bagilishema and later
4 the Appeals Chamber sitting here in The Hague confirmed the acquittal,
5 having found that under the circumstances, that in spite of his legal
6 authority, Bagilishema's legal authority, he did not have the means to
7 detain or prevent activities that were being carried out in his commune.
8 The evidence in this case, as I have indicated, shows that
9 Dr. Simic exercised no authority over military police or other individuals
10 within their chain of command. That Dr. Simic had no legal authority;
11 that there were no means to contain those who were committing crimes; and
12 more importantly, that Dr. Simic did what little he could do, which was to
13 notify those who were in a command responsibility position to do
14 something, to react, to contain, to stop, to remove, to prevent and to
15 punish those who were committing crimes. Needless to draw your attention,
16 Your Honours, to the issue of command responsibility, to the case-law, to
17 the role of military commander within its zone of responsibility at this
18 stage, and just a few words on the submission of Mr. Re during this
19 morning, with regard to the - although we addressed that issue in our
20 brief - with regard to the testimony of Mr. Paleksic, who was a member of
22 Let me clearly spell it out. That was internal affairs commission
23 or department, like we know in Western systems of police, to investigate
24 police misconduct. And Mr. Paleksic clearly testified that in this
25 particular commission, the other members were in charge for some other
1 area of investigation, including the certain acts of Mr. Todorovic. So
2 it's an internal affairs commission of the republican Ministry of the
3 Interior of Republika Srpska. It was not some kind of informal commission
4 where certain people are getting around. But the bottom line is that
5 Dr. Simic was neither related to the army nor to the police. That's the
6 bottom line. That's the core of our case.
7 And finally, they admitted that by dismissing the count or charge
8 7(3), in earlier period, against Dr. Simic.
9 Now, Your Honour, I will turn to the second part of my submission,
10 the law and the evidence. First of all, the Prosecution did not plead its
11 case with specific details in accordance with the principle that the
12 accused right to know what is the case against him. I would now turn to
13 address the issue of persecution, and then I will address the issue of
14 catch-all charge of the concept of joint criminal enterprise; and finally,
15 the issue of charges specified in the indictment.
16 In fact, Your Honour, let me start with the concept of joint
17 criminal enterprise. Now, in our written submission, we discussed in
18 greater detail the applicable law in this case as it relates to fifth and
19 final indictment and the arguments made by the Prosecution in this case.
20 In its brief, however, the Prosecution invokes an allegation which is not
21 contained in the indictment. I'm referring specifically to their usage of
22 the allegation of joint criminal enterprise. In none of the five
23 indictments had such term even been introduced. Surely this was not
24 accidental. Surely this was not an oversight. Surely this was not
1 How can I speak with such assurance? No, Your Honours, I did not
2 bug the Office of the Prosecutor to listen to their discussion in their
3 sanctuary. No, I am not clairvoyant, and of course I was not a fly in the
4 wall as the Prosecution sat around drafting and redrafting, conferring
5 with their appellate lawyers as they formulated indictment after
6 indictment after indictment, after indictment, after indictment, until
7 they thought they had it right. Five amended indictments. Where they are
8 with joint criminal enterprise? The Prosecution, in drafting its
9 indictments, clearly, plainly, and unequivocally state, front and centre,
10 that Prosecutors in this case, as we all know, do not have the authority
11 to simply sit and draft the indictment and proceed without supervision and
12 control. We all know that in fact these Prosecutors are supervised; in
13 other words, they are subordinated to the more experienced Prosecutors,
14 more seasoned Prosecutors, Prosecutors that have effective control and
15 authority over them.
16 And in this particular case, Your Honours, these Prosecutors, or
17 should I say assistant Prosecutors or deputy Prosecutors, are supervised
18 by none other than Mr. Peter McCloskey, a senior lawyer with the Office of
19 the Prosecutor who of course in his faction, let us say, his common
20 responsibility, oversaw the drafting of these indictments and who is a
21 veteran of the usage of the concept joint criminal enterprise, this
22 umbrella concept, this all embracing concept of joint criminal enterprise.
23 Finally, needless to mention, also Madam Carla Del Ponte,
24 well-known expert in pleading the concept of joint criminal enterprise.
25 And we address this particular issue, analysing the work of the Office of
1 the Prosecutor in our brief, listing the list of indictments where they
2 use concept of joint criminal enterprise, plainly and blatantly.
3 It is obvious that the concept of joint criminal enterprise is the
4 spearhead and the heart of the work of the Office of the Prosecutor of
5 this Tribunal, at least in last four years. Yesterday, Mr. Re made a
6 reference to the recent Appeals Chamber decision in Ojdanic case regarding
7 the concept of joint criminal enterprise. Well, Mr. Re was wrong when he
8 assumed that Dr. Simic's Defence was unaware of that decision. Our team
9 worked very hardly, Mr. Re, and I can assure you that we worked diligently
10 and profoundly and that we know very well what is the essence of this
11 particular decision. And I can also assure Mr. Re that the Defence is of
12 the opinion that it was not necessary, by the Defence to address this
13 issue of joint criminal enterprise, due to the very simple reason: The
14 concept of joint criminal enterprise was not pleaded in the indictment,
15 and therefore it was useless to waste a limited size of our brief.
16 However, reading Judge Hunt's separate opinion, since you raised
17 that issue yesterday, it is clear that the expression "acting in concert
18 together" was never mentioned. Perhaps Mr. Re was in hurry and was not
19 even able to read properly the Honourable Judge Hunt's opinion, because in
20 that opinion, there is no word of acting in concert together. Contrary to
21 his submission, Honourable Judge Hunt made submission regarding the
22 interchangeable usage of words "common purpose" and "joint criminal
23 enterprise," which is rather different than the novel that we heard
24 yesterday from Mr. Re.
25 And yesterday again Mr. Re tried to explain the term "common
1 purpose," which, according to his word, had shifted over the years. And
2 then he stated that the process of shifting had culminated in the appeals
3 decision in case of Ojdanic on 21st of May this year. And in his response
4 to His Honour Judge Lindholm's question, this is at page 21 and 22 of
5 yesterday's transcript, Mr. Re was unable to make a reference to Tadic
6 appeals decision, which was rendered on 15 of July, 1999. Mr. Re failed
7 to mention that in the past four years his office had extensively been
8 using the concept of joint criminal enterprise, four years, Your Honour.
9 I shall not go into great detail, due to the time constraints. If
10 he wishes, Mr. Re could also read two decisions dealing with joint
11 criminal enterprise in the case of Brdjanin and Talic, which was rendered
12 by the Honourable Judges Hunt, Mumba, and Liu. And finally, in response
13 to Her Honour Judge Williams's question, page 27 of yesterday's
14 transcript, Mr. Re again introduced a novel in the Prosecution's
15 submission by saying that, I quote: "I can't speak for those who drafted
16 that aspect of indictment many years ago. All I can say is that the
17 evidence is the same. And in the Prosecution's submission, it does not
18 really matter." And then he concluded, Mr. Re concluded: "I am sorry,
19 Your Honour Judge Williams. I just can't answer your question as to why
20 it is pleaded that way."
21 That was the word of my friend Mr. Re yesterday. These words
22 clearly show that even the Prosecution does not know what they want to
23 plead. So how the Defence may know what is the case to answer? It is
24 also obvious that these Prosecutors in Samac case act in accordance with
25 the proverb "la loi, c'est moi," since they do not have any relationship
1 with their predecessors in this case, namely, Ms. Paterson and the other
2 members of the -- at that time, because it's a quite longish case.
3 In the light of the fact that these gentlemen have worked in
4 concert together since April 2001, it is defies belief that even today
5 Mr. Re does not know what the Prosecution case is about. The Defence, in
6 its paragraph 659 of its brief provided an extensive list of the
7 indictments filed by the Office of the Prosecutor where the concept of
8 joint criminal enterprise is clearly and loudly pleaded, yet this
9 indictment, this fifth indictment, which is the manifestation of four
10 previous indictments, does not contain the common purpose concept.
11 This clearly could not be an oversight, no more so than it could
12 have been an oversight than Bosanski Samac municipality was struck out
13 from the crown case of the Office of the Prosecutor, and that is the case
14 Krajisnik and Plavsic. There is no Bosanski Samac municipality in Plavsic
15 and Krajisnik case.
16 And in addition, Your Honours, two co-defendants in this case,
17 namely, Mr. Milan Simic and Mr. Stevan Todorovic, reached the agreement
18 with the Prosecution and consequently plea bargain agreements were signed.
19 Your Honour, it is a well-known fact that in these agreements, there is no
20 single letter with regard to the concept of joint criminal enterprise.
21 What conclusions we may draw from the above-mentioned facts?
22 Number one: The Prosecution decided not to include Bosanski Samac
23 municipality in the Krajisnik and Plavsic case due to the simple and
24 obvious fact, there is no relationship between the top political
25 leadership of Republika Srpska and municipal civilian authorities in
1 Bosanski Samac with regard to the alleged common purpose.
2 Number 2: The Prosecution failed to plead with sufficient
3 precision the concept of joint criminal enterprise in this case, and
4 therefore it was not included in plea bargain agreement of the former
5 co-defendants Mr. Milan Simic and Stevan Todorovic in this case.
6 And number 3: It is perfectly clear that the policy of the Office
7 of the Prosecutor in relation to Bosanski Samac case does not support the
8 attempt of these gentlemen to introduce, out of the blue, on a last-minute
9 basis, the concept of joint criminal enterprise in this particular case.
10 The superior commanders of these associate Prosecutors
11 consciously, carefully, and after considerable and repeated deliberation,
12 and I say this because, after all, we do have five indictments,
13 specifically refrained not to include this all-encompassing charge of
14 joint criminal enterprise, which seems to be the flavour of the day for
15 the Prosecution in charging the accused that come before this Tribunal.
16 The Prosecution now, after the close of the evidence, and after Dr. Simic
17 has exhausted his possibilities for presenting his defence, now,
18 yesterday, now they raise the concept of joint criminal enterprise. It is
19 almost Kafkaesque and by that I mean that Dr. Simic has been deprived of
20 his fair trial rights guaranteed under the Statute and in particular of
21 knowing what he is supposed to defend himself against. The Prosecution
22 has an obligation to draft an indictment with a certain degree of
23 specificity that would allow any accused, number one, to know exactly what
24 he has been charged of; number two, what the Prosecution will be required
25 to prove beyond a reasonable doubt; and number three, what he will need to
1 defend against.
2 In this case, the Prosecution argues that Dr. Simic was involved
3 in a joint criminal enterprise. If we are to believe the Prosecution, if
4 we are to accept their argument, if we are to permit them to advance this
5 theory at this stage, we would have to accept and conclude that there was
6 a massive conspiracy that started with the creation of Republika Srpska,
7 in pursuit of the aspiration for self-determination by the Bosnian Serb,
8 which in fact was a natural and conceivable consequence under the
9 circumstances, particularly when those exact sentiments were shared by the
10 Bosnian Croats and Bosnian Muslims.
11 First, this Trial Chamber should disallow any argument made by the
12 Prosecution, be it in written submission or the oral submission, with
13 respect to the concept of joint criminal enterprise. It was not pleaded,
14 and therefore, it should not be argued. The crux of the Prosecution
15 argument, if I am to understand what exactly they were attempting to
16 convey, is that, in a very surreptitious manner, they now wish it allege
17 and argue that they have proved that the Crisis Staff itself, as an
18 institution, was none other than a joint criminal enterprise which was a
19 part of a larger joint criminal enterprise and that Dr. Simic was the
20 leader, at least in Bosanski Samac, of this joint criminal enterprise, and
21 as such, should be held responsible for anything and everything that might
22 have occurred in Bosanski Samac during the period of the indictment.
23 Nowhere in the indictment does it state that the Crisis Staff was
24 a joint criminal enterprise. Nowhere in the indictment does it state that
25 Dr. Simic was a part of the joint criminal enterprise. Nowhere in the
1 indictment does the phrase or the concept or the notion of joint criminal
2 enterprise appear, yet now, at this stage of proceedings, after the
3 evidence has been closed, the Prosecution wishes to argue for something
4 that they never alleged, and, as I have noted earlier, it is not by
5 coincidence that it was never alleged, and I submit that not being able to
6 come through the front door, now they are trying to sneak in, not through
7 the back but through the basement window.
8 Since the Prosecution has failed to properly plead the concept of
9 joint criminal enterprise, this Honourable Trial Chamber should reject its
10 submission with that regard.
11 JUDGE WILLIAMS: Excuse me, Mr. Pantelic.
12 MR. PANTELIC: Yes, Your Honour.
13 JUDGE WILLIAMS: What, in your submission, do the words "acting in
14 concert together" mean?, acting in concert together, the three accused
15 persons, and with other Serb civilian and military officials? I think
16 that's --
17 MR. PANTELIC: It means nothing for me.
18 JUDGE WILLIAMS: We need to know what in your submission, how we
19 are to interpret.
20 MR. PANTELIC: Yes, yes --
21 JUDGE WILLIAMS: That phrase.
22 MR. PANTELIC: Frankly, Your Honour, it means nothing to me,
23 because the wording of the indictment with that regard is absolutely
24 vague, imprecise, and I'll quote, count number 1, paragraph 11 of the
25 indictment: "Acting in concert together, and with other Serb civilian and
1 military officials." This vagueness and imprecision in these words brings
2 me to the conclusion that this word means nothing to me. And certainly,
3 these words means no joint criminal enterprise, no common purpose, no
4 common concept. Because we all know, within the case-law of this
5 Tribunal, what these particular concepts are.
6 And certainly, Your Honour, in five amended indictments, we didn't
7 hear that. But this is a legal argument. That's my position.
8 May I continue, Your Honour?
9 JUDGE WILLIAMS: Yes. Thank you for elaborating on that.
10 MR. PANTELIC: Thank you. You're welcome.
11 In terms of persecution, I would like now to move on to the charge
12 of persecution and briefly discuss the matter. I will not go into the
13 technical/legal aspects given in our written submission we have addressed
14 that. But I would like to focus the Trial Chamber to the facts as they
15 have come before this Trial Chamber, for this these acts are considered in
16 their specific scope and context the inevitable truth that emerges is that
17 Dr. Simic was not involved in any acts that would fall under this umbrella
18 charge of persecution that is charged in the indictment, catch-all
19 charge. I have already discussed during my remarks on the historical
20 context of the events preceding to the establishment of the Crisis Staff,
21 and I have outlined Dr. Simic's role in the community of him being a duly
22 elected official prior to the outbreak of the war, the lawful
23 establishment of the Crisis Staff, and the limited but legitimate and
24 lawful competencies of the Crisis Staff and of Dr. Simic in particular.
25 And therefore, in my respectful submission, that Dr. Simic did not plan,
1 instigate, order, commit, or otherwise aided and abetted a forcible
2 takeover of Bosanski Samac.
3 Dr. Simic and the evidence is very clear, was not responsible
4 under any of the modalities as I have indicated in our brief and which are
5 pleaded in the catch-all form in the indictment, namely, in arresting,
6 detaining, confining, or deploying non-Serbs in Bosanski Samac, nor he is
7 responsible for any cruel or inhumane treatment of any non-Serbs in
8 Bosanski Samac. He did not forcibly transfer or expel anyone from
9 Bosanski Samac. In short, at no time did he directly or indirectly do any
10 of the enumerated acts outlined in count 1 of the indictment. The
11 evidence demonstrates, for instance, when it comes to the deportation and
12 expulsion or forcible transfer, that many people left Bosanski Samac, not
13 only non-Serbs, but Serbs as well, and humanitarian problem was in place
14 to allow those who wished to leave, could do so, and all those who wished
15 to stay could stay. That's the case of Bosanski Samac.
16 We heard from 30-some witnesses who indicated that while they
17 wanted to stay, they felt compelled to leave because they were insecure of
18 their safety and their future in Bosanski Samac. Obviously, Your Honours,
19 you must all take into consideration the conditions at that time, which
20 for everyone in that community were simply uncertain and uncomfortable.
21 There was a war, daily shelling, municipality on the first metre of front
22 line on the bank of Sava River. Enemy forces shelled Bosanski Samac every
23 day. The shell is not smart shell like we have now in certain military
24 actions. In 1992, shell was ordinary and the shell did not choose who to
25 kill or to wound or what to destroy. That was the life in Samac at that
2 However, I submit that in weighing this evidence, you must also
3 counterbalance it with the testimonies of 30-some witnesses presented by
4 the Defence. When the non-Serbs got to the line to cross over, in
5 accordance with their wish, they chose on their own to remain. They
6 choose to remain voluntarily, not by threat. They were certainly not
7 pushed over line, since they were right there, which is what you would
8 expect if the intent was to ethnically cleanse, get rid of, eradicate
9 their presence, but instead they were welcomed back into the community,
10 where contrary to the fears expressed by the witnesses for the
11 Prosecution, these witnesses, Defence witnesses, non-Serb, they were able
12 to stay in their homes, life, within their communities and safely remain
13 members of the Bosanski Samac community, which is of course a testament
14 that there was no plan to ethnically cleanse, and also we must keep in
15 mind the evidence that were heard that Serbs were leaving also.
16 Is this also part of the Prosecution argument of persecution?
17 Were the Serbs, municipal authorities, or Dr. Simic attempting to
18 ethnically cleanse Bosanski Samac of Serbs as well? And so I submit that
19 when you look at all of the evidence, when you look at the conditions in
20 Bosanski Samac at the time, when you look at the movement of the peoples
21 to and from Bosanski Samac, when you look at the voluntariness of those
22 who wished to leave and those who wished to stay, when you look at what
23 happened to those who stayed, the only inevitable conclusion that can be
24 drawn is that the Prosecution has failed to meet its burden of proof of
25 proving beyond a reasonable doubt that Dr. Simic was involved in any of
1 the alleged activities contained in the indictment.
2 The Prosecution has specifically failed in establishing the
3 requisite but indispensable element of mens rea, that is, the
4 discriminatory nature of the acts. What do we know in this particular
5 case? We know that in carrying out his functions that were prescribed to
6 him by law in his capacity as a speaker of the Crisis Staff, he carried
7 out his duties in a non-discriminatory fashion, as I noted earlier, with
8 regard to his specific competencies, he provided food, medical assistance,
9 aid, to all citizens, irrespective of their ethnic background or religious
11 Was there discrimination on the ground in Bosanski Samac at that
12 time? Were certain members of the community targeted, abused? The answer
13 is yes. Was Dr. Simic responsible for that activity? No. Although the
14 Defence in its brief has submitted its view with regarding the charges and
15 the objective elements of the crimes charged in article 5(H) and 5(D), and
16 Article 2 of the Statute, please allow me to address very briefly the
17 following issues.
18 Number 1: The Prosecution failed to plead the international armed
19 conflict issue in its indictment. There is no word of the nature of the
20 conflict in its indictment. Knowing that the nature of the conflict is a
21 requisite objective element for application of Article 2 of the Statute,
22 the conclusion is that this count should be dismissed. For this reason
23 and for the reason of the submission the Defence made in its brief and
24 throughout the proceedings.
25 Number 2: The Prosecution failed to plead the specific armed
1 conflict between Croatia and FR Yugoslavia, and another novel of Mr. Re
2 yesterday, he informed us here, after all these years of
3 proceedings - it's page 51 and 52 - that in fact Prosecution, that's for
4 the first time since 1995, it's almost ten years, that the Prosecution
5 actually, speaking about the international conflict between state of
6 Croatia and Federal Republic of Yugoslavia. No Bosnia at all. We agree
7 with Mr. Re, because, number 1, we think that Bosnia at that time was
8 never a state in terms of international law, only after Dayton; and number
9 2, that the legitimate -- a legitimate request of Bosnian Serbs made
10 through the plebiscite in October 1991 showed that they were -- actually
11 exercised their right for self-determination and wanted to be a part of
12 the other state subject.
13 Only yesterday we heard another novel that the two states were
14 fighting in the municipality of Samac, as I stated, Croatia and Federal
15 Republic of Yugoslavia. The Defence is confused, since Mr. Re did not
16 mention the other aspects of his case, and I submit that maybe the reason
17 is that -- the reasons provided by the Defence were so convincible, so
18 that actually he agrees that Bosnia-Herzegovina was not at that time a
19 state. Although Mr. Re is not obliged to read the Defence brief, I'm
20 referring to paragraphs 392 to 430. He should be aware of the findings in
21 paragraph 77 of Tadic decision on the Defence motion on jurisdiction. He
22 should also be aware of the fact that the case-law of this Tribunal
23 directs that each case should be viewed separately, which means that the
24 issue of the existence of international armed conflict in Samac case
25 should be decided based on the evidence of this particular case, and the
1 burden of proof is on the Prosecution.
2 Also the Prosecution should be aware of the ruling --
3 JUDGE WILLIAMS: Excuse me, Mr. Pantelic.
4 MR. PANTELIC: Yes, sorry.
5 JUDGE WILLIAMS: Just before you move on, again I'd like to hear a
6 submission or two on interpreting page 3 of the fifth amended indictment,
7 entitled "general legal allegations." I'm particularly interested in
8 paragraph number 6 and paragraph number 7, and with respect to paragraph
9 number 6, at all times relevant to this indictment, a state of armed
10 conflict and partial occupation existed in the Republic of Bosnia and
11 Herzegovina." I know it says a state of armed conflict. It doesn't say
12 international or internal. But it does say "and partial occupation." So
13 I'd be interested in hearing your interpretation of armed conflict and
14 partial occupation, what they mean, and then tie it in with number 7,
15 which says: "All of the persons described in the indictment as victims
16 were protected by the Geneva Conventions of 1949." If you would. Thank
18 MR. PANTELIC: Certainly, Your Honour.
19 Since the state of Bosnia and Herzegovina was in process of
20 dissolution, state of armed conflict existed, and the partial occupation
21 existed in the Republic of Bosnia-Herzegovina because territory of
22 Bosnia-Herzegovina was occupied by at least three entities: Muslim-led
23 government, so-called central government, because we heard, Your Honours,
24 from the Prosecution witness Mr. Tihic, Sulejman Tihic. Now he's a head
25 of state. He's head of state of Bosnia. Throughout 1992 and 1993, the
1 Muslim-led government controlled even less than 20 and 30 per cent of
2 whole territory. The other entity was Bosnian Croats. They controlled 30
3 to 40. And the third was Bosnian Serb side, also controlling, depending
4 on the time, between 40 and 60 per cent of the territory. And finally by
5 Dayton Peace Accord they were allowed to have 49 per cent.
6 In my respectful submission the state of armed conflict was in
7 territory of Bosnia-Herzegovina and that was internal armed conflict. And
8 yes, it was a partial occupation by three warring sides in Bosnia. In
9 order to follow the principles what must be pleaded in indictment, we have
10 also clearly to say: When you want to use Article 2, dear gentlemen, you
11 have to exactly plead that it was the nature of conflict, because this is
12 a requisite objective element of the Article 2.
13 And yes, Your Honour, in response to your second question, yes, in
14 paragraph 7, at all times relevant to the indictment, the -- all persons
15 were protected by Geneva Conventions of 1949. Yes. Not only Geneva
16 Conventions. I may say in broader terms the concept of international
17 humanitarian law. We do not have to stick specifically to certain
18 articles. This is the rule of the game. This is the role of the
19 Prosecution, to plead exact article. But from my respectful submission,
20 Your Honour, I think that the notion of international humanitarian law
21 should be viewed in the broader context, including the protocols of Geneva
22 Conventions and many, many others, other sources.
23 So in this particular case, yes, they were protected by Geneva
24 Conventions, but it was not a case that Article 2 of the Geneva
25 Conventions can be applied, as pleaded by the Prosecution. Because in
1 order to do so, they have to prove, first of all, to plead with certain
2 certainty in the indictment this fact, and then to prove the exhibits.
3 They failed to do so, Your Honours. As I said, even one of their key
4 witnesses, head of the state, Mr. Tihic, a diplomat, jurist, expert in
5 law, he stated that actually Muslim-led central government was not in
6 control of more than 20 or 30 per cent of the territory, which is
7 absolutely a well-known fact.
8 JUDGE WILLIAMS: Just one follow-up. So if I hear you correctly,
9 and I think I have, partial occupation, in your submission, was just
10 between the three ethnic or national communities in Bosnia-Herzegovina.
11 MR. PANTELIC: Yes, Your Honour.
12 JUDGE WILLIAMS: In your submission, there was no occupation by
13 persons or forces from outside of the territory of Bosnia and Herzegovina.
14 MR. PANTELIC: That is correct, Your Honour. Specifically, if we
15 are speaking according to the principles of the case-law within this
16 Tribunal, we are specifically speaking about Bosanski Samac municipality,
17 that territory. I'm not entering into the area of the other -- into the
18 nature of conflict in the other areas of Bosnia-Herzegovina, but the
19 position of Defence is that in Bosanski Samac municipality, there was not
20 an intervention or, so to say, occupation of the territory.
21 JUDGE WILLIAMS: And last question on the same note: We've heard
22 a lot, of course, about the Specials, volunteers, paramilitaries, whatever
23 one wants to call them, coming into the municipality of Bosanski Samac.
24 Could their presence be viewed as partial occupation and hence
25 internationalising the conflict?
1 MR. PANTELIC: No, Your Honour, that would be really, from my
2 respectful submission, that would be really very hard to conclude, because
3 we heard the evidence that this group of 15 or 20 volunteers or, call them
4 whatever anyone like, was a part of the larger unit, firstly, 17th
5 Tactical Group, of 7.000 soldiers, and then of 2nd Posavina Brigade, which
6 is maybe four or five thousand soldiers, whereas they were members of
7 special battalion, consisting, Your Honours - you know that very well from
8 the evidence - consisting of around 400 or 500 local villagemen, local
9 young boys living in the area. So if one wants to conclude that 15 or 20
10 persons coming on their voluntary basis like in Spanish civil war or
11 maybe, you know, in war in Afghanistan or now in Iraq, which is absolutely
12 other issue, if these 15 or 20 among the thousands of local soldiers,
13 local young boys and fathers and grandfathers and brothers, fighting for
14 their houses, for their homes, if someone will, from this fact, because
15 they are coming -- we even don't have evidence from where they came. Many
16 -- a few of them, but we don't know. Maybe they were born in Bosnia.
17 What is the reason, et cetera. We don't have evidence, Your Honour, in
18 our particular case, whether they were under certain control of someone,
19 superior, on behalf they acted. Because as far as we know in this case,
20 they were members of the local units, where majority was local population.
21 So the attempt to magnify this case by the Prosecution, Your
22 Honour, inevitably draws us to very uncertain legal area. This is my
23 submission. Thank you.
24 JUDGE WILLIAMS: Thank you.
25 MR. PANTELIC: So as I said, also going back to the issue
1 expressed in our brief with regard to this objective element of Article 2,
2 the Prosecution should be aware of the ruling in this particular case of
3 4th of April, 2003, where this Honourable Trial Chamber stated that it
4 was, I quote, "inaccurate that the Prosecution had introduced three expert
5 witness testimonies dealing with the nature of the conflict through Rule
6 92 bis." At this point, the Defence would like to emphasise that in spite
7 of its objection, the pre-trial Chamber ruled in favour of Prosecution
8 motion. Because during pre-trial phase, we, objecting to the -- for the
9 way that Prosecution will make introduction of these 92 bis statements,
10 but our motion was rejected. And that was the reason why the Defence had
11 tried to introduce its own military expert report, in terms of the concept
12 of nature of the conflict, and certain relations between army of Republika
13 Srpska, JNA, and some other units in the area, simply in order to
14 challenge the Prosecution's submission regarding the nature of the
15 conflict, being one of the elements for the application of Article 2 of
16 the Statute.
17 And yesterday Mr. Re invited this Trial Chamber to take judicial
18 notice as to the nature of the armed conflict, page 53. Again, Defence
19 would like to remind Mr. Re that the Prosecution failed in this attempt
20 during the pre-trial phase. He is a freshman here. Maybe he's not aware
21 about it. I advised Mr. Re to familiarise himself of the earlier stage of
22 proceedings of this case. We have a ruling in that regard.
23 JUDGE MUMBA: Mr. Pantelic, there is no need for you to address
24 Mr. Re like that. You simply go on as to what the evidence is all about
25 and how you interpret it; that's all.
1 MR. PANTELIC: Thank you, Your Honour. I will do that.
2 With regard to the issue of statehood, the Defence reiterates its
3 position stated in Defence brief. The basis of the Defence submission can
4 be found, inter alia, in statement of top-ranking official of Australian
5 ministry of foreign affairs, Mr. Ronald Rich who stated in
6 Bosnia-Herzegovina's admission to the UN, "the UN Security Council had
7 unanimously recommended this country's membership and the General Assembly
8 had unanimously accepted the recommendation. Yet every newspaper reader
9 in the world knew by that time that not only could Bosnia and Herzegovina
10 not be accurately described as independent, but it could hardly be
11 described as a state." These words speak for themselves.
12 Given the fact that the Prosecution failed to prove the objective
13 elements of Article 2 of the Statute, count 3 to the indictment, should be
14 dismissed. With regard to the cumulative charge in count 1 and 2 of the
15 indictment, in the light of the fact that both counts encompass same
16 objective elements required for the application of Article 5 of the
17 Statute, the Defence is convinced that this Trial Chamber will make proper
18 ruling on that issue at a later stage.
19 Also, I am compelled to argue and to hope that in viewing the
20 facts in this case you will view them as they specifically relate to
21 Dr. Simic and specifically hold the Prosecution in demonstrating each and
22 every element, such as, for instance, the element of mens rea, and that
23 these -- the Prosecution arguments will not be accepted. In fact, with
24 regard to Dr. Simic's mens rea, Dr. Simic was not behind of the process
25 described as ethnic cleansing, as stated by the Prosecution. Dr. Simic
1 was not part of it. Dr. Simic was never expressed his mens rea, the
2 requisite element for the application of the Article 5 of -- actually,
3 crime of persecution is the specific higher level of mens rea, which is
4 the intent to discriminate or to act on discriminatory basis.
5 Your Honours, the overwhelming evidence in this case clearly
6 establishes the state of mind of Dr. Simic. Dr. Simic wholeheartedly
7 participated in all activities of civilian municipal authorities in order
8 to improve living conditions of thousands of citizens of Bosanski Samac
9 municipality, as I earlier stated, municipality situated at the front
10 line, a community suffering of daily shelling, and society suffering from
11 lack of food, medications, water, and electricity. He did so without any
12 discriminatory intent and for the benefit of all members of society,
13 regardless of their ethnic background.
14 So the evidence clearly shows that Dr. Simic did not possess a
15 requisite state of mind in order to be held responsible for the crime of
16 persecution, as charged in count 1 of the indictment.
17 With regard to the Prosecution claims from -- submitted in their
18 brief, the -- in para 1, Prosecution claims that the Crisis Staff and its
19 military assistants ethnically cleansed an entire municipality of its
20 Croats and Muslims. The Defence respectfully submits and includes by
21 reference all its prior submissions and pleadings that there was no ethnic
22 cleansing in Bosanski Samac municipality, that all non-Serbs who lived in
23 the part of pre-war municipality of Samac, namely, in Domaljevac, in
24 surrounding area - this is the other part of the pre-war municipality of
25 Samac - lived there before the outbreak of hostilities, during the civil
1 war in Bosnia, and even after the Dayton Peace Accord.
2 So there is no evidence or any grounds to say that Dr. Simic could
3 ethnically cleanse someone who was living there before the war, during the
4 war, and after the Dayton. I'm specifically addressing this issue with
5 regard to the Croat-controlled part of pre-war municipality of Bosanski
6 Samac, which now and during the war was named as Bosanski Samac
7 Domaljevac, and we heard many overwhelming evidence with that regard, but
8 I believe that my learned friend Mr. Lukic will address this issue in more
9 detail, with regard to the demographic issues.
10 So the Prosecution failed to provide evidence regarding the
11 allegation of ethnic cleansing in the municipality of Bosanski Samac.
12 With regard to the Prosecution's submissions in chapter 2 of its
13 brief, it is clear that the Prosecution, by alleging the concept of joint
14 criminal enterprise tried to fabricate impossible theory regarding
15 participation of an accused in all three types of joint criminal
16 enterprise. This is another novel of Prosecution. This legal novel is by
17 all means an unfounded allegation without any reference to the case-law of
18 the Tribunal, and the Defence has already addressed this issue in the
19 earlier part of this submission.
20 With regard to the allegations of the existence of an overall
21 joint criminal enterprise in Republika Srpska, it is clear from the
22 Defence's previous submission that this is an ill-founded theory. The
23 Prosecution referenced in its paragraph 22 of its brief regarding the work
24 of so-called - I'm quoting - "constitutional court of Bosnia-Herzegovina"
25 is totally groundless, due to the fact that it is obvious that none of the
1 Bosnia and Herzegovina institutions led by Muslims, Bosnian Muslims, at
2 that time, did not express and they were not legitimate acting on behalf
3 of all three constituent nations. They acted on behalf of only Bosnian
4 Muslims. That was a period of dissolution of the state, and, as stated in
5 our earlier submission, and as stated by the Defence expert, Professor
6 Pavle Nikolic.
7 In addition, the Defence respectfully submits that it is clear
8 from the evidence that SAO Northern Bosnia never operated and therefore it
9 is impossible to infer or to conclude -- to make any relevant conclusion
10 regarding the existence of such a body, when one body is not existing,
11 there is not any consequences of the work of non-existing body.
12 With regard to the Prosecution's submission on the events in
13 Bosnia-Herzegovina throughout the period between September 1991 and
14 mid-April 1992, the Defence reiterates its position stated in its brief
15 and throughout the trial proceedings, and I, with some details this
16 morning, explained what is the position of the Defence with regard to the
17 certain events in period of September 1991, as pleaded in the indictment,
18 until the April of 1992.
19 With regard to paragraph 35 of the Prosecution brief, the Defence
20 reiterates its position that the words "state borders" are inaccurately
21 translated from B/C/S, since the right meaning of the word -- I will say
22 that in B/C/S, r-a-z-g-r-a-n-i-c-e-n-j-e, should read as delineation,
23 delineation. As translated by the official court interpreters. And we
24 could find this translation in transcript 12590.
25 In relation to paragraph 36, the Defence submits that the
1 quotation made by the Prosecution is irrelevant to this case, since
2 President Radovan Karadzic, in his words, at 50th session of Republika
3 Srpska assembly held on 5th and 6th of April, 1995, did not mention
4 Bosanski Samac municipality by any word. So it's irrelevant.
5 In paragraph 38 of its brief, the Prosecution probably
6 unintentionally increased the percentage of the electorate to 64 per
7 cent. In fact, the exact figure was and should be 63.4 per cent. In any
8 case, it was less than two-thirds of total voting population. In the same
9 paragraph, the Prosecution uses the term "Bosnian government" in relation
10 to the international recognition. As stated by the Defence, this word
11 should be read, according to the Defence understanding, as "Muslim-led
12 Bosnian government," and this fact negates the legitimacy of the process
13 of recognition.
14 Probably by omission, although I think that my colleague changed
15 that yesterday, but I must quote, because in Prosecution brief, in para
16 4-0, mentioned two dates, 29th of April, 1992, when allegedly Serbian
17 Montenegro themself proclaimed to be successors of the SFRY, and 19 of
18 May, 1992, as the date when Bosnia-Herzegovina was admitted as a state
19 member to UN. I believe that it was corrected in yesterday's submission,
20 but for the record, since I'm analysing Prosecution brief.
21 Then in paragraph 42 of its brief, the Prosecution states that the
22 Serb forces attacked and took over 11 towns in northern Bosnia, listing,
23 among others, towns of Bijeljina, Zvornik, and Foca. For the sake of
24 clarity, the Defence would like to respectfully bring to this Trial
25 Chamber's attention a well-known fact that none of these towns are locate
1 in northern Bosnia.
2 With regard to the paragraph 45, and specifically, footnote 66, it
3 is obvious that the Prosecution misinterpreted the evidence. The Defence
4 respectfully states that the Defence Exhibit D166/1 clearly shows that the
5 SDS in Bosanski Samac did not form any military units within the
6 municipality. In addition, none of the witnesses mentioned in footnote 66
7 corroborates this Prosecution assertation with regard to reference in
8 paragraph 47, the Defence states that Maksim Simeunovic in his capacity as
9 intelligence officer of 17th Tactical Group, like the other military
10 witnesses, desperately tried to minimise his personal role and the role of
11 the 17th Tactical Group in military operations conducted within the
12 municipality of Bosanski Samac.
13 Furthermore, the Prosecution relies on Simo Zaric's testimony in
14 paragraph 48 of its brief, but the exact words of Mr. Zaric, such as, and
15 I'm quoting: "You could." And then another word, I'm quoting: "This is
16 my conviction." And I'm quoting again: "This is my opinion." So these
17 words clearly shows that, number one, Simo Zaric only speculate in his
18 statement; and number 2, that Simo Zaric, as the other military officials,
19 tried to minimise the role of military in the events in Bosanski Samac;
20 number 3, since Mr. Zaric is speaking of the so-called shadow government,
21 it is obvious that he is neither a constitutional law expert, nor he's an
22 international law expert, so he cannot be able to give evidence, reliable
23 evidence, regarding these issues. And it is rather strange that the
24 Prosecution did not rely on someone else who might be of better assistance
25 with regard to these issues.
1 As regards paragraph 49, the Prosecution misinterpreted words of
2 Defence witness Savo Popovic, because Mr. Popovic clearly stated that the
3 Crisis Staff did not take part in taking over the territory of Odzak,
4 number 1; number 2, that he doesn't know about the killings and that there
5 are certain similarities between Milan Simic and Biljana Plavsic's
6 statements, but only these similarities are in wording and not in factual
7 basis regarding the actual situation in Odzak. So getting out of context
8 a few words doesn't mean that it is the evidence.
9 So these portions should be viewed in the totality of the
10 testimony of Mr. Savo Popovic.
11 Then the Prosecution referenced to the testimony of Marko
12 Tubakovic, commander of 2nd Detachment of 17th Tactical Group, as stated
13 in its paragraph 50, is clear example of misunderstanding and
14 misinterpretation of evidence. Marko Tubakovic clearly stated that
15 volunteers who arrived in Samac intimated [sic] all citizens. Since it is
16 indisputable that Lugar group was under command of the military and since
17 Marko Tubakovic was the commander of the 2nd Detachment and later member
18 of the command of 2nd Posavina Brigade, it is clear that he and the other
19 officers were solely responsible for the acts of the members of Lugar
20 group. This is a concept of command responsibility.
21 In addition, Tubakovic testified that nowhere in the platform of
22 the SDS party the issue of ethnic intolerance was stated. That was the
23 word of Marko Tubakovic.
24 With regard to paragraph 58 to 61 of the Prosecution brief, which
25 relate to the alleged role of Dr. Simic in the alleged joint criminal
1 enterprise, the Defence reiterates and includes by reference its position
2 and roles the attention of the Honourable Trial Chamber that is clear from
3 the evidence in this trial that Dr. Simic did not play any role in the
4 appointment of military commanders and that this process was in the hands
5 of Superior Command, namely, the 17th Corps of JNA and later Eastern
6 Bosnia Corps of VRS. With regard to the alleged consultation with Frenki
7 Simatovic, shall we go -- the Defence relies on the Exhibits under the --
8 shall we go in private? No? Shall we go in private?
9 JUDGE MUMBA: Are you discussing --
10 MR. PANTELIC: Can we go in private for a second, Your Honour?
11 JUDGE MUMBA: Very well. Let's go into private session.
12 [Private session]
19 [Open session]
20 MR. PANTELIC: Thank you.
21 The Prosecution relies heavily on so-called variant A and B,
22 Exhibit P3 and P45, instructions for the organisation and activities of
23 the Serb people in Bosnia-Herzegovina in a state of emergency, to
24 establish a connection between the actions of Bosnia -- Bosnian Serb
25 leadership and the municipal authorities in Bosanski Samac.
1 We addressed that issue in our paragraphs 26, 32, and 108 in more
2 details in our brief. However, yesterday Mr. Re stated that the
3 Prosecution of course acknowledges that it does not have a copy that was
4 sent to Bosanski Samac. Yes, the Defence agrees with the Prosecution due
5 to the simple fact that this particular document does not exist at all,
6 and that is why it cannot be ascribed to the municipal authorities in
7 Bosanski Samac. The reference of the Prosecution with regard to the other
8 municipalities is absolutely irrelevant to this case. We don't have
9 evidence in this case regarding that particular document.
10 In its final trial brief, the Defence addresses this document in
11 the paragraphs 207, 561, 648, and in its discussion of the Exhibit P3 on
12 page of Defence brief 136 and elsewhere in the brief. Briefly, this
13 document, this exhibit, P3 or P45, as you wish, this is an unauthenticated
14 document that was never even discussed by the Municipal Assembly of
15 Bosanski Samac, as testified by several members of the civilian municipal
16 authorities in Samac. This document did not bear the customary stamp or
17 signature and the highest organ of Republika Srpska SDS denied its
18 existence. In our submission, we make the reference to the Defence
19 exhibits to that extent.
20 Further, there is no direct evidence showing that the Bosanski
21 Samac Crisis Staff was created pursuant to this document. As evidence of
22 a plan for the forcible takeover, the Prosecution notes that several other
23 Crisis Staffs were formed elsewhere in B and H after the alleged issuance
24 in December of 1991. However, the Samac Crisis Staff was not created
25 until five months later, namely, on 19 of April, 1992. And in response to
1 an impending attack by Croat and Muslim forces on Bosanski Samac.
2 And again, I reiterate my submission with regard to the joint
3 criminal enterprise which was alleged in Krajisnik and Plavsic case,
4 covering dozens of municipalities of Republika Srpska, and then it was
5 struck out. And this issue raised an obvious question: Why did the OTP
6 remove Bosanski Samac from its allegation of a joint criminal enterprise
7 in that particular case? The Defence respectfully submits that the reason
8 for this is because there was in fact no joint criminal enterprise among
9 the civilian authorities of Bosanski Samac.
10 Further, there is no evidence to indicate a link or a nexus
11 between the top leadership of Republika Srpska and the municipal
12 authorities of Bosanski Samac with regard to the alleged crime of
13 persecution. Then the Prosecution cites, in para 109, a meeting in
14 village of Struke, in Odzak municipality, on 29 of February, 1992.
15 I would like to address the issue of the chronology of the
16 Prosecution, because obviously there is discrepancy between the date to
17 this particular -- related to this particular meeting in Struke. It's
18 actually 29 February and 29 March. So it is not accurate in submission of
19 the Prosecution. Because in paragraph 109, the Prosecution uses period 29
20 February and in chronology it's 29 March. So it's ambiguous.
21 The Prosecution alleges that the meeting was held in Struke, at
22 which Dr. Simic allegedly stated that the JNA would protect the Serb
23 population and that the Serbian municipality of Samac had been formed
24 earlier that day. The Prosecution relies solely on the evidence provided
25 by its witness Blaz Paradzik. However, Dr. Simic denied making any such
1 statement or speech at this meeting, or that he even saw Mr. Paradzik at
2 that meeting. And further, Defence witness Mitar Nijemcevic, the owner of
3 the house in Struke where the meeting was held, although with the other
4 agenda, testified that Dr. Simic was merely passing through the village
5 and state only for a few minutes and gave no speeches. The same witness
6 testified that Paradzik was not present at the meeting. Thus, the only
7 reasonable conclusion is that the Paradzik testimony holds no weight and
8 the testimony of Dr. Simic and the owner of the house, Mr. Nijemcevic,
9 should be believed. And as I said, we addressed that matter in our brief.
10 JUDGE MUMBA: Yes, Mr. Pantelic. Can we have our break.
11 MR. PANTELIC: It's our break, yes.
12 --- Recess taken at 12.31 p.m.
13 --- On resuming at 12.57 p.m.
14 JUDGE MUMBA: Yes, Mr. Pantelic, continue.
15 MR. PANTELIC: Yes. Thank you, Your Honour. Before I --
16 beginning with this second part of my submission -- I mean the other part
17 of my submission, just a small correction to the transcript. It is page
18 69, line 5. Instead of word "intimated" should be "intimidated."
19 In correction to the transcript, page 65, line 5, instead of word
20 "intimated" should be "intimidated."
21 The Prosecution states in its paragraph 110 that the Serb assembly
22 of Bosanski Samac on 28th March 1992 elected officials who would later run
23 the "post coup organs of government." The bare fact is that the
24 Prosecution failed to present any evidence that the officials at the
25 meeting acted with a post coup or parallel government in mind or acted in
1 furtherance of so-called variant A and B.
2 In fact, Bogdanovic was not even a member of the SDS at that time,
3 as testified by Todorovic, transcript 9048. And Todorovic had previously
4 been thrown out of the party after the 1990 municipal elections of Samac
5 municipality, as testified by Dr. Simic, transcript 12236.
6 Further, a list of officials elected at that meeting clearly shows
7 that several persons elected at that time were not members of any party or
8 were members of other parties. In addition, there is no evidence that the
9 elected members of the municipal Executive Board were all members of SDS.
10 Therefore, it is simply untenable to hold that the mere election of some
11 officials belonging to the SDS party, along with the officials from other
12 parties, must have been conducted pursuant to so-called variant A and B.
13 At any rate, the Prosecution claims on this issue are groundless
14 is supported by the fact that the Prosecution failed to elicit any
15 evidence that the acts of Todorovic and Bogdanovic were committed in
16 furtherance of so-called variant A and B document.
17 Lastly, there is no evidence to indicate that Dr. Simic, who was
18 not a speaker of the Municipal Assembly at that time, that was Ilija
19 Ristic, and later on acting president Dusan Tanasic as we know from the
20 Exhibit P124. So Dr. Simic -- there's no evidence that Dr. Simic played
21 any significant role in these elections or acted in any way to further the
22 so-called variant A and B.
23 In essence, the Prosecution seeks to portray the valid election of
24 municipal officials as a crime.
25 In addition, the Prosecution alleges that a small but trusted SDS
1 welcoming committee met paramilitaries in Batkusa, paragraph 113. It is
2 reckless for the Prosecution to insinuate that the mere presence of
3 Todorovic and Ivanovic in Batkusa constitutes an SDS welcoming committee.
4 In this situation, both men were likely acting in their capacity as
5 military officials, as testified by Todorovic, transcript 9038. In brief,
6 there is no evidence that they were sent by the SDS as an organisation or
7 by Dr. Simic personally to this meeting. Following the Prosecution logic,
8 it would seem that any time two people who happened to be members of the
9 same party gather at the meeting, it constitutes official party action.
10 Further, following the Prosecution reasoning, it is more
11 reasonable inference, given the fact that these two men acted on behalf of
12 the military. The Lugar group was under the command and control of the
13 17th Tactical Group. As such, their presence in the area of Bosanski
14 Samac municipality was clearly a military operation, a part of military
15 operation. Ivanovic was a commander with the 1st Detachment of the 17th
16 Tactical Group, as stated in Prosecution brief paragraph 113, and
17 Todorovic was assistant commander for intelligence of the 1st detachment
18 of the 17th Tactical Group. And moreover, Maksim Simeunovic, who was at
19 that time assistant commander for intelligence of 17th Tactical Group,
20 testified that, I'm quoting, "an associate called him to inform him of the
21 arrival of the Lugar group in Batkusa," transcript 15856. Simeunovic
22 further testified that in the course of verifying the arrival of the Lugar
23 group, he went to the 1st detachment in Batkusa, where he saw both
24 Ivanovic and Todorovic standing outside.
25 In order to logically establish a connection between the SDS and
1 the actions of Todorovic and Ivanovic, the Prosecution is required to show
2 some form of active direction on the part of SDS or Dr. Simic. And they
3 failed to do so. On the contrary, the evidence overwhelmingly indicates
4 that the arrival of the Lugar group was solely a military operation;
5 indeed, this is another example of the Prosecution making unfounded
6 inferential leaps based on evidence that does not support the
7 Prosecution's conclusions.
8 In paragraph 114, the Prosecution alleges that Dr. Simic was
9 present at meeting on Donji Zabar on 12th of April, 1992, with military
10 officials, indicating Dr. Simic's participation in the so-called
11 takeover. Again, the Prosecution appears to contradict itself. Elsewhere
12 in its brief, the Prosecution seeks to portray Dr. Simic as having
13 authority and control over police and military affairs in Samac. However,
14 in this section, the Prosecution acknowledges that the JNA and not the
15 civilian authorities transported the Lugar group to Batkusa. Further, the
16 Prosecution concedes that Colonel Nikolic not Dr. Simic or any other
17 civilian official arranged this meeting.
18 Moreover, Dr. Simic denied being present at this meeting. But
19 even assuming Dr. Simic was at that meeting, Colonel Nikolic himself
20 testified that all of the present at the meeting did so at his express
21 invitation, so that he could ascertain the identity of the Lugar group and
22 the reasons for their presence and to discuss the situation in the
23 municipality of Bosanski Samac. Thus, it is clear the purpose of the
24 meeting was to gather information on activities occurring in Bosanski
25 Samac, not to formulate plans for takeover. Colonel Nikolic further
1 testified that no plans for cooperation between military and the SDS were
2 discussed or formed at this meeting. Moreover, Nikolic testified that
3 Stevan Todorovic did most of the talking, and admitted at that meeting
4 that he, rather than Dr. Simic, played a significant role in the arrival
5 of the Lugar group.
6 In light of the foregoing, it is clear that the Prosecution failed
7 to prove Dr. Simic's active participation in the planning of takeover,
8 beyond a reasonable doubt. The alleged mere presence of the accused at
9 this meeting is not sufficient to establish individual criminal
10 responsibility under the international law. Certainly, there is no
11 evidence Dr. Simic advocated joint action between JNA and SDS for a
12 forcible takeover.
13 In paragraph 115, the Prosecution cites a meeting between the SDA,
14 SDS, and HDZ on or around 13th of April, 1992, in the municipal building
15 where Dr. Simic allegedly issued an ultimatum. The Defence addressed this
16 issue in its brief in paragraphs 253, 254, and 600. Dr. Simic denied
17 making any ultimatums or threats and testified that the purpose of the
18 meeting was to discuss the implementation of the conclusions of
19 international community, inter alia, Lisbon agreement and the situation in
20 the region.
21 Furthermore, several witnesses present at that meeting testified
22 that the atmosphere was generally calm and tolerant and that Dr. Simic did
23 not make any ultimatums or threatening comments. Moreover, Dusan Tanasic,
24 the acting speaker of the Serbian Municipal Assembly of Samac and
25 Pelagicevo also testified that the meeting was generally calm and
1 Dr. Simic did not make any threatening comments. In fact, Defence witness
2 Simeon Simic, being present at that meeting, testified that one exception
3 to this was when Izet Izetbegovic, the Prosecution witness, one of the
4 leaders of the local chapter of the SDA [Realtime transcript read in error
5 "SDS"] party, continued to make threatening comments such as, I'm quoting:
6 "You have your own army. I have mine, and that is how we will resolve
8 Transcript 13000.
9 There's just a correction, sorry, to the transcript, page 77, line
10 14, instead of SDS party, should be SDA.
11 In addition, the only evidence the Prosecution cites in
12 attributing these comments to Dr. Simic is testimony of Sulejman Tihic,
13 and Izetbegovic both members of the opposition SDA party. In contrast,
14 several witnesses from various parties at that meeting testified that
15 Dr. Simic uttered what became a well-known statement. I'm quoting: "It is
16 better to negotiate for hundred days than to go to war for even a single
18 Several witnesses confirmed that Dr. Simic added: "There is no
19 state which is worth shedding a child's tear, let alone a drop of child's
21 Transcript 12999.
22 Furthermore, Defence witness Simeon Simic testified that the
23 meeting was chaired by Mato Nujic, a Croat, who was an HDZ representative
24 and a speaker of the Municipal Assembly of Bosanski Samac. At that
25 meeting, Mr. Nujic informed those at the meeting of the establishment of
1 the Croatian community of Bosnian Posavina and that the municipality of
2 Bosanski Samac was included in this territory. In addition, he raised the
3 issue of the partition of the territory, referring to international
4 documents, transcript 12994-13000.
5 In sum, at least four witnesses from various parties testified
6 that Dr. Simic was calm and tolerant during this meeting and in fact
7 implored those gathered to seek a peaceful solution. The Prosecution
8 could cite only two members of the SDA, political opponents of Dr. Simic,
9 who alleged that Dr. Simic made a threatening comment.
10 Additionally, a witness present at that meeting testified that it
11 was a Croat representative who chaired the meeting and raised the issue of
12 partition of the territory. Thus, it is clear that the Prosecution failed
13 to meet its burden of proving beyond a reasonable doubt that Dr. Simic
14 made these alleged comments.
15 In paragraph 116, the Prosecution cites the Samac Official Gazette
16 in alleging that the Crisis Staff was formed on 15th of April, 1992. The
17 Defence addresses this issue on its final brief in paragraphs 11, 22, 123,
18 212; page 95, under section 7; page 1-5, under section 1; and page 164,
19 under section 1 and 3.
20 The Defence maintains that the creation of the Crisis Staff
21 occurred on 19 April 1992. In response to the outbreak of hostilities and
22 the resulting urgent needs of the civilian population, such as water,
23 electricity, food, et cetera.
24 The Prosecution relies solely on the preamble of this gazette,
25 P124, and cites no corroborating testimony by those actually involved in
1 its creation. The gazette preamble cites no sources for its information,
2 quotes no individuals involved in this issue and does not include an
3 official decision as was customary for articles of that type.
4 The Trial Chamber witness Mitar Mitrovic, secretary of the
5 Assembly, on which testimony the Prosecutor relies, simply is not reliable
6 because he was a secretary of the Assembly, obviously being a jurist, a
7 lawyer, he was in charge for preparation of every documents, as we heard
8 from the testimony of many of Defence witnesses. So this particular story
9 that Mr. Mitrovic stated here before this Trial Chamber that Dr. Simic
10 made some kind of editorial attempts is absolutely unsustainable.
11 In fact, there is no official document establishing the Crisis
12 Staff or listing its membership. This is due to the fact that in the days
13 after the outbreak of hostilities on 17th of April, 1992, a number of
14 Municipal Assemblymen and civilian officials made spontaneous attempts to
15 organise a body to coordinate efforts to address the living conditions of
16 the civilian population during war. However, several witnesses testified
17 that the Crisis Staff was in fact officially formed on 19 April 1992, with
18 the adoption of the document under the title "Introduction of a State of
19 Emergency in the Territory of Samac Municipality." This is corroborated
20 by the testimony of Mirko Lukic, transcript 12683 and 12874; then Simeon
21 Simic, transcript 13024; and Lazar Mirkic, transcript 18900. In addition,
22 Trial Chamber witness Mitar Mitrovic testified that he was told either on
23 18 of April or 19 of April that "a temporary Crisis Staff," and I'm
24 quoting, "would need to be organised or rather established as an ad hoc
25 body to function on a temporary basis," transcript 18697.
1 In conclusion, the editorial-like preamble to the gazette cites no
2 sources for its information, quotes no officials involved in Crisis Staff
3 formation. Further, several witnesses, including a Trial Chamber witness,
4 testified that the Crisis Staff was in fact formed in response to the
5 outbreak of hostilities in the region. Moreover, the fact that the Crisis
6 Staff in Samac municipality was formed after attacks by Croat forces
7 pursuant to the creation of Croatian community of Bosnian Posavina refutes
8 the Prosecution's allegations that its formation was a part of some
9 prearranged plan for a takeover of the region. Clearly, in the specific
10 case of Samac, there is no evidence to suggest that the creation of the
11 Crisis Staff had any connection to so-called variant A and B document
12 allegedly issued five months before.
13 And, Your Honour, just take a look on the territory in Bosnian
14 Posavina occupied by Muslim and Croat forces at that time, and you will
15 see that the only island within the region of controlling by Muslim and
16 Croat forces was Samac. Logic calls to conclusion that if there was a
17 plan to occupy a region by Serb forces, then how it's possible that it was
18 not done? And furthermore, due to the fact of military political
19 objectives of Muslim and Croat side at the beginning of July 1992, the
20 military operation called corridor was launched by VRS. Why this
21 operation should be launched, if the Serbian forces controlled all this
22 territory in accordance with the previous plans, as alleged by the
23 Prosecution. It's not logical.
24 In paragraph 117, the Prosecution states that Dr. Simic was
25 present at the meeting in Obudovac on 15th of April, 1992, where he said:
1 "Crisis Staff was to meet the next night to ensure that civilian
2 authorities would be ready to swing into action to make sure the
3 government still worked." The Prosecution cites only the testimony of its
4 star witness, Stevan Todorovic, whose testimony the Trial Chamber itself
5 has warned should be taken with caution, with regard to this particular
7 Furthermore, Todorovic himself conceded that Dr. Simic was in fact
8 not present at that meeting, transcript 9905. In paragraph 118, the
9 Prosecution alleges that Dr. Simic's presence in Crkvina from where the
10 Lugar group commenced its attack on 17 April 1992 indicates his
11 participation in a joint criminal enterprise. Again, the Prosecution
12 relies heavily on the testimony of Stevan Todorovic, whose credibility is
13 suspect. In this instance, Todorovic stated that, among others, Trial
14 Chamber witness Mitar Mitrovic was present in Crkvina, which Mr. Mitrovic
15 denies, transcript 18809-10.
16 Of the others who Todorovic said were present at the meeting, Bozo
17 Ninkovic testified that he spent the night between 16th and 17th of April
18 at his sister's house, transcript 13507-8. Further, next person mentioned
19 by Todorovic allegedly present in Crkvina, Simeon Simic testified that he
20 spent that night at his family house in Kruskovo Polje, and in response to
21 Her Honour Judge Mumba's questioning, admitted that he only learned about
22 what happened that night on 19 April at the first meeting of the Crisis
23 Staff, transcript 13003-4.
24 At any rate, Dr. Simic acknowledges being in Crkvina on 17th of
25 April, 1992. After he and other doctors were called early in the morning
1 of 17th of April by an army duty officer and told to go to Crkvina to tend
2 to the wounded. At the time of the call, Dr. Simic was at his family home
3 in. Dr. Simic was the only doctor to respond to this call and tended to
4 several wounded soldiers. Indeed Dr. Simic's testimony is confirmed by
5 the fact that, as the Prosecution itself cites, Zaric's brother-in-law,
6 Fadil Topcagic, he saw Dr. Simic tending to a wounded soldier. See
7 Prosecution brief paragraph 118.
8 The fact that Dr. Simic, a physician, was summoned from his home
9 to tend the wounded soldiers on the night hostilities broke out can hardly
10 be said to show beyond a reasonable doubt that he intended to participate
11 in joint criminal enterprise.
12 In paragraph 128, the Prosecution alleges that Dr. Simic called
13 Colonel Nikolic at 3.00 a.m. on 17th of April to inform him that Serb
14 forces were taking over Bosanski Samac. Dr. Simic denied he made this
15 call. In addition, several witnesses, including the Prosecution's own
16 witnesses, testified that the telephone lines were cut during the time
17 this call was alleged to have taken place. Prosecution witness Dragan
18 Lukac, transcript 1653-4, testified that the phone lines were cut when he
19 tried to make a call around 2.25 a.m. on 17 of April, 1992, and were still
20 cut when he tried to make a call from a neighbour's house shortly
21 thereafter. Chief of police, Dragan Lukac, testified to that.
22 Prosecution witness Sulejman Tihic, head of state of Bosnia now
23 and prominent lawyer, testified, transcript 1358-9. So he similarly
24 testified that the phone lines were down for about three hours in the
25 early morning hours of 17th of April. He further testified that the phone
1 lines were still down at 3.00 a.m., the very time the Prosecution now says
2 Dr. Simic made this call. Commander of Muslim military unit, Prosecution
3 witness Alija Fitozovic, testified on transcript 8509 that the phone lines
4 were not operational again until around 5.00 a.m., and moreover,
5 Todorovic, the crown witness, the top witness of the Prosecution,
6 testified, transcript 9086, that the 4th Detachment was tasked with the
7 responsibility of disconnecting the phone lines at 3.00 a.m. And so, I'm
8 quoting: "Not one single phone in the municipality was functioning."
9 Thus it is clear from the Prosecution's own witnesses that Dr. Simic could
10 not have made this call.
11 In addition to that, I'm just quoting several examples, but we
12 have many Prosecution witnesses testifying that at that time, the critical
13 time, the phones were cut off in Bosanski Samac. Indeed, Colonel Nikolic
14 appears to be the only witness present in Bosanski Samac that night who
15 believes the phone lines were working, and furthermore, the Prosecution
16 relies, they are desperate to make this evidence, to prove their theory,
17 so the Prosecution relies only on testimony of Colonel Nikolic. You can
18 see in its brief, for its assertation here, despite the testimony of
19 several other of their own witnesses that such call could not have been
20 made. And it is not disputed that the Lugar group was under the command
21 of Colonel Nikolic, and given this fact, it is beyond the bounds of reason
22 to suggest that Dr. Simic, as a civilian functionary, did not control
23 authority over any police or military forces, would call Colonel Nikolic
24 to state that the Crisis Staff had taken over Bosanski Samac while the
25 7.000 soldiers of the 17th Tactical Group also under the command of
1 Colonel Nikolic were supposedly asleep in their barracks.
2 The Defence asserts the testimony of Colonel Nikolic, Zaric, and
3 Simeunovic, as well as the other witnesses from the military should be
4 treated with caution due to the fact that these men have tried to shift
5 the blame from the military authorities responsible for the acts occurring
6 throughout Bosnia-Herzegovina municipality to Dr. Simic. And Prosecution
7 tried to create a notion that Dr. Simic should be a scapegoat along --
8 along civil -- so Dr. Simic along civilian functionary with no power or
9 authority to control or to stop them, Lugar group and the other
10 perpetrators within the police and military chain of command.
11 Lastly, the Prosecution again contradicts itself. In paragraph
12 121, the Prosecution states that the Trial Chamber should accept that
13 communication occurred between Dr. Simic and Colonel Nikolic. That's a
14 conclusion. However, in a footnote to this same sentence, footnote 186,
15 the Prosecution concedes that the phone lines were disconnected for
16 several crucial hours in the early morning of 17th of April, 1992, as the
17 Serb forces seized control.
18 In paragraph 127, the Prosecution, without citing any evidence,
19 states that SDS dominated Crisis Staff seized the organs if civilian
20 government -- of civilian government with the assistance of the military.
21 The Prosecution, without citing any evidence, recklessly and repeatedly
22 uses term such as SDS-dominated Crisis Staff, or Dr. Simic's Crisis
23 Staff. However, the Prosecution has presented no evidence that the Crisis
24 Staff was dominated by the SDS or that Dr. Simic wielded any particular
1 Indeed, the Prosecution statement appeared to reflect a
2 fundamental misunderstanding of the nature of the municipal civilian
3 government in Bosanski Samac. By contrast, the Defence has provided
4 substantial evidence that several members of the Crisis Staff in fact did
5 not belong to SDS. Savo Popovic was a member of SDP, socialist party of B
6 and H, headed by a Muslim. Simeon Simic was a member of the Liberal
7 Party, again headed by a Muslim. Miroslav Tadic belonged to no party. He
8 was independent.
9 As for the term "seized," the Prosecution failed to present
10 evidence that the Crisis Staff seized the municipal organs of government.
11 The Defence has shown that the Bosnia-Herzegovina was in the process of
12 dissolution from October 1991 until the Dayton Peace Accords in 1995. In
13 Bosanski Samac, all three ethnic communities in B and H established their
14 own political and legal systems. In Bosanski Samac, all three ethnic
15 groups established their own Crisis Staffs. For example, the Serb faction
16 established their Crisis Staff in one part of the municipality of Bosanski
17 Samac, and the Croats and Muslims established an analogous Crisis Staff in
18 another part of the municipality called Bosanski Samac Domaljevac, Crisis
19 Staff of Bosanski Samac Domaljevac. Thus the evidence shows in no way can
20 the SDS or Crisis Staff be said to have seized control over the municipal
21 organs, because, as I said, three constituent nations in Bosnia throughout
22 the period of 1991 until 1995 formed their own organs and institutions.
23 At any rate, the context under which the Prosecution alleges this
24 seizure includes no specific reference to Dr. Simic personally. In fact,
25 the Prosecution's version of events centres entirely on the role of the
1 police and military, two organs over which Dr. Simic and the Crisis Staff
2 had no de facto or de jure control.
3 In paragraphs 124 until 132, there is no mention of Dr. Simic or
4 Crisis Staff except in part of paragraph 138, and in 138 the Prosecution
5 cites as evidence of the Crisis Staff's role in the alleged takeover and
6 alleged meeting in Belgrade in May or June 1992 between the Crisis Staff,
7 Zaric, senior members of SFRY military regarding the appointment of Crni
8 as commander of 2nd Posavina Brigade.
9 With regard to the above-mentioned Prosecution submission, the
10 Defence introduced overwhelming evidence that Dr. Simic was not either
11 mastermind or participant in the military and police operations within the
12 municipality of Bosanski Samac. And with regard to the Prosecution's
13 submission relating to the report of General Wilmot, I already addressed
14 that issue earlier this morning.
15 In paragraph 140, the Prosecution cites the Crisis Staff order to
16 a -- to a disarmament issue, it's Exhibit P77, to suggest it related to
17 some illegal takeover of power. The Defence addressed this issue in its
18 brief in page 149 under 2 and pages 150 and 151. In the first place,
19 there is nothing to suggest this order was discriminatory nature. The
20 order was an attempt to ensure the safety of all citizens by removing
21 illegal weapons from the community. Indeed, the order applies to all
22 citizens regardless of ethnicity and the Prosecution has offered no
23 evidence to suggest otherwise. Rather, all citizens were allowed to
24 possess only those weapons which were authorised by the military and/or
25 police. Further, several witnesses testified that the --
1 THE INTERPRETER: Could Mr. Pantelic please be asked to slow down.
2 JUDGE MUMBA: Mr. Pantelic, can you slow down.
3 MR. PANTELIC: I do apologise. This was confirmed by the
4 testimony of Zaric, transcript 20051-54. Then Radovan Antic, transcript
5 16746-52. Jovo Savic, transcript 17029-31. And Stevan Nikolic,
6 transcript 18559-61. Given the fact of war and the operation of so-called
7 paramilitaries in the area, this order constitutes a legitimate effort to
8 provide for the safety of the local civilian population. And what we said
9 in our brief, since there is handwriting details on that brief and there
10 is no signature on that document, in details we explained that it cannot
11 be ascribed neither to Crisis Staff nor to Dr. Simic personally.
12 Paragraph 141, the Prosecution asserts that the declaration of
13 state of emergency, Exhibit P89 and ter, yes, in Bosanski Samac was a
14 textbook coup d'etat manoeuvre. The Defence addresses this issue on page
15 155 of its brief. This order coincided with the establishment of the
16 Crisis Staff and indeed the state of emergency was its raison d'etre.
17 While the Prosecution shows -- chooses to mischaracterise this order as a
18 textbook coup d'etat manoeuvre, it ignores one very important fact: War
19 had broken out in Bosanski Samac. Thus there was in fact a state of
20 emergency. Rather, the Prosecution seems to suggest that the war does not
21 constitute an emergency, an untenable position.
22 In addition, the Prosecution conveniently fails to note that the
23 creation of a Crisis Staff in times of emergency, such as during a flood,
24 earthquake, or war, was a standard procedure in the former Yugoslavia,
25 dating back to at least 1945. Indeed, Crisis Staff has been created on
1 several occasions over the years prior to this war in times of emergency,
2 such as natural disasters, et cetera. Does the Prosecution suggest that
3 the previous creation of this Crisis Staff was likewise a textbook for
4 coup d'etat manoeuvre? Indeed the Serbian community's Crisis Staff was
5 formed only after attacks by Croat and Muslim forces in the municipality
6 and in response to the fact that the Municipal Assembly of Serb people of
7 Bosanski Samac and Pelagicevo had stopped functioning.
8 Furthermore, the Prosecution also conveniently fails to note that
9 in addition to the Serb Crisis Staff, the Croat community also formed a
10 Crisis Staff of its own, as I mentioned earlier, in the other part of
11 municipality of Bosanski Samac.
12 In paragraphs 142 to 149, 151 to 158, and 166 to 176 of its final
13 trial brief, the Prosecution alleges that as an important step in
14 furtherance of their plan to ethnically cleanse the Serb-held territory,
15 Serb municipal and military authorities, including Blagoje Simic's
16 SDS-controlled Crisis Staff, and Dr. Simic himself, systematically
17 arrested, detained, and mistreated Bosnian Croat and Bosnian Muslim
18 civilians based on religious, ethnic, and political affiliations. The
19 Prosecution alleges that the military forced hundreds of men, women, and
20 children from their homes and took them to Zasavica. The central goal of
21 the Crisis Staff being ethnic separation by force.
22 In its attempt to establish a connection between the Bosnian Serb
23 leadership and the civilian authorities of Bosanski Samac in terms of
24 ethnic cleansing and separation, the Prosecution particularly relies on
25 Exhibit P5, Decision on Strategic Objective of Serbian People in Bosnia
1 and Herzegovina, adopted by the Republika Srpska People's Assembly on May
2 12, 1992 and published, I'm underlining that, published in the Republika
3 Srpska Official Gazette number 22 on November 26, 1993. The Defence
4 addresses this document in detail in our page 137 and 138 of our brief.
5 In sum, in addition to bearing no discriminatory insignia, this
6 document, although adopted in May 1992, was publicised only in late 1993
7 and therefore remained unknown to local civilian authorities. Dr. Simic
8 testified that he had no personal knowledge of this document and that it
9 had never been discussed by the civilian authorities of the Samac
10 municipality. Accordingly, the Defence reiterates that the Prosecution
11 allegations are unsubstantiated and therefore must fail for absence of any
12 nexus between the Samac civilian authorities and this document.
13 Throughout its brief, in paragraphs 43, 199, 217, 234, 235, 238,
14 258 to 273, 309, 310, 325 to 336, 481, 486, 487, 519, 586, 648, et cetera,
15 the Defence has clearly shown that neither the Crisis Staff in general,
16 nor Dr. Simic in particular, were in any manner whatsoever involved in
17 arrests and/or detention of non-Serbs in Samac, nor were they aware of
18 crimes committed by Stevan Todorovic. The army and the police, over which
19 they had no de jure or de facto command and control. No military or
20 police reports regarding arrests and treatment of detained individuals
21 were ever filed with the Crisis Staff or Dr. Simic, who was by law without
22 authority to control or to affect to continue the detention in different
23 centres in Samac.
24 In addition, several witnesses testified that the detentions and
25 trial proceedings against the non-Serbs were based on a reasonable
1 suspicions that the persons were illegally armed and preparing illegal
2 attacks against the Serb population. Both Prosecution and Defence
3 witnesses gave ample evidence about the police and the army playing
4 decisive roles in arrests and detention, as well as the searches of houses
5 and collection of weapons. By contrast, the Defence again underscores and
6 draws attention to the numerous examples of good acts of conduct of
7 civilian authorities in Samac towards citizens of all three ethnic groups,
8 which is corroborated in a number of witness testimonies.
9 Then in paragraph 145 until 149, Prosecution stated that the local
10 police, members of 4th Detachment and paramilitary forces participated in
11 the collection of weapons immediately after the forcible takeover. As
12 stated in pages 149 and 159, and elsewhere in its brief, the Defence
13 acknowledges the Prosecution assertation that the police and the army were
14 in charge of collecting weapons and searching houses. It is not in
16 In fact, confiscation of weapons solely within the authority of
17 the army and the police. This is also confirmed by many witnesses, called
18 both by Defence and the Prosecution. Furthermore, the Prosecution thesis
19 of the paramilitary forces also being involved in the collection of
20 weapons corroborates the Defence assertation that the Lugar group was in
21 fact deeply involved with the police and the army and under their command
22 and control. The Prosecution produced no credible or sufficient evidence
23 to link either Dr. Simic or Crisis Staff with these activities. This in
24 particular as the time the collection of weapons was taking place and
25 which is referred to by the Prosecution as immediately after the takeover
1 that the Crisis Staff had not even been established yet.
2 The Prosecution states in its para 146 that the Crisis Staff
3 commemorated that of a notorious paramilitary Aleksandar Vukovic by
4 establishing the Vuk foundation. We addressed this issue in general in
5 our -- page 143 of our brief, just to say that the absolutely
6 unsustainable position of the Prosecution in claiming that the naming the
7 foundation after a volunteer indicates some kind of discriminatory
8 intent. The decision on establishment of this foundation was aimed at
9 setting up of humanitarian fund to provide aid and wounded combatants and
10 families of fallen combatants. And it is very clear for the wordings of
11 this decision.
12 The Prosecution alleges that Dr. -- that Blagoje Simic SDS
13 controlled Crisis Staff ordered that all people of Croatian nationality be
14 arrested and isolated and taken to vital facilities in town, paragraph
16 The Prosecution persistently invokes the Exhibit P71 as an obvious
17 example of the Crisis Staff involvement in the detention of non-Serbs in
18 Samac. The Prosecution errs, as shown by the Defence on page 9091 and
19 elsewhere in its final brief. There is no credible evidence that
20 Dr. Simic even signed this document, not to mention the fact that several
21 stamps, identical to one of these decisions, were in circulation and were
22 used without authorisation or any control over their use. Several Defence
23 witnesses, members of the Crisis Staff, and Dr. Simic included,
24 categorically deny that the Crisis Staff adopted this decision. Both
25 Prosecution and Defence witnesses corroborated on numerous occasions that
1 military and police authorities were in fact in charge of these
2 procedures, which is also stated in the decision itself. The wording of
3 this decision is customary to police and military. Vital objects. We
4 address that issue in the other part of our brief.
5 So it's customary for military and police not for civilian
6 officials, and this clearly indicates that the document originates from
7 those circles. The Prosecution contradicts itself by relying on this
8 document at the same time as it admits that in Samac there was no reported
9 cases of the placement of Croats in vital facilities. Even the
10 Prosecution witness Todorovic stated that the Crisis Staff had never
11 discussed the isolation of the non-Serb inhabitants of Samac.
12 Again, the overwhelming evidence and testimony produced and
13 presented during trial that this very Crisis Staff was composed of
14 individuals coming from different or even on political parties then in
15 existence. There is no sufficient or reliable evidence in this case to
16 prove otherwise, so this is unfounded and misleading Prosecution
17 assertation must fall with regard to Dr. Simic's Crisis Staff or SDS
18 Crisis Staff.
19 Your Honour, is it time for our half an hour break?
20 JUDGE MUMBA: Yes. We'll take our break now and continue at 1415.
21 --- Recess taken at 1.45 p.m.
22 --- On resuming at 2.15 p.m.
23 JUDGE MUMBA: Yes, Mr. Pantelic.
24 MR. PANTELIC: Thank you. Thank you, Your Honours.
25 Another part of the Prosecution's submission is related actually
1 it was stated in paragraphs 170 to 174, that the Serb civilian and
2 military rulers of Bosanski Samac operated three general types of
3 detention facilities for their widespread and systematic persecution of
4 the non-Serbs, specifying police station, TO building, primary and
5 secondary school complex, Crkvina and the village of Zasavica.
6 Throughout the trial proceedings and its final brief the Defence
7 produced sufficient evidence to clearly show that:
8 Number one: The police station, TO building, primary and
9 secondary school were never under the competency and control of either the
10 Crisis Staff or Dr. Simic.
11 Number 2: Co-defendant Tadic gave evidence that the Crisis Staff
12 never either discussed the issue of formation of detention centres or was
13 asked permission for their establishment. Transcript 15274.
14 Number 3: Police and military were directly in charge and
15 responsible for these facilities.
16 Number 4: Neither Todorovic, nor any member of the military were
17 even members of the Crisis Staff or War Presidency.
18 Number 5: Dr. Simic was never in a position to oversee or control
19 the acts of the police or army and there was no obligation to their part
20 to report to the Crisis Staff and Dr. Simic.
21 Number 6: The Prosecution witness Todorovic testified on 7 June
22 2002, I'm quoting, the highest responsibility for the protection of the
23 detainees lay with me."
24 Number 7: Todorovic also testified that he had orally informed
25 the Crisis Staff on, inter alia, the prison and the people that were
1 detained, but only generally and not about all the details, as stated by
2 the Prosecution. This evidence, however, does not prove that Dr. Simic
3 was informed about it since Todorovic refers to Crisis Staff, it being a
4 collective body and not to Dr. Simic personally. Not to mention that
5 Todorovic speaks about informing them orally and in general, from which
6 one cannot infer that the Crisis Staff could have full, if any, concrete
7 knowledge of the actual situation in prisons.
8 Number 7: Blatant inconsistencies in the testimony of the
9 Prosecution witnesses Hasan Bicic, Muhamed Bicic, Ibrahim Salkic and
10 Dragan Delic regarding Dr. Simic's coming or presence to primary and
11 secondary school together with Todorovic raised profound doubts in the
12 credibility of these witnesses and veracity of their accounts of events.
13 This testimony, it is submitted, should not be afforded any
14 weight, particularly due to the fact that not only Dr. Simic himself but
15 also Prosecution witness Todorovic denies Dr. Simic was ever present in
16 any of the facilities mentioned, as well as Simo Zaric's driver Teodor
17 Tutnjevic, transcript 17467.
18 Number 8: The village of Crkvina was within the zone of
19 responsibility of the 2nd Detachment of the 17th Tactical Group, over
20 which Dr. Simic had no power whatsoever.
21 Number 9: Transport of civilians to and from Crkvina was
22 organised and carried out by the military. The Prosecution failed to
23 prove beyond a reasonable doubt that if at all any nexus between Dr. Simic
24 and arrest and detention taking place in Bosanski Samac. By ignoring the
25 evidence and unfoundedly placing impossible amount of power in Dr. Simic's
1 hands, the Prosecution is simply trying to twist and mischaracterise a
2 clear and obvious fact, that all powers over detention facilities in
3 Bosanski Samac were within police and the military.
4 With regard to the village of Zasavica referred to by the
5 Prosecution as an isolation site, the Defence respectfully reminds that
6 ample evidence was produced during trial about the composition of
7 population, living conditions in Zasavica, and activities of the civilian
8 municipal authorities aimed at securing sufficient foodstuffs and other
9 things for this village. The Defence has provided detailed submission on
10 this issue in its final brief, particularly paragraphs 24, 272, 273, 303,
11 309, 544, 567, 586, as well on the pages 145 and 184.
12 In sum, civilian municipal authorities provided livestock feed,
13 chicken feed, and cattle feed for Croat farmers in Zasavica. Civilian
14 authorities provided facilities for the education of all children in
15 Zasavica. Medical care for all people irrespective of their ethnicity was
16 arranged by setting up an infirmary. Many Defence witnesses conditions in
17 terms of housing, food, accommodation and hygiene were quite satisfactory,
18 in some instances even better than in Samac. Large number of Serb
19 refugees coming from all parts of Bosnia and Herzegovina were also
20 accommodated in Zasavica. The Defence submits that given the facts
21 described above, corroborated by many witnesses and evidence, one cannot
22 speak about any kind of isolation of the non-Serb population. Even if
23 accepting the Prosecution thesis, a question inevitably arises: Were the
24 Serb inhabitants of Zasavica also isolated? It is simply impossible to
25 isolate one part of the ethnically mixed village and not to isolate the
1 rest of it and therefore the Prosecution assertation must fall.
2 In paragraph 185, the Prosecution alleges that Dr. Simic and
3 Todorovic brought paramilitaries to the municipality to assist in a
4 takeover. The Defence addresses this issue in greater details in
5 paragraph 215, 216, 474, 475, 603, as well as the page 141 [phoen] and
6 page 169 under the 10 and was also in its Exhibit D177/1.
7 Here the Prosecution makes -- must make a giant leap of logic in
8 an effort to implicate Dr. Simic in military and police activities. At
9 the outset, the Defence again stresses that Dr. Simic and the Crisis Staff
10 did not exercise any control over the police and military units. They
11 simply did not have the power to control the acts of those conducting the
12 hostilities. In addition, the evidence overwhelmingly shows that the
13 arrival of the group was a military operation.
14 The evidence shows that Lugar group arrived in territory of Samac
15 in military helicopters, Exhibit P17. They were under the command of 17th
16 Tactical Group, P127 and transcript 18997. They participated in military
17 actions under the command of Lieutenant Colonel Nikolic, Exhibits P174,
18 P175, and transcript 18997. Nikolic and Lugar were from the same town in
20 In addition, several witnesses testified that neither Dr. Simic
21 nor the municipal chapter of SDS had any connection to the arrival of the
22 Lugar group. Further, Prosecution witness Todorovic admitted that
23 Dr. Simic had no contacts with Bogdanovic or Jovanovic concerning the
24 Lugar groups coming to Samac from Serbia.
25 Finally, the Prosecution's own footnote to paragraph 185, footnote
1 400, concedes that the Lugar group was under the authority of the police,
2 an organ almost completely independent from the civilian Crisis Staff.
3 In addition to the other evidences provided by the Prosecution
4 with regard to the command authority of Colonel Nikolic.
5 With regard to paragraph 187, the Defence would like to reiterate
6 its -- these are the events regarding the killing of Anto Brandic,
7 Mr. Anto Brandic, and a Croat nicknamed Dikan. The Defence reiterates its
8 position that it's not -- it's a part of the Todorovic plea bargain
9 agreement and just in terms of precision, we would like to address this
11 First and foremost, the Defence could not but note in this
12 paragraph 187 the Prosecution actually speaks of two killings, which
13 occurred on two different dates, 26th of April, 1992, and 29 of July,
14 1992. And these killings were allegedly committed by two different
15 perpetrators, first Lugar and the second Todorovic and other police
16 officers. In this particular paragraph, while the name of the victims is
17 the same, Anto Brandic, only the two different nicknames, Dikan and
18 Antesa, therefore unclear to the Defence whether the Prosecution errs in
19 the victim's name or in dates alleged, especially since none of the
20 witness testimony presented during trial identifies with precision the
21 person or persons in question. So my submission is rather in terms of the
22 detail of the -- I'm not going to enter into this particular axiom, of
24 Ascribing these cases to the Crisis Staff, it's impossible. The
25 Defence addressed this issue in paragraphs 483 and 485. And now the
1 Defence further states that the Prosecution again appears to fundamentally
2 misunderstand the nature of the power structure in Bosanski Samac,
3 repeatedly suggesting incorrectly that local civilian authorities had
4 authority over police and military units.
5 Even assuming, arguendo [phoen], that Dr. Simic and the Crisis
6 Staff were informed of this murder, they were by law powerless to do
7 anything about it. The military and the police were obliged to take
8 necessary actions against the perpetrators of the crime. This clearly was
9 an unlawful act by the members of the police and military. In no way can
10 the acts of Todorovic or other soldiers and police who were under the
11 command and authority of 17th Tactical Group and the regional public
12 security station in Doboj be attributed to the local civilian authorities
13 and Dr. Simic himself. Stated simply, the soldiers who perpetrated this
14 murder were not acting on behalf of the Crisis Staff. They were acting in
15 their capacity as soldiers or individually as loose cannons. Indeed,
16 Prosecution witness Todorovic, who confessed to being an accomplice to the
17 murder of Dikan himself conceded that by the law -- by law of the military
18 was the organ with the appropriate jurisdiction to investigate the murder
19 and that neither the Crisis Staff, nor Dr. Simic had authority to even
20 conduct an investigation. Transcript 9923-24.
21 Moreover, Todorovic testified that he only informally notified
22 members of the Crisis Staff about what was happening. Further indicating
23 that no formal report to or action by the Crisis Staff was customary or
24 required. Indeed, a formal report about the incident was required to be
25 filed not with the Crisis Staff, but rather to the regional centre of
1 public security in Doboj, as is consistent with the chain of command of
2 police, transcript 9930-31.
3 Todorovic also stated that Dr. Simic and the other members of the
4 Crisis Staff were shocked when they learned of the murders and called for
5 the appropriate military and judicial authorities to take action, the only
6 course of action open to civilian authorities.
7 JUDGE MUMBA: Mr. Pantelic, you've used up your three hours. In
8 fact, we exceeded by ten minutes. You do have one hour, which you are
9 supposed to use in reply, after your colleagues and after the Prosecution
10 have also used their one hour. So you can divide your time in that
11 remaining one hour.
12 MR. PANTELIC: I will take this time from my rebuttal and also my
13 other friends informed me that they can give me a few minutes from their
15 JUDGE MUMBA: How many minutes? We have to time this, because we
16 don't want to go beyond the time that was stated.
17 MR. PANTELIC: Your Honour, frankly, I will do that in --
18 JUDGE MUMBA: It's up to you. You have one hour in reply.
19 MR. PANTELIC: Yes.
20 JUDGE MUMBA: If you want to use that to complete so that you
21 don't have one hour --
22 MR. PANTELIC: Well, Your Honour, I must say, according to my
23 calculation, that if I add 20 minutes, which I got in response to the
24 Bench question --
25 JUDGE MUMBA: No. It has already been added. It's actually three
1 hours, 20 minutes, that was added already.
2 MR. PANTELIC: And also if my friends can -- if I can get the
3 credit from their time, maybe in total I will get--
4 JUDGE MUMBA: Mr. Lukic --
5 MR. PANTELIC: If that will be the case.
6 JUDGE MUMBA: Let me ask them, because they were also told that
7 they have three hours each.
8 MR. LUKIC: [Interpretation] Your Honour, I cannot say anything in
9 advance, when I finish and if there's any time left had, then I would be
10 glad to give Mr. Pantelic some of my time, but for the time I don't know.
11 MR. PISAREVIC: [Interpretation] Your Honour, as for Mr. Zaric's
12 Defence, well, in view of the fact that Mr. Pantelic dealt with some
13 issues we will not be dealing with, we can give him 15 minutes.
14 JUDGE MUMBA: Right now. So you have 15 minutes of your time.
15 Mr. Pantelic, you wind up in 15 minutes.
16 MR. PANTELIC: And also maybe I will use a part of my hour for the
17 rebuttal. Because I have to finish, Your Honour, my submission which I
18 prepared for today. It's important.
19 JUDGE MUMBA: Very well. So you use your one hour for rebuttal
20 and the 15 minutes Mr. Pisarevic has given you.
21 MR. PANTELIC: Yes. But to be precise, Your Honour, I will do
22 that less in half an hour, so I will still have, let's say, roughly 45
23 minutes for my rebuttal.
24 JUDGE MUMBA: All right.
25 MR. PANTELIC: Thank you.
1 And these few minutes, of course, which brings me to ...
2 In paragraph 187, the Prosecution again attempts to
3 mischaracterise the relationship between the police and civilian
4 authorities. The Prosecution also seeks to hold Dr. Simic liable for the
5 shooting deaths of Barto Kljajic and Marko Evic at the hands of the Lugar
6 group, solely on the basis that Todorovic testified that he informed the
7 Crisis Staff of the murders after the fact. Dr. Simic was unaware of
8 these killings. Even Todorovic himself in his testimony never
9 specifically stated that he had informed Dr. Simic personally, but only
10 the Crisis Staff in general, which is a collective body encompassed of
11 several persons. In fact, his exact words were: "I think the Crisis
12 Staff knew of this, that it was informed of this verbally," which
13 indicates that Todorovic could not even confirm with certainty that even
14 the Crisis Staff was made aware of these killings. The Prosecution also
15 refers to the testimony of Witness Mladen Borbeli, who also speaking of
16 Lugar killing two people failed to mention their names so one cannot be
17 certain if this witness was actually referring to the same individuals as
19 In conclusion, the Defence witness Ljubomir Vukovic whose
20 testimony the Prosecution also involves in relation to this incident
21 clearly stated that all the people who were actually killed in prison in
22 Samac in SUP, in the school, "as regards all those, we were neither
23 informed nor did we organise their funerals. They were not taken to the
24 morgue, and we in the civil and defence staff, civilian protection defence
25 staff therefore did not know about those people who were killed in
2 That was not accessible to the public. Such knowledge was not
3 accessible to the public. This testimony is another fact in support of
4 the Defence assertion that crimes commit by Todorovic, Lugar group and
5 others were not known to the civilian authorities and population. As
6 stated above, Todorovic himself testified that the Crisis Staff had no
7 authority to conduct an investigation or judicial proceedings against
8 those responsible. These murders were conducted by the Lugar group, a
9 unit under the command and jurisdiction of 17th Tactical Group, by law, it
10 was the responsibility of the military, not the civilian authorities, to
11 take appropriate action to bring those responsible for these murders to
13 In paragraph 188, Prosecution seeks to tie the Crisis Staff to the
14 murders conducted by the Lugar group in Crkvina around 7 May 1992. The
15 Defence addresses these accusations in paragraph 51, 61 to 64, 203 and
16 484. This is one of the most egregious examples of the Prosecution making
17 unfounded conclusions in the absence of any supporting evidence. The
18 Prosecution states merely that Lugar group committed these acts while
19 working with the Crisis Staff. However, the Prosecution offers no
20 detail -- no details regarding the alleged cooperation and cites no
21 sources for its allegation.
22 With regard to these events in Crkvina, the Defence reiterates
23 again that Zaric, Dr. Simic, and others testified that the massacre of
24 Crkvina has occurred around 8th of May and that neither the Crisis Staff
25 nor Dr. Simic has possessed any authority instigate -- to instigate
1 criminal proceedings against members of military units. In its paragraph
2 210, Prosecution states that the Crisis Staff was in charge to transfer
3 large number of illegally detained civilians to military custody. The
4 Prosecution did not offer any evidence to that extent. However, the
5 Defence reiterates its previous submission that neither Crisis Staff nor
6 Dr. Simic could carry out these activities.
7 The Defence relies on testimony of Dr. Simic, transcript 12580 --
8 82, sorry. And the key Prosecution witness Stevan Todorovic, transcript
9 9610 and transcript 10118-9.
10 Transfer of detained civilians was solely in the hands of military
11 and police.
12 In relation to paragraphs 212 and 214 of the Prosecution brief,
13 the Defence states the following: Number 1: Dr. Simic was unable to
14 perform his duty within War Presidency throughout at least August of 1992
15 and after, and the following months, since he was wounded and he received
16 medical treatment.
17 Number 2: All events regarding Zasavica were out of Dr. Simic's
18 powers and competencies.
19 Number 3: Even the Prosecution admits in its paragraph 254 that
20 in August 1992, around 200 non-Serbs of military age were called to a
21 meeting at Spomen Dom, in order to be relieved of work obligation if they
22 took up arms of Republika Srpska. This meeting was organised by the
23 military, and since great majority of non-Serbs refused to respond to that
24 offer, all of them swum across the Sava River that night.
25 Number 4: In response to that action, Stevan Todorovic issued an
1 order banning gathering of three or more non-Serbs in town, and soon
2 after, military and police transferred a number of family members of
3 non-Serbs who escaped from Samac to village of Zasavica.
4 Number 5: This is clear evidence that Dr. Simic, being out of
5 Samac at that time, and having no authority over police and military,
6 cannot be responsible for the transfer of non-Serbs in Zasavica. In
7 paragraph 228, the Prosecution states that Milos Bogdanovic and Bozo
8 Ninkovic were members of the Crisis Staff and they were appointed and
9 dismissed from their position of the Crisis Staff pursuant to a decision
10 signed by Dr. Simic. As you have in our outline on many paragraphs in our
11 brief, we address this issue. And also the Defence in greater detail
12 discussed the issue raised by the Prosecution, so-called forced labour
13 programme, and then as well as the competencies and scope of activities of
14 the municipal department of the Ministry of Defence, and this department
15 as such was in charge of the work obligation and was directly subordinated
16 to the republican-level ministry and not to the Crisis Staff.
17 In addition, Defence would like to respectfully remind of the
18 testimony of Mr. Ninkovic [Realtime transcript read in error "Nikolic"],
19 who, on 9 December, gave the evidence that he never had been a member of
20 the Crisis Staff from April 20 to July 16 1992, Mr. Ninkovic was employed
21 at the information service as a journalist and his superior was Simeon
23 JUDGE MUMBA: Mr. Pantelic, can you clarify. What is the correct
24 name we are trying to cite? Is it Nikolic or Ninkovic?
25 MR. PANTELIC: Ninkovic. Bozo Ninkovic, yes.
1 JUDGE MUMBA: All right.
2 MR. PANTELIC: So he worked as a journalist in a media service, I
3 would say. And his superior was Simeon Simic. The payroll list clearly
4 shows -- it's D55/1, clearly shows who worked in which capacity in and
5 around Crisis Staff.
6 Then in paragraph 250, Prosecution alleges that Dr. Blagoje Simic
7 awareness of forced labour programme is further supported by Witness M and
8 K, who encountered Simic in the course of work assignment at the home of
9 famous folk singer in Odzak.
10 The Defence reiterates again its position regarding the concept of
11 work obligation and the organs who were in charge of it. We address that
12 issue in our paragraphs 341 and 342.
13 Compelling evidence presented during trial clearly shows that
14 Dr. Simic was never present at the house with the swimming pool in Odzak.
15 In fact, in August 1992, Dr. Simic was wounded and medically treated, so
16 he was unable to be in two places at the same time.
17 Dr. Simic's testimony supported and corroborated by another
18 Defence witness, Savo Popovic, a member of the civilian council of
19 military administration in Odzak.
20 Savo Popovic testified that due to the lack of electricity and the
21 swimming pool was empty of water, that Dr. Simic in addition had never
22 been present near the pool or house in Odzak and that in any case, the
23 Samac municipal authorities had no influence on the work obligation that
24 was carried out in Odzak because it was in the hands of military
25 administration. The evidence presented by the Defence deeply undermines
1 testimonies of the said two Prosecution witnesses to whom therefore no
2 particular weight should be afforded.
3 And in addition, the Prosecution relies on the words of Witness K,
4 saying that Mr. Kapetanovic told her that her name had been selected by
5 the Crisis Staff computer. This is impossible in this time of war and we
6 have many testimonies that the Crisis Staff was not in possession of
8 On page 4626, Witness K testified with regard to the computer.
9 The summons I received had an illegible signature but when I spoke to
10 Mr. Kapetanovic he said that my name had been selected by the Crisis Staff
12 And then she went to say: "As far as I know, it was Mr. Milan
13 Simic who was in charge of the work assignments."
14 So there is not any relation -- there is not any word in the
15 testimony of Witness K relating to Dr. Simic.
16 And also Defence witness Simeon Simic stated on 13048-9 that there
17 was no computer in Crisis Staff.
18 With regard to the issuance of orders and policies and decisions
19 by Dr. Simic on the discriminatory basis, we addressed this particular
20 issue in numerous paragraphs in our brief, because this is core of defence
21 case. We are showing that, number 1, the decisions were not
22 discriminatory in the nature; number 2, the overwhelming defence evidence
23 with regard to the humanitarian activities and aid and work of Dr. Simic
24 and the other members of municipal authorities clearly shows that there is
25 not any basis to claim that Dr. Simic was a participant in some kind of
1 discriminatory process in Samac.
2 With regard to the paragraph 274 of Prosecution brief, we can say
3 that 17th of April indeed was designed as a Samac municipal holiday. But
4 there is no particular decision on that. It was adopted by the Municipal
5 Assembly on May 12, 1993, by majority of the Assemblymen votes and applied
6 only to part of Serbian municipality, whereas the Croatian part has their
7 own holidays.
8 Number 2: The Prosecution failed to produce any evidence to the
9 extent that Dr. Simic voted in favour or against these particular
10 [indiscernible], whether he was present at that session, and it is
11 absolutely unclear for the Defence what is the basis of the submission of
12 the Prosecution with regard to Dr. Simic with this particular issue.
13 And Madam President, Your Honours, this brings me to my third and
14 final chapter, final part of my argument, but before that, I also would
15 like to say that the Defence in the list that it was provided to Your
16 Honours with regard to the wanton and extensive plundering and looting of
17 non-Serb property as stated by the Prosecution address this issue in
18 numerous paragraphs, at least 30 paragraphs of our brief. So we clearly
19 explain that there was not any relation with Dr. Simic.
20 I will discuss the Prosecution key witness Mr. Todorovic, a man
21 who, by the Prosecution's own admission, has to be viewed with caution and
22 who Judge Hunt, and this is transcript 805-8, and then transcript 813-4,
23 foresaw the problems the Prosecution was creating by making a deal with
24 such an unsavory character, whereby in essence the Prosecution gave him a
25 licence to lie. Who is Mr. Todorovic? A self-proclaimed member of the
1 Crisis Staff, a wannabe, but not just any kind of wannabe. For the usual
2 wannabe's are those who have no power, who seek attention, who seek
3 affection, who seek to be important. No. Mr. Todorovic is a man of power
4 that comes not by virtue of the law but rather by the virtue of the gun.
5 By virtue of his connections in the underworld, the fringe elements, a man
6 who was able to use his authority and his position and the power that came
7 with it to commit acts of unspeakable evil. And as I have indicated
8 earlier, he was nothing than a warlord with his own little private army,
9 coming and going as it pleased, coming to meetings, invited or not,
10 displaying an aura of self-importance to act outside the law. Who among
11 us here would buy a used car from Mr. Todorovic based on his
12 representations of the quality of the car?
13 On direct examination, he says one thing and on a
14 cross-examination he contradicts himself. He makes claims that cannot be
15 substantiated and as I have indicated in order to get himself out of the
16 situation that he found himself in, he lied to Prosecution, to the
17 Prosecution, told them what he thought they wanted to hear. And of course
18 his deal with the Prosecution is contingent and allows him repeating his
19 lies. And so even if by some miracle his conscience was evacuant to the
20 point where he would want to speak the truth, to accept his full
21 responsibility, to explain his independent actions, if that were to occur,
22 he would not be able to do so because he would lose his deal with the
23 Prosecution. One could speak for hours about Mr. Todorovic, but there are
24 two points I would like to leave with this Trial Chamber.
25 Point number 1: And the Prosecution in so much admitted in their
1 opening statement that he's not credible, he's not reliable, he is not
2 trustworthy, he is not honest, and that anything he says must be viewed
3 with caution. Words of the Prosecution, transcript 940-42.
4 And point number 2: There was one instance in the trial when the
5 Prosecution did pose a question to him. I'm quoting the question of the
6 Prosecution. It's paragraph -- it's a transcript 9119. Question of the
7 Prosecution: "And you mentioned earlier in an answer that you just gave
8 that you occasionally had problems with the Crisis Staff and with the army
9 over releasing people. What sort of problem did you experience?"
10 Todorovic's answer was: "As far as I remember, I had problems
11 with members of the army, not the Crisis Staff, but on two or three
12 occasions with the army. And if need be, I can also explain these two or
13 three cases."
14 And what was the Prosecution's response when Mr. Todorovic said:
15 I can explain? The Prosecution at that point thought that Mr. Todorovic
16 just might have explained how the Crisis Staff and Dr. Simic had nothing
17 to do with what was going on and that it was the military that was causing
18 problems. But the Prosecution, ever so willing to assist the Trial
19 Chamber in knowing the truth, said, and I quote: "No, that won't be
20 necessary. That won't be necessary, Mr. Todorovic." This little example
21 speaks for itself. The Prosecution simply is disinterested in allowing
22 you to have all of the facts. Because if that were the case, then you
23 might conclude, as I suggest you should, that Dr. Simic in his individual
24 capacity as a speaker of the Crisis Staff or as a member of the Crisis
25 Staff was not in control, he had no authority, he had no effective power,
1 did not participate in any unlawful activities, and had no resources
2 available to contain either Mr. Todorovic, his associates, or anyone else
3 that was engaged in any criminal activity. Although, as I underscored
4 earlier in my brief, Dr. Simic did on several occasions notify the
5 appropriate authorities of the crimes being committed by certain
6 perpetrators in Bosanski Samac.
7 The third thing is, and I respectfully ask this Trial Chamber to
8 keep that in mind: That it is a fact that it has been well established
9 that Dr. Simic was not fond of Mr. Todorovic, that Mr. Todorovic certainly
10 was not fond of Dr. Simic, who, after all, opposed Mr. Todorovic's
11 nomination to his position of the chief of police, which occurred prior to
12 the formation of the Crisis Staff. And even prior to the events in
13 Bosanski Samac leading up to the indictment and events where Todorovic
14 found responsible. And then there is a question: Would someone like
15 Mr. Todorovic, whom we know and be cautioned by the Prosecution to view
16 with caution, would he have given his prior history with Dr. Simic, having
17 incentive to implicate, to embellish, and to lie about Dr. Simic,
18 especially if there is something to be gained, such as a deal from the
20 Madam President and Your Honours, with your indulgence, I would
21 like to sum up my oral submissions, and in doing so, I think it would be
22 only fitting to raise or to pose certain questions which we have yet to
23 hear from Prosecution, for, after all, they have the burden of proof.
24 They have to prove each and every element beyond a reasonable doubt, for
25 each count in the indictment. So I ask, number 1: When the Prosecution
1 gets up to do its rebuttal, perhaps they can explain how is it that
2 non-Serbs who were on their way to leaving Bosanski Samac decided to stay
3 and when they stay, nothing ever happened to them?
4 Number 2: How is it that Serb choose to leave Bosanski Samac?
5 Number 3: Was there a campaign to expel them, to persecute them,
6 to cleanse up area from them? Is that what it is? Perhaps they can give
7 us an explanation of that.
8 Number 4: How is it that non-Serbs continued to be employed in
9 various sectors in Bosanski Samac if the intent was to ethnically cleanse
10 and persecute? Why would they be kept in position where they could
11 utilise their skills and their talents and their knowledge? For instance,
12 the appointment of the Crisis Staff by Crisis Staff of Dr. Mesud Nogic, a
13 Muslim, respected doctor as a coordinator for the medical centre in
14 Samac? We have the evidence to that extent. Engagement of the non-Serb
15 firefighters, employment in municipal pharmacy, employment of great number
16 of non-Serbs in various public institutions and companies.
17 Number 5: How is it that the Prosecution maintains that Dr. Simic
18 could order or control or prevent Mr. Todorovic in his capacity as the
19 chief of police while at the same time the Prosecution itself deliberately
20 choose to dismiss any counts under Article 7(3) against Dr. Simic?
21 Number 6: How is it Dr. Simic was in pursuit of policy of
22 persecution that he provided medical service and in particular
23 chemodialysis on the non-discriminatory basis to whoever needed it?
24 Perhaps the Prosecution can explain this also. Perhaps the Prosecution
25 can explain how it's possible to persecute someone who has lived in his
1 own house before, during the war, and after the war, in particular, I'm
2 referring to the -- to 10.000 non-Serbs in the Domaljevac area.
3 Number 8: Perhaps the Prosecution can explain how is it that they
4 hold Dr. Simic responsible for military activities, including the exchange
5 of prisoners, when those functions were exclusively under the command and
6 control of the military and republican level? And of course as I noted
7 earlier, if that had been the case, how is it there are no charges under
9 Number 9: Perhaps the Prosecution can explain how is it that
10 Dr. Simic was engaged in persecution by issuing hundreds of orders for
11 betterment of the entire community, irrespective of their ethnic
12 background or religious belief? Is that a form of persecution?
13 I raise all these questions, Your Honours, because I dare say the
14 Prosecutors did not answer them throughout the proceedings. Certainly
15 provided no explanation in its written submission and it has omitted to
16 offer any credible argument in its oral submission. In short, the
17 Prosecution has failed to meet its burden of proof, and these questions
18 that I have just raised demonstrate the Prosecution's failure to establish
19 that Dr. Simic was engaged in any criminal activity that would justify the
20 charges in the indictment.
21 Your Honours, on behalf of Dr. Simic, I would like to thank you
22 for your attention. I would also like to thank you if any members of the
23 Chamber has any question you would like me to address. I'm here to
24 answer. Thank you.
25 [Trial Chamber confers]
1 JUDGE MUMBA: Thank you, Mr. Pantelic. We don't have any
2 questions at this stage.
3 Yes, Mr. Lukic.
4 MR. LUKIC: [Interpretation] An officially, good afternoon, Your
5 Honours. The Defence of Miroslav Tadic wishes to make its final arguments
6 in the following way: We do not wish to repeat things from our final
7 brief. We primarily wish to speak in view of the facts and whatever else
8 we read in the Prosecutor's brief, as well as what we heard from the
9 Prosecutor. Our concept of our closing argument will be as follows:
10 First I shall address the Trial Chamber with regard to general legal
11 allegations and issues, and then my colleague Mr. Krgovic will speak about
12 the actual charges of persecution that have to do with the forcible
13 takeover of power, illegal arrests, and inhumane treatment, since he
14 worked most actively on those parts of our final brief too.
15 After that, I shall speak about forced labour, deportation,
16 forcible expulsions, et cetera, within the charges of persecution, and
17 then I shall also be referring to the second and third counts in the
19 Finally, I will have a few words to say in view of the sentencing
20 recommendation made by the Prosecution.
21 At the very outset, I have to present clearly our position with
22 regard to the -- to our assessment of the final brief made by the
23 Prosecutor. The Prosecutor does not have a case against Miroslav Tadic.
24 In fact, the Prosecution did not have a case against Miroslav Tadic at the
25 beginning of this trial, and by the end of the trial, the case was
1 completely lost. The evidence that supported the Prosecution case, at the
2 end of the Prosecution case, in terms of the standard that is required on
3 the basis of Rule 98 bis, after the Defence case, when the trial was
4 coming to an end, they even lost the weight that mere indicia have. This
5 compelled the Prosecution to try to introduce new evidence even during the
6 case. Forgetting or disregarding the principle of reciprocal discovery,
7 the Prosecutors kept trying to bring in new evidence that was disclosed a
8 day or two before it was actually exhibited, although the Prosecution had
9 had these documents for years. They tried to introduce evidence yet again
10 that the Trial Chamber had already ruled on and rejected.
11 They were disarmed by their very own witnesses, who had not spoken
12 the truth, and this was proven during the Defence case for Miroslav
13 Tadic. They were not telling the truth in relation to my client.
14 As for the charges brought against Miroslav Tadic, now that the
15 trial has come to an end, the Prosecution had one last resort, and that is
16 a method called construction. They did so by taking sentences out of
17 context. In this procedure, the method was quite simple: To use big
18 words, to level serious accusations, to impose their own way of thinking
19 upon the Court by way of increasing discreditation. Because after all,
20 this brief is not written and closing arguments are not made in the
21 Prosecutor's view only for this Court but also for the general public, for
22 a public which, in the opinion of the Prosecution, wants to hear big words
23 in order to assist attaining the objective of the Tribunal, and that is,
24 reconciliation of the territory of the former Yugoslavia.
25 However, gentlemen of the Prosecution, the Tribunal does not have
1 to achieve this objective only through harsh sentences; it can also be
2 done through fair trials and through acquitting innocent individuals. And
3 I'm confident that that is what will restore confidence within the former
5 What this Defence finds encouraging is the fact that after all
6 everything that was written and everything that was said and presented
7 during this trial was done before Judges. The fact that this Honourable
8 Trial Chamber has comprehensive testimonies rather than extracts, they
9 have complete documents, and, as I am profoundly convinced after having
10 spent almost two years in this courtroom, they will look at all of this
11 evidence fully and from all sides.
12 I'm sure that these Honourable Judges did not miss a single
13 detail. They know that any judgement which is based on construction,
14 guesswork, speculation, histrionics is untenable.
15 At the very outset of their brief, the Prosecution said what this
16 trial was all about. However, the Prosecution omitted to say that this
17 was a trial that had to do with a war. This was a trial about life in a
18 town in abnormal conditions and all the consequences that are created by
19 these conditions. We are going to say a few words about that too.
20 This was a trial that had to do about the absurdity of everything
21 that war does to ordinary citizens. Yes. This was a trial about evil,
22 about fear, about suffering, and about pain, but it was also a trial about
23 aid, solidarity, faith, and sacrifice, and about humaneness too, a word
24 that the Prosecution has so scorned when they heard it from the lips of
25 Miroslav Tadic's witnesses. This is also something we're going to refer
1 to in our closing arguments.
2 In this trial, there was a lot of counting, additions,
3 subtraction, et cetera. We were all deeply moved by this, all of us here
4 in the courtroom, when numbers were referred to of persons killed, persons
5 who left, persons who moved in, persons who were exchanged, persons who
6 came back. We knew that after all we were talking about human beings,
7 about their individual fates, and everybody had a moving story to tell.
8 However, it is the Prosecution's numbers that gave rise to this
9 indictment, and they constitute its most important part and the Defence
10 has to speak about this.
11 The position of the Prosecutor is clear. I think that the
12 position of Miroslav Tadic is clear too. It has not changed from its very
13 first statement, and it has not changed from when we first started
14 challenging what the Prosecution witness said and when the Prosecution
15 gave their open statement.
16 I shall describe this in a few words. Miroslav Tadic did not
17 participate at all in political life in the municipality, either before
18 the war or during the war or after the war. Today we heard the Prosecutor
19 say that he was highly ideologically motivated. I really don't know how
20 the Prosecutor has inferred that. What he knew about politics was what an
21 ordinary citizen knows. The Prosecutor did not even deal with his
22 political positions before the war. Before the war, he was a person who
23 was well known among the citizens of Samac and he enjoyed a degree of
24 prominence. His appointment to the position of assistant commander for
25 logistics in the 4th Detachment and in the Crisis Staff are a result of
1 that prominence that he enjoyed and the fact that he was not compromised
2 in any quarters. His work in the civilian defence staff was anything but
3 what the Prosecutor has tried to misconstrue. Tadic did not take part in
4 any activities related to the takeover of vital facilities in town on the
5 16th and 17th of April.
6 The Prosecution has no evidence to that effect.
7 His work on exchanges is due to his origins and the fact that he
8 knew people on both sides, also that he had a strong wish to help
9 everyone. Miroslav Tadic claims that everything that was done concerning
10 exchanges by the Samac commission was all with a view to helping all
11 people who wanted to have their wishes carried out, either in terms of
12 coming back or going away.
13 I just wish to add a correction. The transcript does not reflect
14 that I did not -- that I said that there is no proof of anything that
15 Miroslav Tadic did in 1991. There is no evidence related to 1991.
16 The Defence claims that the work of that commission was in
17 accordance with the principles that were observed by international
18 organisations, primarily the ICRC, with regard to exchanges. Irrespective
19 of whether it was the only possible solution or a constant principle.
20 Except for less than three months, Tadic did not participate in any way in
21 any important government authorities in the municipality. He was not a
22 member of the War Presidency, he was not appointed president of the
23 commission for exchanges, but he was its member.
24 At the beginning of 1993, he was relieved of his duty as commander
25 of the civilian defence staff.
1 We are going to discuss all of that when we analyse the individual
2 counts of the indictment, and now I would just like to add a few words to
3 what my colleague Mr. Pantelic said with regard to joint criminal
5 I must say that although we were far away when writing our closing
6 arguments, I wrote mine in Belgrade and he wrote his in The Hague,
7 nevertheless, I must say that I fully subscribe to what Mr. Pantelic said
8 here during his closing arguments.
9 In the final brief, we already said what we believe is the case
10 with regard to joint criminal enterprise. It seems that the Prosecution
11 is aware of the fact that they did not think about this at the beginning
12 of the trial, and this theory of joint criminal enterprise came to rise in
13 other trials before this Tribunal.
14 However, the fact that during this trial they came up with the
15 idea to use this theory of joint criminal enterprise does not justify what
16 they did. They did not articulate this theory either in their pre-trial
17 brief or in their opening statement or in any of the amended indictments.
18 As Mr. Pantelic said, they did not state this in any one of the four or
19 rather five amended indictments. They waited for their case to come to an
20 end, and it is only then that when we acted in respect of Rule 98 bis,
21 asking for acquittal, then they chose to deal with this.
22 The Defence claims, and we wrote about this in our brief, that the
23 very words "working in concert together or with others" does not mean
24 anything but co-perpetration, and that would also be my response to
25 Judge Williams's question, the question put to Mr. Pantelic.
1 Co-perpetration is something, but joint criminal enterprise is a
2 completely different thing. The Prosecution amended their indictment
3 twice during the trial itself. After the appeal judgement was passed in
4 the Tadic case, as well as the Kvocka, Krnojelac, Krstic and Kordic
5 judgements, and they did not dare present a clear-cut indictment as they
6 waited for many witnesses to come and go.
7 The Prosecution waited for Stevan Todorovic to testify. They
8 thought that he was a key witness, but they did not articulate their
9 theory before this statement. For this Prosecution, Stevan Todorovic is a
10 key witness for joint criminal enterprise.
11 That is why in its final brief the Defence invoked judicial
12 practice, the rights of the accused from the Statute, and we said that
13 such a thesis should not be accepted because this would infringe upon one
14 of the fundamental rights to defence from Article 21 of the Statute. In
15 paragraph 725 of the Kupreskic indictment, says -- it is said that the
16 accused has to be informed of legal charges brought against an individual.
17 The Prosecution did not do this, consciously or unconsciously, as Pantelic
18 said, but perhaps this was done by omission too. However, that is
19 something that should not reflect upon the accused. The accused has to be
20 fully informed about the legal aspects of the charges brought against
22 However, in addition to these procedural objections, but we
23 consider them to be objections of substance as well, we are going to
24 present our arguments in view of the Prosecution's thesis that
25 Miroslav Tadic was a participant in joint criminal enterprise. The
1 Defence claims that Miroslav Tadic was not aware of any plan or policy to
2 persecute non-Serbs so as to ethnically cleanse or, rather, ethnically
3 delineate between the Serb people and other peoples. Not at a single
4 point in time did the accused come to realise that such a plan existed, if
5 it existed at all, that it was prepared, implemented, and therefore he
6 could not have taken part in the implementation of this plan. Since he
7 was not aware of this plan, he could not show any kind of voluntariness in
8 terms of supporting such a plan or actively participating in it.
9 The Prosecution has claimed that these plans were secret ones.
10 They are being related to structures of policy and government. Also the
11 Prosecution has relied on testimony of politicians and in the intelligence
12 community. Not a shred of evidence was presented with regard to
13 Miroslav Tadic's awareness of this plan. There is no immediate evidence
14 that he said that to someone or that somebody had told him that he had
15 heard about it or indirect evidence that somebody had heard about that for
16 him. Tadic was not in any political or party structures and he could not
17 therefore be related to this plan. He was not a member of the security
18 community or the intelligence community, and that is what the Prosecution
19 refers to when referring to this plan.
20 Mr. Pantelic mentioned a few minutes ago his own analysis of the
21 document related to the strategic interests of the Serb people. It is
22 questionable whether this is a discriminatory document, but obviously the
23 Prosecution finds it a very important document and relies on it in order
24 to talk about this kind of forced ethnic delineation.
25 At the beginning, Your Honours, when Mr. Donia testified we
1 insisted that this document fully be translated, precisely because of the
2 date of this document, when it was published in the Official Gazette.
3 Mr. Pantelic referred to it, so I'm not going to go back to that
4 particular matter.
5 The Prosecutor also refers to the statements of Marko Tubakovic
6 and his concept of ethnic cleansing and forcible departures. However,
7 this same Marko Tubakovic had the Prosecutor wanted to read his
8 cross-examination, said something that completely changes what the
9 Prosecution alleges. When the Defence attorneys presented to him the
10 procedures applied during exchanges and when he had previously stated that
11 he was never present, not during a single exchange, he agreed with the
12 fact that there was no coercion, as far as exchanges were concerned.
13 When awareness of a plan cannot be proven through direct
14 or -- direct evidence, then the Prosecutor cannot rely upon anything else
15 but providing a generalised analysis of evidence and also certain
16 allegations. Now, what is the Prosecution offering? The Prosecution
17 offers Tadic's vital role in the forcible takeover of government through
18 activities in the 4th Detachment, that he took part in the supervision of
19 arms collections, and that allegedly he was then in the company of
20 paramilitaries, volunteers, whoever. We know who they're referring to.
21 The handover of weapons was not carried out at all in the way in
22 which the Prosecution wishes to present this. All evidence has shown that
23 this was done in a way which the Prosecution does not find suitable.
24 There is another thing I wish to point out: Not then or later was Tadic
25 ever in the company of paramilitaries. However, if, according to the
1 Prosecution, this is an element upon which it bases his participation in
2 joint criminal enterprise, then the Prosecution is on thin ice in this
4 In addition to the arbitrary allegations made by certain witnesses
5 whose testimonies we have analysed in our brief, about Tadic's alleged
6 presence in the company of the paramilitaries on those days, the
7 Prosecutor forgets what was said about the relationship between Miroslav
8 Tadic and those Specials, paramilitaries, during this trial. I will,
9 however, have to remind the Prosecutor of that. Would anyone spend time
10 with the very same people who forced him to humiliate himself in his own
11 cafe by erasing Tito's name from the wall of an adjacent building? Would
12 anyone want to socialise with dubious characters who break into his flat
13 at night and force him to sign statements in Cyrillic?
14 Several days ago, or yesterday, the Prosecutor quoted Tadic
15 himself as saying to these characters: Do you know who I am? But the
16 Prosecutor refused to include in the quote the following sentence,
17 explaining why Tadic said that, and we don't know the answer that the
18 man -- but we don't know the answer that the man gave. The man said: "We
19 don't know who you are, but the one who has sent us knows." Now, did
20 these people simply back off or give up after Tadic said that? No. He
21 was forced to write the statement. He was searched for weapons. And
22 later, they were wondering why Tadic was still alive at all.
23 When Miroslav Tadic testified in February this year, he knew that
24 that man's name was Zvjezdan. Now he has also found out that the first
25 name is Zvjezdan and the last name is Jovanovic. He saw his photograph.
1 We have heard testimonies about the maltreatment he suffered at this hand
2 of Lugar, Laki, and Grof. I will remind the Prosecutor of the testimony
3 concerning Captain Jez, who refused to allow the Serbs having the last
4 name of Tadic to be exchanged. This is the very same Jez who was
5 mentioned as having very close ties to Stevan Todorovic. What was Tadic's
6 relationship with Stevan Todorovic, the man who arrested him? The man
7 Tadic reported to the relevant offices from the military commission after
8 the bloodbath, this man who was the Prosecutor's key witness, Todorovic,
9 before the exchange in 1993. Let us just think about Salkic, Grujicic,
10 and Maslic, and the documents testifying to that.
11 How can it be that, as the Prosecutor claims, that Tadic and
12 Todorovic socialised within this framework of a common joint enterprise
13 when Tadic had to take advantage of his absence to win Cancarevic's
14 approval to have Witness A exchanged? Who was it after all this evidence
15 that wanted to sell the witness, according to the one-to-100 principle,
16 and who was the man who finally had the man finally exchanged according to
17 the one-for-one principle? All the documents that we have testified to
18 the truthfulness of this.
19 The Prosecutor goes on to claim that Tadic participated in the
20 crucial early decisions of the Crisis Staff.
21 I will have to repeat this sentence, because I don't think the
22 transcript reflects accurately what I said.
23 How much exactly did Tadic and Todorovic cooperate and socialise
24 within the framework of this joint criminal enterprise according to the
25 allegations by the Prosecution, when my client, Miroslav Tadic, had to
1 take advantage of his absence in order to obtain Cancarevic's approval,
2 who was the chief of the police station, to have Witness A exchanged? And
3 who, after all this evidence, was the man who wanted to trade this witness
4 or sell him, according to the one-man-for-100-men principle, as Todorovic
5 speaks about, and who was the man who eventually exchanged him, according
6 to the one-man-for-one-man principle? I mean, all the witnesses that we
7 had that testified to this, this was in Lipovac in 1992, we have all the
8 lists related to that exchange, those who left and those who stayed.
9 The Prosecutor goes on to claim that Tadic took part in the
10 crucial early decisions of the Crisis Staff. The problem for the
11 Prosecution here is procedural. Miroslav Tadic was not charged with
12 participation in any discriminatory decisions. If that had been the
13 Prosecution's allegation, they would have had to indict him for it. It
14 would have had to be one of the charges. He was a member of the Crisis
15 Staff, but he is not specifically indicted for persecution, for this
16 particular act of persecution.
17 Blagoje Simic, on the other hand, is indicted, is charged with
18 that, in paragraph 13b. Stevan Todorovic too was charged with an act of
19 persecution, and he was found guilty, and the judgement clearly stated
20 that Stevan Todorovic was a member of the Crisis Staff, and Milan Simic
21 too was charged with this, in a different form, though, not that he was
22 making discriminatory decisions but rather he was carrying out
23 discriminatory decisions, and he also was alleged to have been a member of
24 the Crisis Staff.
25 Miroslav Tadic was a member of the Crisis Staff, but this
1 incrimination, which must be strictly specified, we know the appeals
2 judgement in the Kupreskic case and what it has to say about that. He has
3 simply not been charged with that. And we can't have the Prosecution now,
4 in their final argument, refer to something that our client has not been
5 charged with. The Court can only decide on the charges which are actually
6 in the indictment.
7 There is another part of that sentence, the sentence that the
8 Prosecution has referred to, indicating that the Prosecution finally
9 accepted something that I was expecting them, I must say, to refer to,
10 both in their final brief and in their closing arguments. The Prosecution
11 said Miroslav Tadic participated in the early and, as they say, decisive
12 or key decisions made by the Crisis Staff. I assume the Prosecution
13 finally adopted the position that Miroslav Tadic was merely a member of
14 the Crisis Staff, as the Defence has already claimed, in the period
15 between the 23rd of April and July, when the War Presidency was
17 Where did the Prosecutor claim that Tadic voluntarily and
18 consciously was a member of such a criminal enterprise? There was not a
19 single reference by the Prosecutor to that. Why, I'm asking myself. The
20 answer was clear: Because there was not a single proof that they had.
21 Just a brief conclusion, a couple of words along the same lines.
22 On the basis of everything that we set out in our final brief, as well as
23 the Prosecution's closing arguments and final brief, the Defence believes
24 that the Prosecution failed to specifically present our client Tadic with
25 the legal and factual allegations in connection with Tadic's participation
1 in the joint criminal enterprise. In this way, the right of the accused
2 to an appropriate defence was violated, which affected the Defence's
3 cross-examination of several witnesses and the presentation of our
4 evidence. On the other hand, they did not offer a single proof that
5 Miroslav Tadic was aware of the plan or any proof of the alleged common
6 goal which is required to prove the theory of the joint criminal
8 I will now pass to my colleague Mr. Krgovic. I would just like to
9 say several words about Mr. Pantelic's words relating to international
10 armed conflict and elements required for discrimination, that's forced
11 labour and deportation, as the elements required for those crimes.
12 MR. KRGOVIC: [Interpretation] Good afternoon, Your Honours. Good
13 afternoon to everyone in the courtroom.
14 The Defence shall now proceed to discuss the responsibility of
15 Miroslav Tadic as seen by the Prosecutor and the attitude of the Defence
16 as regards count 1 of the indictment, persecution and the forcible
17 takeover by the Serb forces in Samac municipality.
18 At the very outset, the Defence believes it's necessary to say
19 that we believe that the Prosecution has failed to prove beyond a
20 reasonable doubt that Miroslav Tadic participated in the forcible takeover
21 of power in Bosanski Samac municipality in April 1992. The Defence has
22 offered ample evidence showing the whereabouts of Miroslav Tadic during
23 the days preceding and following April 1992 and what his activities were.
24 We address this issue in our final brief. However, we want to point out
25 once again that the Prosecution has failed to offer a single proof
1 indicating Miroslav Tadic's participation in the preparations for the
2 forcible takeover or his participation in the planning or any other
3 activity which followed from that.
4 The only thing that seems clear from the Prosecutor's final brief
5 as to their view of the role of Miroslav Tadic in the preparations for the
6 forcible takeover, the Prosecution addresses this in paragraph 109 of
7 their final brief when they talk about the meeting that was held in the
8 village of Struke, and Miroslav Tadic's presence at that meeting. They
9 refer to the testimony of Witness Blaz Paradzik, which, in our view and
10 the view of the Defence, is illogical and unconvincing, especially where
11 he claims that the meeting was held on the 29th of February, 1992.
12 Witness Paradzik claims that the meeting was held in the early morning
13 hours on the 29th of February, 1992, between 11.00 and 12.00 in the
14 morning. On the 29th of February, the inaugural session or founding
15 assembly of the Serbian municipality of Samac in Pelagicevo was held in
16 the village of Obudovac, which is about 40 kilometres from the village of
18 So why would Blagoje Simic attend an insignificant meeting in the
19 village of Struke, where purely local problems were discussed, on the same
20 day when a very important meeting was held, which the Prosecution has
21 agreed with. And during the time that the Serbian assembly was in session
22 for one whole day. Why would Blagoje Simic have come to that meeting at
23 that time? The session of the Serbian assembly of Samac should then have
24 begun at 7.00 in the morning and should have taken one or two hours, at
25 most, for him to be able to make it to the other meeting. And along the
1 road, so to speak, to meet Rajko Djuric and Miroslav Tadic from Samac and
2 bring them with him to that meeting. With all due respect, this is simply
4 During the Defence case, witness Mitar Nijemcevic was heard, which
5 Mr. Pantelic spoke about today. We're talking about depositions 403 to
6 401. Unlike witness Paradzik, witness Nijemcevic dated this meeting to
7 mid-March, when the meeting was held. He remembered every single detail,
8 the names of the persons present, the subjects discussed by each of the
9 participants and where each of the individual participants were actually
11 Allow me please to refer to the page numbers, the page numbers are
12 403 through 421.
13 Witness Nijemcevic was very cogent, convincing, and logical, and
14 he dated this event to back in mid-March 1992, the day when the Serb women
15 and children left the village of Struke, which sounds convincing, very
16 convincing, and it makes his whole testimony credible, because it makes
17 the time frame given, the time frame related to the women and children
18 leaving the village of Struke, credible. Unlike Nijemcevic, Blaz Paradzik
19 failed to remember a whole lot of details. He did not know -- he did not
20 remember where the meeting was held or who was present. Blaz Paradzik
21 gave statements to the OTP's investigators before he appeared before this
22 Trial Chamber. He was cross-examined by Mr. Tadic's Defence. During this
23 cross-examination, he was asked why in his previous statement he had never
24 referred to the presence of Miroslav Tadic there, and then Blaz Paradzik
25 lied, that he had referred to Mr. Tadic's presence but obviously the
1 unconscientious investigators of the OTP failed to record that statement.
2 This is on page 8249 of the transcript.
3 In their final brief, the Prosecution claims that Blaz Paradzik's
4 statement was not challenged during cross-examination, which is simply not
5 true. What I just talked about clearly shows that Blaz Paradzik was
6 thoroughly cross-examined and that that particular portion of his
7 testimony was indeed challenged.
8 If the Prosecutor wished to place Miroslav Tadic in the context of
9 planning of forcible takeover, why upon cross-examination did they not ask
10 him a single question related to his presence at Nijemcevic's house? Why
11 did they not check Paradzik's and Nijemcevic's testimonies, both of whom
12 testified before Tadic, and asked these questions? Their reference to
13 witness Blaz Paradzik as their only means of support for that particular
14 statement is very flimsy basis for the allegation that Miroslav Tadic had
15 any participation or awareness of the existence of a plan for a forcible
17 The meeting in the village of Struke is simply not as important as
18 Paradzik tried to show. This is absolutely clear, because all Prosecution
19 witnesses who described pre-war meetings failed to mention this particular
20 meeting. This clearly points to the fact that this was a total
21 insignificant, local meeting in a remote village, at which Tadic and Simic
22 happened to be at the same time.
23 Furthermore --
24 Let me just make a correction for the sake of the transcript. I
25 said which happened at different times, page 129, line 7.
1 Furthermore, the Prosecution attaches great importance to the
2 collection of illegal weapons which was carried out on the 18th of April,
3 1992 by members of the 4th Detachment. Many witnesses have addressed this
4 issue, as has the Defence, in our final brief. But we would like to
5 address the claims made in paragraph 125 by the Prosecution in their final
6 brief. They have made an enormous effort to make credible the testimony
7 of Witness Esad Dagovic, especially as regards footnote 193, referring to
8 his testimony.
9 I will address Esad Dagovic's testimony, although we have
10 discussed this in our final brief; the Trial Chamber has heard this
11 testimony several times. In our submission, Your Honours, the only thing
12 that was truthful that the witness actually said before the Court was
13 maybe his first name, the last name, and the date of his birth. His
14 testimony begins with a description of his own financial assets which he
15 also referred to in his statement to the Prosecution, his fabulous riches,
16 which can only be expressed in millions.
17 The Prosecutor realised how unconvincing this was and they made
18 corrections during the witness's examination-in-chief and then a
19 photograph of his house was shown as the witness was talking about his
20 considerable assets, the land he owned, the gold he owned, and then going
21 on to describe Radovan Karadzic's and Vojislav Seselj's visit to Bosanski
22 Samac. We have not heard a single witness testify to this effect. And
23 then eventually the story that the Serbs bombarded the centre of Samac
24 themselves. It is simply all false and untruthful.
25 The Prosecution tries to take part of his statement out of the
1 context. The defendant Simo Zaric suggesting it to the witness, putting
2 it to the witness that he had several different types of armoured vehicles
3 mixed up, the BOV and the tank whereas the witness was clear in statement
4 he could distinguish between a Praga, a BOV, and a tank and that the
5 distinction for him was crystal clear. The witness was cross-examined by
6 the Defence and to a large extent his testimony proved false and his
7 credibility was ruined.
8 However, the Prosecution exhibited photographs along with a
9 statement made by witness Richard Phillips, according to Rule 92 bis and
10 to cover for the lies uttered by this witness in this way. The Prosecutor
11 says in his final brief that these photographs show how a lay witness can
12 easily confuse types of combat armoured vehicles, armoured vehicles,
13 rather. However, witness Esad Dagovic clearly distinguished between
14 different kinds of armoured vehicles and he did distinguish between
15 Pragas, ACV, and tanks respectively. He showed an amazing knowledge
16 concerning artillery weapons, especially multiple rocket launchers.
17 Witness Esad Dagovic did his military service, has this knowledge, and I
18 can say that he was showing off his knowledge here. I can certainly say
19 that he was not a layman. Witness Esad Dagovic is not a layman; he is,
20 quite simply, a liar.
21 The allegation made by the Prosecution in their final brief that
22 the alleged testimony of Miroslav Tadic is opposite to the testimonies
23 made by Radovan Antic, Jovo Savic, Stevan Nikolic, Simo Zaric --
24 I beg your pardon. The transcript did not reflect a sentence of
25 mine when I said that Esad Dagovic is not a layman; he is, quite simply, a
1 liar. That's what I said, and I would like the transcript to reflect
3 Also, in paragraph 126, the Prosecution refers to the
4 contradictory nature of Miroslav Tadic's statements, as well as statements
5 made by members of the command of the 4th Detachment and Lieutenant
6 Colonel Nikolic. However, invoking contradiction is just wishful thinking
7 on the part of the Prosecution. The Defence does not see any
8 contradictory factors between the testimony of Miroslav Tadic and the
9 statements made by those witnesses.
10 Your Honours, I believe that it is time for the adjournment now.
11 JUDGE MUMBA: Yes. We've come to the end of our afternoon
12 session. We'll continue tomorrow morning.
13 --- Whereupon the hearing adjourned at 3.45 p.m.,
14 to be reconvened on Wednesday, the 2nd day of July,
15 2003, at 9.00 a.m.