1 Tuesday, 1 October 2002
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 10.04 a.m.
5 JUDGE SCHOMBURG: Good morning. Please be seated.
6 May we first hear the case, please.
7 THE REGISTRAR: Good morning. This is Case Number IT-97-24-T, the
8 Prosecutor versus Milomir Stakic.
9 JUDGE SCHOMBURG: The appearances, please, for the Prosecution.
10 MS. KORNER: Your Honour, Joanna Korner, Nicholas Koumjian,
11 Ann Sutherland assisted by Lise-Lotte Karlsson, case manager. Good
12 morning, Your Honours.
13 JUDGE SCHOMBURG: Thank you. Good morning.
14 MR. LUKIC: Good morning, Your Honours. Branko Lukic,
15 John Ostojic, and Danilo Cirkovic for the Defence.
16 JUDGE SCHOMBURG: Good morning.
17 We can read on the scheduling order for today the word
18 "deliberation." This is not foreseen in the rules, but nevertheless, it
19 emanates from the duty of the Chamber to hear the parties, and especially
20 to grant the right to be heard for the Prosecutor in case the Chamber
21 believes that it might come to the conclusion that an acquittal in part is
22 the correct reaction. And therefore, in order to address these issues and
23 to give the parties the possibilities to give oral submissions, also on
24 legal issues or on factual issues, and to streamline the case and to
25 concentrate on the core issues, this was the first intention when we
1 decided to have this meeting on deliberations today.
2 Unfortunately, the situation has slightly changed with a view to
3 the development in the last weeks. You know that we have to be aware that
4 it might be that in the next -- in the near future, the Trial Chamber can
5 no longer act in the same composition as it is now. Therefore, let me
6 please, and it has also for the transcript, to be stated that this
7 question was discussed in the framework of a 65 ter (I) meeting last week,
8 how to proceed in the case. And if the situation arises that, as it is
9 stated -- as you can read it in Rule 15 bis (C),
10 "If a Judge is, for any reason, unable to continue sitting in a
11 part-heard case for a period which is likely to be longer than of a short
12 duration, the Presiding Judge shall report to the President who may assign
13 another Judge to the case and order either a rehearing or continuation of
14 the proceedings from that point. However, after the opening statements
15 provided for in Rule 84, or the beginning of the presentation of evidence
16 pursuant to Rule 85, the continuation of the proceedings can only be
17 ordered with the consent of the accused."
18 As mentioned before, the Defence has had the possibility to
19 discuss this issue before the last 65 ter (I) meeting with the client, and
20 at the same time they asked for an additional period of time to discuss
21 this issue with the client this morning.
22 Dr. Stakic, may I ask you, are you prepared by way of precaution
23 that in case a judge in this Chamber, to be concrete, Judge Fassi Fihri,
24 would or will be unable to continue sitting in this part-heard case, to
25 express your unconditioned and irrevocable consent to continue with the
2 First of all, did you understand what is the meaning, and did you
3 have the opportunity to discuss this with your Defence team?
4 THE ACCUSED: [Interpretation] Good morning, Your Honours. Yes, I
5 have understood your question, and I have had an opportunity immediately
6 before the beginning of this hearing to talk to my Defence counsel.
7 JUDGE SCHOMBURG: Am I wrong that this question was already
8 beforehand, and not only immediately before the beginning of this hearing
9 was discussed with your Defence counsel?
10 THE ACCUSED: [Interpretation] In connection with the possible
11 appointment of a new judge, you mean?
12 JUDGE SCHOMBURG: Yes.
13 THE ACCUSED: [Interpretation] Yes, we did talk about it.
14 JUDGE SCHOMBURG: So you are aware of the meaning and the
15 importance of your own decision, and you have no doubts. And if you
16 should have some doubts, and there are remaining questions, this would be
17 the opportunity now to address these questions. Are there any questions?
18 THE ACCUSED: [Interpretation] Your Honour, in order to expedite
19 the proceedings and bring the trial to a speedy end, and also in order to
20 favour the witnesses who have already appeared here in court, as well as
21 those who were in any way victims of the war, also taking into account the
22 possible extra expenses, I give my full consent for a new judge to be
23 appointed in order not to have to restart the whole trial.
24 JUDGE SCHOMBURG: Thank you, Dr. Stakic. You may be seated.
25 THE ACCUSED: [Interpretation] If I could only ask, Your Honour,
1 just another thing.
2 JUDGE SCHOMBURG: Please.
3 THE ACCUSED: [Interpretation] I would like to kindly ask Your
4 Honour to allow the Defence perhaps between 10 and 15 days more to
5 prepare, and maybe such a period would also be beneficial for the new
6 judge to get better acquainted with this case.
7 JUDGE SCHOMBURG: Thank you. The question of this issue was
8 already addressed by your Defence counsel, and we'll come back to this
9 later. Let us first proceed step by step, and then see what is really
10 necessary, what are the remaining issues. Thank you.
11 Then this brings me to the next point, and after discussion of the
12 Bench during the last four days, I think it's fair, and it is a must, to
13 inform the parties that in this composition, only one decision will be
14 possible: Either to hand down a decision under 98 bis, or in case there
15 should be a long envisaged agreement among the parties foreseen in the
16 rules as plea bargaining, then there would be a possibility to hand down
17 on the basis of a sentencing hearing the final judgement. But it's really
18 either/or, and it is also only fair to state that there is no remaining
19 time for further discussions. As we said it in the 65 ter meeting, the
20 only appropriate time and the deadline would be today because then the
21 entire procedure, either on 98 bis or a probable sentencing preparation,
22 has to be started. We can't wait any longer.
23 This Trial Chamber, and the three of us, unanimously agreed: Any
24 kind of agreement can be accepted by this Trial Chamber no later than by
25 the end of this day. No doubt, when there in future might be another
1 composition of this Trial Chamber, there might be the possibility of an
2 agreement. But also the parties should know that the mitigating factor of
3 such an agreement decreases day by day and week by week. And the
4 additional value, especially for an accused, is extremely limited when
5 such an agreement is reached only at the end of the case.
6 These are the first two preliminary remarks. First, the first
7 intention is to discuss issues under 98 bis. And in this context, also
8 one clarification is necessary: In some jurisdictions, we have a clear
9 distinction between the Prosecutor's case and then the Defence case. To
10 that end, that after the end of the Prosecution's case, the situation of
11 the accused can no longer be worsened. But as we have a mixture of the
12 both predominant legal systems, it reads, especially in Rule 85(A) that
14 "Evidence at the trial shall be presented in the following
15 sequence: evidence for the Prosecution; evidence for the Defence;
16 Prosecution evidence in rebuttal; Defence evidence in rejoinder; and then
17 finally evidence ordered by the Trial Chamber pursuant to Rule 98."
18 This means de facto that in case additional evidence is available,
19 be it in favour or not in favour, or even against the interest of the
20 accused, this additional evidence can be ordered by the Trial Chamber.
21 This might emanate from other cases or from a perusal or that what we have
22 heard until now.
23 This makes it more difficult for the Chamber to decide on 98 bis
24 issues because we also have to take into account the likelihood of whether
25 or not additional material can be obtained.
1 The third point is the following -- and here, I informed already
2 the parties because I thought it would be necessary. When discussing the
3 test to be applied, some weeks if not months ago the Chamber cautioned the
4 parties that they shouldn't rely on the jurisprudence, especially
5 expressed in the Djeric Appeals Chamber judgement, saying that the test to
6 apply is whether or not a reasonable trier of fact could come to the
7 conclusion, could be satisfied beyond reasonable doubt of the guilt of the
8 accused based on what was heard during the Prosecutor's case.
9 We initially discussed the question whether or not the approach
10 represented in this issue, in an additional opinion by Judge Pocar, would
11 be the correct one, this is whether or not this concrete Trial Chamber
12 could be satisfied beyond reasonable doubt. But it follows from that what
13 we heard in the beginning as to the fact that this Chamber might, if
14 necessary, have to continue in another composition, in this case, no
15 doubt, the test can only be the one held in majority in Jelisic, that a
16 reasonable trier of fact could come to such a conclusion.
17 So, what is the purpose, the remaining purpose now? As I said, we
18 have to find out, and we discussed the Prosecutor's case already under
19 this heading, whether a reasonable trier of fact could be satisfied beyond
20 reasonable doubt of the guilt of the accused at this point in time. The
21 word "could" the most important in this context.
22 Now, 98 bis does not only provide for a motion on acquittal of an
23 accused, but it's also possible and foreseen under Rule 98 bis (B) that a
24 Trial Chamber proprio motu or ex officio may enter a judgement of
25 acquittal if it finds that the evidence is insufficient to sustain a
1 conviction on that or those charges. Therefore, it is necessary to point
2 out whether the Chamber tends, in part, to an acquittal; second, to
3 address reasonable doubts that might easily be spelled by comments and
4 arguments of the Prosecutor. And under the special circumstances of this
5 case, I think it's only fair to give also hints in the direction of the
6 Defence to indicate what is this provisional status of the case as of
7 today seen with the eyes of the Judges sitting on this case today.
8 This concludes the preliminary remarks. May I ask: Are there any
9 questions to these provisional remarks?
10 MS. KORNER: Your Honour, I'm afraid I'm not entirely clear. Is
11 Your Honour saying that today is the last day on which there could be
12 consideration of Rule 98 submissions? In other words, written
13 submissions -- the timetable for which Your Honour has given will no
14 longer apply?
15 JUDGE SCHOMBURG: No, this would be a misunderstanding. Because
16 as for the motion, if not decided otherwise on the basis of the request
17 expressed by Dr. Stakic in person this morning, no doubt the schedule
18 remains unchanged. Today is only the possibility for the Chamber to
19 express their views and their point under the heading "right to be heard"
20 to the Prosecutor where we either have reasonable doubts or even a
21 tendency to come to an acquittal. It's only from our side. This part,
22 the second part of Rule 98 bis (B) will be addressed during this hearing
23 this morning.
24 MS. KORNER: I'm sorry, it probably is my fault, Your Honour.
25 What Your Honour is saying is that today is the day for, as Your Honour
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 expressed it, deliberations I suppose. But thereafter, the Trial Chamber
2 will still remain of the composition to make a ruling at the end of the
3 written submissions?
4 JUDGE SCHOMBURG: As I said earlier, there are only two options
5 remaining: Either to proceed under the Rule 98 bis proceedings as
6 envisaged in the scheduling order or, as we discussed during the 65 ter
7 meeting, if the parties so want, today would be the last possible day to
8 try to come to an agreement, once again, under the heading "plea
9 bargaining" as foreseen under the rules.
10 MS. KORNER: Yes.
11 JUDGE SCHOMBURG: These are the options, either/or.
12 MS. KORNER: Yes, thank you, Your Honour. Sorry, it was my
13 misunderstanding. I thought that the Trial Chamber would not be of the
14 same composition after today, but that's not right.
15 JUDGE SCHOMBURG: No. May I ask the Defence?
16 MR. LUKIC: We don't have any questions, Your Honours.
17 JUDGE SCHOMBURG: Thank you.
18 Then, let's come immediately to the core questions. Let's go in
19 medias res. And no doubt, the question of genocide is one of the core
20 questions of this case.
21 The accused is charged with having committed genocide or,
22 alternatively, complicity in genocide. On the basis of the evidence
23 provided until now, there is no reasonable doubt that as regards the
24 objective criteria, genocide has been committed in the entire area, but
25 especially, the substance matter of this case, in the municipality of
2 The main question is whether or not the accused, Dr. Stakic, had
3 the necessary intent to commit this crime. And here, to be quite
4 concrete, the Trial Chamber does not believe that the necessary evidence
5 has been provided to prove this intent or dolus specialis, as it was
6 called in some earlier decisions. We shouldn't go into some details of
7 the definition of what it is, but post, for example, to the dolus
8 evetualis or the dolus directis of first degree, dolus directis of second
9 degree. But the intent -- we are on the basis of what we have heard until
10 now, the intent was not to commit genocide. It was in another direction,
11 more or less. I come back to this later.
12 But we are faced with the additional charge: Complicity in
13 genocide. And here already it is more difficult. Because we don't
14 believe that we have already a settled -- finally settled jurisprudence
15 about the mens rea element as regards complicity in genocide. To go
16 already one step further at this point in time, it appears to be, from a
17 systematical point of view, difficult to find out what the authors of our
18 statute had in mind when, in Article 4, describing what acts shall be
19 punishable, Article 4(3). There it reads: The following acts shall be
20 punishable: Genocide, conspiracy to commit genocide, direct and public
21 incitement to commit genocide, attempt to commit genocide, or complicity
22 in genocide.
23 You read in the indictment, and this follows the earlier forms of
24 the indictment, and also that what you can read in earlier judgements,
25 that at the same time, it is alleged that this was committed under the
1 individual criminal responsibility, Article 7, paragraph 1, where it
2 states that, "A person who planned, instigated, ordered, committed or
3 otherwise aided and abetted in the planning, preparation, or execution of
4 a crime referred to in Articles 2 to 5 - we'll say including Article 4 -
5 of the present statute shall be individually responsible for the crime."
6 The question is now, what had the authors of this article in mind
7 when stating "complicity in genocide"? Is it as it is in the normal scope
8 of the definition of the word "complicity" restricted to the
9 coperpetrator, to the accomplice of a crime, or as it was held, for
10 example, in Akayesu, that the aiding and abetting, for example, should --
11 and the Article 7, should be read into Article 4, paragraph 3 (E). This
12 question still is open.
13 And then the question brings us, and at this point in time, in
14 fact, we can leave it open because it's the position of this Trial Chamber
15 that there might be enough evidence for aiding and abetting to genocide.
16 And then once again the question is what is the necessary mens rea as
17 regards this? And once again, it can be left open whether the decision
18 especially in Akayesu, paragraphs 440 to -- 540 to 547 is the correct
20 Finally, we believe that the mens rea for aiding and abetting, be
21 it only under 7(1) or 7(3) to be read into Article 4, paragraph 3(E). The
22 mens rea for this aiding and abetting would be the knowledge, the taking
23 into account and accepting the results and the outcome, knowing about all
24 the elements of crime of genocide, including the intent of superiors or
25 other persons. And here, indeed, we believe that be it now complicity by
1 knowingly aiding and abetting, sufficient evidence has been provided in
2 principle. We are open for all arguments, no doubt, but the purpose of
3 these deliberations is to invite the parties to discuss these issues.
4 So in conclusion, there is a tendency to acquit as regards
5 genocide as such, but not as regards aiding and abetting to genocide.
6 Before coming to other charges, are there any questions by the
7 parties as regards the question of genocide?
8 MS. KORNER: No, thank you, Your Honour.
9 MR. OSTOJIC: Good morning, Your Honour. With respect to the
10 Court's analysis, the Defence certainly - and I'm not sure if this is the
11 appropriate time - takes exception to it. If the Court permits, we would
12 like to discuss the issue of aiding and abetting and also the issue of the
13 necessary requirement of mens rea which is incorporated both in the
14 count 1 of the fourth amended indictment under genocide as well as count 2
15 under complicity of genocide. Or if the Court would prefer, at the end of
16 Your Honours' deliberations, we can address those issues, or we could
17 address them piecemeal.
18 JUDGE SCHOMBURG: I think it can be addressed at the end of
19 today's hearings. And probably, it's better to have it in the context, or
20 far better, no doubt, in writing because here we have to go into details,
21 and the purpose of this provisional analysis is only to express our doubts
22 and to express where we see the problems. And at the same time express
23 the direction what we believe has been covered by the evidence provided
24 until now.
25 So either at the end of the deliberations of today or, far better,
1 in writing.
2 MR. OSTOJIC: Thank you.
3 JUDGE SCHOMBURG: Before we go into the details of the indictment
4 as regards the other charges and concrete incidents, I want to be aware
5 that I don't know whether this ever was signed.
6 May I ask you, Ms. Korner, I have a draft before me only
7 "Prosecution Notice of the Specific Allegations from the Fourth Amended
8 Indictment which are Conceded as not Proven."
9 MS. KORNER: Your Honour, it was signed and filed yesterday,
10 sometime during the morning.
11 JUDGE SCHOMBURG: Defence has this document? Fine. Then we are
12 all on the same level.
13 And in addition, that I don't forget this at the end of the day,
14 may I ask the legal officer to distribute what we have prepared on the
15 basis of our compilations. This is two lists. May I ask, could you
16 please give me one copy of each.
17 On the basis of our compilations and with all the necessary
18 reservations that we all are human beings and might have committed the one
19 or other mistake, we have compiled, one, on the basis of the fourth
20 amended indictment a victim list, the annex to this indictment, a list
21 indicating that the Trial Chamber may come to the conclusion that there is
22 insufficient evidence as regards the names that are not highlighted.
23 We'll say that we believe there is not sufficient evidence as regards the
24 names list there had and not highlighted. But at the same time, we have a
25 second list of victims of killings identified by witnesses, but not
1 included in the indictment. And it's for the Office of the Prosecutor to
2 react or not react on these both lists.
3 May they please be distributed to the parties. And just for
4 identification, that we can later come back to this, may I have the next J
5 numbers available.
6 THE REGISTRAR: J19, Your Honour.
7 JUDGE SCHOMBURG: Then the fourth amended indictment list will be
8 J19, and the list of victims identified by witnesses but not in the
9 indictment will be J20.
10 Let me now turn to one chapeau question, and this is the question
11 on the relationship, but not only the relationship between 7(1) and 7(3).
12 I think as regards this relationship, we have sufficient jurisprudence,
13 and we shouldn't go into details. But as regards 7(3), we have to express
14 some doubts whether under 7(3) enough evidence has been provided. Opposed
15 to 7(1), Article 7 states that: "The fact that any of the acts referred
16 to in Articles 2 to 5 of the present statute was committed by a
17 subordinate does not relieve the superior of criminal responsibility if he
18 knew or had reason to know that the subordinate was about to commit such
19 acts or had done so and the superior failed to take the necessary and
20 reasonable measures to prevent such acts or to punish the perpetrators
22 At first glance, it seems to be surprising that we don't address
23 7(1) saying that there can be reasonable doubts, but 7(3). This is
24 related to the fact that it clearly states and makes reference to a
25 subordinate. And I think we have a lot of material here available, and
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13 English transcripts.
1 the parties are invited to give additional authorities or jurisprudence to
2 that end. But I think it starts with the Celebici judgement, stating in
3 paragraph 378 that it is "necessary that the superior have effective
4 control over the persons committing the underlying violations of
5 international humanitarian law in the sense of having the material ability
6 to prevent and punish the commission of these offences with the caveat
7 that such authority can have a de facto as well as a de jure character.
8 The Trial Chamber, accordingly, shares the view expressed by the
9 International Law Commission that the doctrine of superior responsibility
10 extends to civilian superiors only to the extent that they exercise a
11 degree of control over their subordinates which is similar to that of
12 military commanders."
13 To a certain extent, in Aleksovski judgement, the Judges came to a
14 slightly different definition. They state: "A civilian must be
15 characterised as a superior pursuant to Article 7(3) if he has the ability
16 de jure or de facto to issue orders to prevent an offense and to sanction
17 the perpetrators thereof. A civilian sanction power must however be
18 interpreted broadly. It cannot be expected that a civilian authority will
19 have disciplinary power over his subordinate or equivalent to that of the
20 military authorities in an analogous command position." No doubt, there
21 is a discrepancy between these two definitions.
22 But they continue in the same paragraph, 78: "The Trial Chamber,
23 therefore, considers that the superior's ability de jure or de facto to
24 impose sanctions is not essential. The possibility of transmitting
25 reports to the appropriate authorities suffices once the civilian
1 authority, through its position in the hierarchy, is expected to report
2 whenever crimes are committed and that in the light of his position, the
3 likelihood that those reports will trigger an investigation or initiate
4 disciplinary or even criminal measures is extant."
5 We doubt that also under these conditions, evidence has been given
6 to satisfy us to that extent. And finally, we have to come back to the
7 most recent judgement, that is Kordic. Paragraph 416 where it states:
8 "In some, only those superiors, either de jure or de facto, military or
9 civilian, who are clearly part of a chain of command, either directly or
10 indirectly, with the actual power to control or punish the acts of
11 subordinates may incur criminal responsibility."
12 So in some, we believe the questions whether there is a
13 coordination, whether there's cooperation, is not the right test; the test
14 is whether there was a system of subordination with the consequences just
15 quoted from former judgements. So we have to make a distinction. First,
16 has Dr. Stakic really had such a position of superiority? Had he the
17 possibility to do that what was from different point of views envisaged in
18 former judgements? Or - we also discussed this approach - did the Crisis
19 Staff, as such, as a whole had this superior role? But then we have the
20 question whether or not an individual member of the Crisis Staff can be
21 held responsible because we should bear in mind that Article 7 has a
22 headline "individual criminal responsibility."
23 The question has often been discussed in literature, in
24 jurisprudence whether or not a group can be held responsible, and it's
25 very -- also very specific jurisprudence on the question, for example,
1 whether a court, a Chamber, or a judge, here there are more than one
2 Judges, whether such a group of Judges even can be held responsible for,
3 say, illegal decisions. So this is one crucial aspect.
4 As regards Dr. Stakic himself, we don't believe that sufficient
5 evidence has been presented that he was able, either as it was said in the
6 one decision, to report with the likelihood of sufficient reaction, or to
7 order, say, in the direction of the police or the military forces.
8 As I said, this is a provisional analysis, and we invite the
9 parties to discuss these questions.
10 In addition, we came to the conclusion that when in the indictment
11 it states or it is alleged that Dr. Stakic - and this is true for all
12 charges - is alleged with incitement or instigation, no sufficient
13 evidence seems to be available for this part of the charge. But then we
14 have to go now to the charges as such. And I will follow in the order of
15 the fourth amended indictment.
16 In paragraph 40, we can read that, Dr. Stakic allegedly planned
17 and instigated, and then in the planning and preparation or execution of a
18 campaign and so on. Also here, we believe that there isn't sufficient
19 evidence as to the element of crime "planned and instigated."
20 Different from this, in paragraph 42, we don't believe that there
21 is sufficient evidence for the instigation to exterminate members of the
22 Bosnian Muslim and Bosnian Croat population in the Prijedor Municipality.
23 And we have to give the hint, and no doubt, it's settled jurisprudence,
24 that if the Trial Chamber would come to the conclusion that a reasonable
25 trier of fact could come to this conclusion, that Dr. Stakic committed
1 such a crime of extermination, then the planning of this would be the
2 included preparation to committing the crime. But we regard it as
3 necessary to concentrate on these alternatives and to concentrate on
4 really applicable alternatives because it's necessary for the preparation
5 of the Defence to know concretely what they have to contest and how they
6 have to establish their case.
7 Turning to paragraph 44, killings, the Prosecution has already
8 withdrawn number 4. As regards number 7, the killing of a number of
9 people in the village of Brisevo on or about 24 July, 1992, it might be
10 difficult to come to the necessary conclusions based on Witness M's
11 testimony only. But here we are open for additional remarks and hints to
12 corroborating evidence.
13 The same holds true for paragraph 46, number 1. As regards the
14 qualification of the Prijedor JNA barracks as a camp, it might be doubtful
15 on the basis of -- to come to this conclusion, on the basis of the
16 testimony of Witness T only. And let me take this point in time to
17 address Dr. Stakic himself.
18 From the point of view of an accused, these going into details may
19 sound strange. You are the only one in the courtroom who, to a certain
20 extent, knows and knew what really happened. But in a criminal case, we
21 have to rely on evidence provided, and there must be, and there may be, a
22 discrepancy between that what we are discussing here and that what you
23 believe as being the truth from your point of view. So we only can
24 express on the -- give our assessment on the basis of the evidence we have
25 at hand.
1 As regards paragraph 47, we wonder if you really have sufficient
2 evidence whether the killing -- for the killing of approximately 50 men
3 and women taken on a bus from Omarska camp in late July 1992, at least
4 some of whose remains were exhumed from Jama Lisac Bosanska Krupa
6 As regards paragraph 49, the second paragraph there, it reads in
7 the middle "prominent and educated Bosnian Muslims were subjected to
8 severe beatings and humiliation." In the context of the entire case, we
9 doubt, but are open for additional arguments, that it was really the
10 target that the actions were targeted on prominent and educated Bosnian
11 Muslims, or wasn't it the entire group of Bosnian Muslims as such. And
12 the same holds true as regards paragraph 7 here, when we read "at the JNA
13 barracks, predominantly prominent members of the Bosnian Muslim and
14 Bosnian Croat communities were interrogated and beaten and tortured." We
15 invite the parties to discuss the question whether there is enough and
16 sufficient evidence or not.
17 When we discuss the other charges, count 3, murder, crime against
18 humanity punishable under Articles 5(A), 7(1) and 7(3), we already
19 discussed the question of 7(3). But we don't believe that there is
20 sufficient evidence for any planning, instigation, or ordering. For the
21 count of murder, no doubt, for committing or aiding and abetting, it would
22 be sufficient to have, as regards the mens rea, the knowledge, substantial
23 support, the taking into account of the consequences, and accepting these
24 foreseeable consequences.
25 The word "foreseeable" brings me to that what we in detail
1 discussed among the Judges, and we unanimously came to the conclusion that
2 there is reasonable doubt whether or not that what happened in Room 3 and
3 that what happened at Mount Vlasic was in the scope of foreseeability or
4 whether or not it was a deviation from an alleged criminal plan.
5 Paragraph 54, and there under (3)(ix), this incident was already
6 dropped by the Prosecution. We have some doubts whether we have
7 sufficient evidence for the destruction. The willful damage and looting
8 of Donja and Gornja Ravska and Kevljani. Also here we invite comments.
9 Under (B), we know now that we came to the same assessment, as
10 where (i) and (ii) has been dropped and forms no longer part of this
12 As regards count 6, persecution, crimes against humanity, we do
13 believe that among the alternatives quoted in the indictment, there is a
14 tendency to committing. As said earlier, the planning and ordering can be
15 regarded as the included preparation to committing.
16 Finally, we come to count 8, and this is a very special problem.
17 It's a question of principle. You know that for good reasons in the book
18 of authorities we find the remarks that what is laid down in our statute,
19 in Article 5(I), are they inhumane acts, whether this additional
20 alternative is in line with the fundamental principles of criminal law.
21 Here, the principle of clarity and definitiveness. There are serious
22 problems with this because, indeed, it is extremely vague what is meant by
23 "other inhumane acts." This is already the first observation. And the
24 second is -- isn't the alleged, under this heading, the alleged forcible
25 transfer part of deportation? And second, is it relevant for the outcome
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13 English transcripts.
1 of this case? Therefore, unanimously, the Judges would ask the OTP
2 whether or not it's possible to drop count 8 for the given reasons.
3 This concludes the remarks from the side of the Bench. While the
4 parties are thinking about their possible comments, if any, I have to come
5 back to the Prosecution's Notice of Specific Allegations from the Fourth
6 Amended Indictment which are Conceded as Not Proven, under 5, it states,
7 "For the foregoing reasons the Prosecution requests that the Trial
8 Chamber permit the Prosecution to withdraw the specific allegations as
9 described in paragraphs 2 to 4 above." Formally, I have to ask the
10 Defence, are there any objections?
11 MR. LUKIC: No objections, Your Honour.
12 JUDGE SCHOMBURG: Thank you. Then the permission is given.
13 Do any of the parties want to make at this point in time comments,
14 or has any of the parties reason to put questions to that what I tried to
16 MS. KORNER: Your Honour, on -- Mr. Koumjian wants to make some
17 factual comments on some of the things you've raised, but I think the
18 onus, because it is Rule 98, effectively is on the Defence to deal with it
19 first if they have any comments to make because we're responding
20 effectively to their application.
21 JUDGE SCHOMBURG: You started already earlier. But now the floor
22 is yours for at least the next 20 minutes to address the issues, if
23 necessary. Of course we can continue after a break.
24 MR. OSTOJIC: Thank you, Your Honour. I disagree with my learned
25 friend Ms. Korner that the onus is on the Defence, and I think that a
1 review, whether it's detailed or cursory, of the fourth amended indictment
2 clearly reflects that the OTP does not want to have the burden of proof to
3 be placed on them, but has instead chosen to shift that burden and have
4 attempted throughout the proceedings to shift the burden to the Defence.
5 Nevertheless, we'll accept the offer to go first in this case, and
6 would like to at least raise some questions with the Chamber, if
7 permitted. Specifically, I think when reviewing the fourth amended
8 indictment, one comes to the immediate conclusion that there are both
9 cumulative and duplicitous charges within the indictment. Each of the
10 eight counts clearly reflect that unnecessary and prohibited alternative
11 theory that the Prosecutor seeks against Dr. Stakic. They must choose,
12 and we are of the opinion the law in this jurisprudence requires them to
13 choose, whether or not the charges against Dr. Stakic are premised upon
14 either 7(1), individual responsibility, or 7(3), command responsibility.
15 The Celebici Appeals Chamber clearly noted in agreeing with the OTP that
16 it is difficult at times to conclude with certainty which evidence may be
17 forthcoming and which evidence is significant.
18 When read closely, the Appeals Chamber in Celebici used the words
19 "prior to the presentation of evidence." The OTP has rested. It is
20 their day in court where they must, in our opinion, based on the
21 decisional authority in this Tribunal, make an appropriate election. They
22 cannot expect the Defence to argue alternative theories. They must be
23 able to at some point decide whether their evidence was sufficient to
24 conclude that Dr. Stakic has individual responsibility or command
25 responsibility. They have not done so, even though the Chamber has
1 invited them by today's deadline to make that submission.
2 Specifically with respect to 7(3) and the command responsibility,
3 the two alternative theories within that section, de jure and de facto,
4 clearly permit that individual responsibility under the very term de facto
5 falls within that section. Comparatively speaking, when you make the
6 analysis to 7(1), there must be some affirmative action done by an
7 individual for him to be found criminally liable under individual
8 responsibility. The OTP cannot make up their mind.
9 In our opinion, respectfully, for obvious reasons because they
10 don't believe, in our opinion, that they have sustained sufficient factual
11 backdrop by way of both lay witnesses who have appeared before the Court
12 as well as, as they have called them, expert witnesses presented before
13 the Chamber.
14 We believe that the Defence will be prejudiced significantly if
15 the OTP does not make that choice. And they should be required to make it
16 before the submissions of Rule 98 bis, and certainly they should make them
18 With respect to the issue of counts 1 and 2, we believe as the OTP
19 well knows, the jurisprudence in this Tribunal, that the lesser offence,
20 namely, complicity in genocide, clearly denotes a special intent is
21 necessary. By not requiring this special intent, we believe, will only
22 render the theory of liability of conspiracy to commit genocide to that of
23 persecution which also in and of itself has a distinct and separate
24 mens rea element known commonly as discriminatory intent through some of
25 the authority provided by the Tribunal.
1 There cannot be in discussions of genocide a modification in our
2 respectful view to this specific special intent. Whether we call it under
3 Article 4(3)(A), (B), (C), (D), or (E), (E) being complicity in genocide.
4 Each and every one of those specific charges require special and specific
6 The Court noted aiding and abetting as cited in the Krstic case,
7 which I believe they incorporated the definition from Aleksovski, aiding
8 and abetting means the rendering of a substantial contribution to the
9 commission of a crime. Again, the OTP has not provided any evidence
10 through any of their expert witnesses to indicate that there was, in our
11 opinion, contribution, much less the significant substantial contribution.
12 We agree with the Court's view with respect to count 8,
13 specifically the jurisprudence has found that deportation and forcible
14 transfer are defined separately. The OTP again has chosen to make
15 alternative arguments under count 7, namely, deportation, and counts 8,
16 which is what they consider other inhumane acts. We suggest that both
17 should be viewed, and the specific jurisprudence found that there was no,
18 in our opinion, prima facie evidence to suggest or to meet count 7 of
19 their fourth amended complaint -- indictment. As the Court well knows,
20 when we discuss deportation, it is the exodus of citizens from one state
21 to another. I dare say, from my recollection and review of the
22 transcripts and the testimony of the witnesses, that there was not one
23 witness who stated that there was this significant deportation of citizens
24 from one state to another.
25 We also believe that in order for there to be this criminal
1 enterprise, or as the OTP likes to refer to it, as a joint criminal
2 enterprise, that they must set forth specifically what that enterprise
3 was. They must also, we believe, identify what was the widespread and
4 systematic pattern and attack. We believe they failed to do that. And
5 upon their analysis of the facts, we believe they should, in order to
6 provide the Defence with the adequate opportunity to bring their
7 witnesses, not only make a decision, but we expect them to concede that
8 those fundamental elements have not been proven by any of their witnesses.
9 In fact, from one of their quasi-experts who testified - and when
10 I use that word, he was an expert in prior cases - to establish the very
11 element of widespread and systematic, that the OTP in our opinion wisely
12 decided not to use the individual as an expert in this case, not only
13 because he wasn't qualified to give such testimony then or now, but
14 because his very own articles clearly and unequivocally suggest that there
15 was not widespread and systematic attack.
16 We would like the opportunity as the Court has given us, and we
17 thank the Court in advance, to be able to address all these issues within
18 our 98 bis submission.
19 Finally, if I may add, with respect to 98 bis (B), clearly the
20 sufficiency of the evidence is contemplated by the very language within
21 that rule and provision which requires, in our opinion, that the Court not
22 just accept a factual backdrop of something a witness gives but is
23 required under the law to weigh, to assess, and to clearly make a
24 determination as to whether the evidence provided by those witnesses are
25 substantial and significant wherein another Trial Chamber may be able to
1 make that evaluation.
2 In our view, since the three Honourable Judges before us were able
3 to assess the credibility of the witnesses, and since the decisional
4 authority clearly finds that if an essential ingredient in a crime is
5 missing, that a Trial Chamber may acquit, we believe that on significant
6 items, the specific ingredient of the crime was missing as it relates
7 specifically to Dr. Stakic despite their alternative theories. We also
8 believe that it is respectfully this Trial Chamber's assessment of all the
9 evidence that must be considered in determining whether or not to acquit
10 Dr. Stakic of the numerous cumulative counts.
11 Thank you, Your Honour.
12 JUDGE SCHOMBURG: Thank you for your comments and observations.
13 Only one point should be addressed now: Under Rule 98 bis (B), there
14 are, as I stated earlier, two alternatives: The motion of an accused to
15 be expected and a decision proprio motu. And what we did today was, as it
16 is demanded by the Appeals Chamber in the Jelisic appeal judgement, the
17 right to be heard. This means that we have to indicate where we have our
18 doubts, where we tend to an acquittal. And the silence means that there
19 are no doubts as the evidence stands as of today; and in addition, I think
20 we pointed out where there is a tendency where we would come to an
21 acquittal, also as regards the alternatives within one and the same charge
22 in order to be as concrete as possible to facilitate the Defence to
23 prepare their case. But it's never foreseen, and it's nowhere foreseen,
24 that it's for the Prosecution immediately to respond. So therefore, it's
25 for the Prosecution to decide whether they want to address the one or
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 other issue today or put the proprio motu argument together with the
2 motion of an accused. And I think this is what we can expect.
3 But indeed, we support the view that it would be of assistance to
4 be more concrete and to concentrate on the core issues of this case. And
5 therefore, we also touched upon issues normally not to be addressed at
6 this point in time already.
7 Please, the floor is yours for the Prosecution.
8 MS. KORNER: Your Honour, may I say, we're very grateful to
9 Your Honour for the -- I think the word used originally was judicial hints
10 that we have been given today. It does assist. I'm going to allow --
11 Mr. Koumjian is going to address Your Honours on a few of the factual
12 matters that Your Honour has raised, and the evidence, just touch on some
13 of the evidence we say is there.
14 I just want to deal with the submission made just by Mr. Ostojic,
15 that it was incumbent upon us to elect between 7(1) liability and 7(3)
16 liability today. Your Honour, that is a complete and utter misreading of
17 the decision in Celebici. I would refer Mr. Ostojic to paragraphs 743
18 onwards in the judgement which made it absolutely clear that there can be
19 a conviction on both 7(1) and 7(3). There is no onus on the Prosecution
20 to elect. And indeed, if there is a finding of guilt on both 7(1) and
21 7(3), the Trial Chamber is obliged to take that into account as an
22 aggravating factor in sentencing on whichever, usually 7(1). So there's
23 no need for us to elect.
24 Secondly, Your Honour, can I just mention why there is the charge,
25 which is count 8, of inhumane acts, transfer. That is because there is a
1 difference between deportation and transfer, as Your Honour knows, and
2 that's the reason why there are two counts. But we take into account what
3 Your Honours have to say about that. Mr. Koumjian would wish to address
4 Your Honour on some of the factual matters.
5 JUDGE SCHOMBURG: But I think it's appropriate to have the
6 necessary break now. And therefore, the trial stays adjourned until 12.00
8 --- Recess taken at 11.27 a.m.
9 --- On resuming at 12.05 p.m.
10 JUDGE SCHOMBURG: Please be seated.
11 Mr. Koumjian, please, the floor is yours.
12 MR. KOUMJIAN: Thank you, Your Honours. I would like to just
13 address a few of the issues that Your Honour pointed out and directed our
14 attention to this morning. I'm doing this somewhat off the top of my
15 head, and I will be directing Your Honours to specific evidence that I
16 recall that related to these points. In our written brief, we will be
17 much more detailed both to citing the evidence and where it appears in the
18 transcript and also in addressing legal questions. My purpose now is just
19 to give a few -- an overview of the few points that we think are directly
20 related to important aspects of the proof regarding issues that Your
21 Honours highlighted this morning.
22 One of the points raised this morning was the responsibility of
23 Dr. Stakic for decisions by the Crisis Staff which was itself a group of
24 individuals. Your Honour pointed out that issue when we -- the Tribunal
25 seeks to hold persons individually responsible, how do we hold people
1 responsible for decisions by a group? But obviously, if we follow this
2 logic to its ultimate conclusion, one could say that no one is responsible
3 when a group, a small group such as the Crisis Staff, makes decisions. In
4 fact, we think in this case, there has been evidence that Dr. Stakic not
5 only was completely voluntary in his participation in the decisions of the
6 Crisis Staff, but that the evidence shows Dr. Stakic's unique and
7 important role in the decisions of the Crisis Staff.
8 You recall, Your Honours, early in the trial we played a video
9 where there was an interview with Colonel Arsic. Colonel Arsic was asked
10 to discuss the situation in Prijedor, and he indicated that it's because
11 he was so well acquainted. He said not only was he well acquainted but
12 all the civilian authorities, he makes it a point to make them
14 There followed an interview with Dr. Stakic. I believe the
15 journalist was Mr. Rade Mutic, and he was introduced. He introduced
16 Dr. Stakic as the first man of the municipality. And this has been the
17 evidence consistently throughout the trial. Even to the witness
18 Mr. Baltic who when asked by Mr. Lukic about the responsibility and role
19 of Dr. Stakic said "the title, president of the municipality, speaks for
20 itself." He was the number one in Prijedor, and particularly during the
21 time of the Crisis Staff; he was the president of the Crisis Staff. He
22 was also the highest ranking SDS member on the Crisis Staff because the
23 president was not a member, but Dr. Stakic, as the vice-president of the
24 SDS, was the highest SDS member of the Crisis Staff.
25 We know from the evidence presented in this case that Dr. Stakic
1 spoke in the name of the Crisis Staff. We have presented evidence where
2 he spoke to the local press. You recall the one short video interview
3 where Dr. Stakic was discussing the attack on Kozarac, and what he said,
4 the military -- what the military called the cleansing or Ciscenje. We
5 know that he spoke to the international press and made efforts on behalf
6 of the Crisis Staff and others, other members of this joint criminal
7 enterprise, in our view, to keep the international attention or
8 international press, to keep their attention off of Prijedor and off of
9 the horrible crimes that were happening in particular the camps. They
10 were successful all the way up until August the 5th when Penny Marshall
11 and a few other journalists were able to go to the camps and to report
12 what was happening. I think the evidence shows how important that was
13 because the situation changed dramatically after that.
14 The killings that were everyday occurrences soon diminished, and
15 the camps were closed. Shortly after, what was happening in Prijedor
16 became known to the world. Dr. Stakic did his best to make sure this was
17 not known to the world. We also have presented evidence in documents that
18 decisions of the Crisis Staff were signed by Dr. Stakic. You recall the
19 interview of Dr. Stakic that is in evidence, the longer one. It is about
20 a 45-minute interview. I'm sorry I don't have the S number off the top of
21 my head where Dr. Stakic was asked about his role, and he said first he
22 was president of the municipality. And secondly, he was asked then, Is
23 that like the mayor? And he said, Yes, precisely that. And he was asked
24 about his role, and he said he signed the orders of the Crisis Staff. And
25 in fact, the evidence is overwhelming that it is Dr. Stakic's order --
1 excuse me, signature on many of these orders, the rather unique manner of
2 signing S. Milomir, the same manner of signing a last initial, first name,
3 that was on documents found on his person at the time of his arrest.
4 Finally, Dr. Stakic had the very, very crucial role, both as
5 president of the Crisis Staff and president of the municipality of setting
6 the agenda. It was his unique role to set the agenda for the meetings,
7 for the discussion, for the decisions of the Crisis Staff. That is
8 confirmed both by the statute and by Mr. Baltic's testimony who indicated
9 it is the president of the municipality who set the agenda. Dr. Stakic
10 presided over the meetings of both the Municipal Assembly and of the
11 Crisis Staff.
12 So the evidence in this case shows that Dr. Stakic was much more
13 than a member of this Crisis Staff. He played a unique and critical role.
14 Many of these same factors that I have just listed are also
15 relevant to the other issue Your Honour highlighted and directed our
16 attention to and that is the evidence of a de facto or de jure authority
17 by Dr. Stakic under Article 7(3) of those who actually physically
18 perpetrated the crimes. His role as the number one man in the
19 municipality is relevant to this discussion.
20 In addition, we have in this case orders. We have signed orders
21 to the police and army that we know were complied with. If the issue is,
22 can this man give an order to an army and the police, the answer is yes
23 because we know from the documents that, for example, the Crisis Staff
24 ordered the intervention squad to be set up, and in fact indicated that
25 they would have approve the members. We have a Crisis Staff order to the
1 army and police to provide security at the hospital. To the army, we have
2 a Crisis Staff decision naming the logistics commander. Another Crisis
3 Staff decision replacing Slobodan Kuruzovic as the head of the TO.
4 We have -- we admit we have much stronger evidence on the police
5 than we do on the army. On the police, we have, for example, the document
6 that Dr. Baltic sent to Mr. Drljaca asking him to indicate how -- whether
7 or not the decisions of the Crisis Staff had been implemented by the
8 police and how they were implemented. And we have the response by
9 Mr. Drljaca. We know that, for example, the Crisis Staff ordered that
10 illegally acquired property be returned -- excuse me, not be returned, be
11 given to the municipality. I forget the exact words used, but that the
12 municipality would confiscate illegally acquired property. That's
13 property that was stolen. It is very interesting that nowhere does the
14 Crisis Staff order that this stolen property be returned to those it was
15 stolen from.
16 We know that many, many houses, personal property, cars were
17 confiscated, and Muslim or a Croat could not drive a car in Prijedor and
18 expect to keep it. The Crisis Staff did nothing about that. The Crisis
19 Staff -- we have some decisions and orders and Kozarski Vjesnik articles
20 asking the police to stop the looting of businesses, and it appears from
21 the totality of the evidence talking about Serbian-owned businesses.
22 Could the Crisis Staff punish individuals? Well, we have
23 absolutely clear evidence of that. They punished, they detained, they put
24 into camps thousands of people. Muslims and Croats. If the Crisis Staff
25 could order the detention of Muslims and Croats, then clearly they had the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 power to order the arrest and detention of other Serb perpetrators. If
2 the Crisis Staff could order that the president, legitimately elected, of
3 the municipality, President Cehajic, be arrested, and sign an order that
4 no one would be released from the camps without their permission, then
5 clearly the Crisis Staff had the power to punish and prevent the crimes
6 that were occurring.
7 And in fact, the Crisis Staff did, in the end, do something to
8 stop the crimes, not because they wanted to but because of the
9 international spotlight. And that is after the visit of the international
10 journalists, the camps were closed. That itself shows the power of the
11 Crisis Staff to prevent crimes.
12 I'd like to brief address the Room 3 and Vlasic mountain massacres
13 and their relationship to the criminal conduct of the accused. Your
14 Honours, it's our position that we do not have to show for foreseeability
15 that the accused knew the exact time and the exact place where a crime
16 would be committed. But it is our view that from the totality of the
17 evidence, it was clear that a campaign of persecutions including killings
18 was going on in Prijedor. Extremely prominent individuals had been
19 detained, extremely prominent individuals known to the accused had been
20 killed in the camps including a great many of his fellow physicians,
21 including his former boss, the president of the municipality, the person
22 who had an office directly across from him, the person who he replaced.
23 We saw the video of Dr. Stakic talking about Kozarac and the great
24 victory of the army there, while at the same time we could see in that
25 video house after house destroyed and burning. We saw what the road --
1 some short shots of what the road looked like and we heard evidence that
2 Kozarac was destroyed, not in a military attack but following the attack.
3 Fires were set, grenades were thrown into houses. Kozarac was destroyed.
4 We know that Stari Grad was destroyed - the old part of Prijedor - and
5 razed to the ground, bulldozed to the ground.
6 We know from the witnesses who testified that in July, the Brdo
7 area was attacked, and one village after another was cleansed, as the army
8 said. There was a Ciscenje in those villages. And we saw from the
9 witnesses who survived those that what that meant, it meant deporting to
10 Trnopolje the women and children, killing many of the men, putting the
11 remainder of the men into camps like Omarska and Keraterm.
12 One of those groups of people from the Brdo area were those that
13 were put into Room 3. Given what had happened in the Brdo where village
14 after village was attacked, was cleansed, where killings occurred with
15 complete impunity. All this time, from late May until the Room 3 massacre
16 in late July, many hundreds, thousands of killings had occurred with
17 complete impunity given that it certainly was not unforeseeable. In fact,
18 we think it certainly is foreseeable that a crime such as Room 3 and
19 Vlasic mountain would occur. Room 3 massacre the evidence showed was not
20 something done on the spur of the moment. There was a machine-gun set up
21 outside that room. These were people from the Brdo area who had been
22 treated particularly harshly from the moment they arrived at the camp.
23 And then if we look at the Vlasic mountain massacre, again, this was not
24 something done by one or two individuals. This was done by a group. This
25 was a convoy of well over a thousand individuals. There were at least ten
1 perpetrators actually at the scene. Both of these crimes we had many
2 bodies. In Room 3, the bodies had to be disposed of. In both of these
3 crimes it would have been extremely easy at the time to identify the
4 perpetrators if there was any intention to do so. The evidence shows
5 clearly that in Prijedor, under Dr. Stakic in 1992, to kill a Muslim or a
6 Croat was not a crime. You could do so with impunity. There was no sign
7 of disapproval by the authorities or by Dr. Stakic to those killings. And
8 given that, it's not surprising that a crime also like Vlasic mountain
9 where over 200 men are lined up on a cliff and massacred occurs.
10 Again, it would have been so easy to identify the perpetrators of
11 the Vlasic mountain massacre. It would be very easy to know which police
12 officers were escorting that convoy. There was no intent to do so, to
13 punish or to prevent. The only intent by the authorities and by
14 Dr. Stakic was to cover up the crimes that had occurred because Dr. Stakic
15 was very much involved in those crimes from the beginning. He was
16 responsible for that campaign of persecutions and we believe he knew so.
17 I'd like to briefly address now the evidence regarding instigation
18 and planning. Your Honours, first of all, it is our belief that the law
19 of the Tribunal does not require at this stage a 98 bis hearing, that
20 the -- either the Prosecution or the Trial Chamber identify the mode of
21 responsibility. And certainly, it's possible, and it has happened in
22 other cases, that an Appeals Chamber finds a different mode of
23 responsibility. Certainly, there's also many cases where the Trial
24 Chamber found a different mode of responsibility than that principally
25 advanced by the Prosecution. But I'd like to address particularly the
1 instigation and planning.
2 JUDGE SCHOMBURG: Mr. Koumjian, before you proceed, I know it
3 seems to be impolite, but for personal reasons, may I ask you for a break
4 of about 5 minutes. And then we continue immediately. Thank you.
5 --- Break taken at 12.23 p.m.
6 --- On resuming at 12.26 p.m.
7 JUDGE SCHOMBURG: Thank you for your understanding. And sorry for
8 the interruption. Please proceed, Mr. Koumjian.
9 MR. KOUMJIAN: Thank you.
10 We do believe that there is evidence that a reasonable Trial
11 Chamber could find proves beyond a reasonable doubt that the accused both
12 instigated and planned crimes in the fourth amended indictment. Regarding
13 instigation, we have presented in evidence a certain number, admittedly, a
14 limited number of documents concerning public statements of the accused,
15 again both in B/C/S to the local population, and also public statements to
16 the international community.
17 Dr. Stakic continually portrayed his enemies -- portrayed as
18 enemies Muslims and Croats, particularly, though, Muslims in Prijedor. He
19 described a threat that he said was coming from being directed from Tehran
20 and the Vatican. Again, he denied the existence of the camps or tried to
21 misportray what was actually going on in those camps. He talked about the
22 people of Prijedor or the Serbian population of Prijedor facing a jihad.
23 And he continually referred to the importance of avoiding another
24 Jasenovac, another -- the camp where so many Serbs had been killed in
25 Croatia during World War II, continually brought up the experience, the
1 horrible experience and suffering of the Serbian people in World War II,
2 and tried to portray the neighbours in Prijedor who were of Muslim and
3 Croat ethnicity as being threats to the Serbian population and as being
4 threats to commit -- threatening to commit another genocide, when in fact
5 there was no evidence of that.
6 Similarly, the evidence shows planning on the part of Dr. Stakic
7 and his associates. We know that prior to the takeover, arms were being
8 distributed among the Serbian population. And that once the takeover
9 occurred, the next step was the disarmament of the non-Serbian
10 population. This was done neighbourhood by neighbourhood, village by
11 village on the orders of the Crisis Staff.
12 We know that people were arrested according to lists, and we even
13 know that in the camps, there were lists that were used when people were
14 killed. Guards would come at night with a list of names. We know that
15 also, for example, I believe it was August 5th when Keraterm was closed,
16 the commander read out the names of a hundred or so, 100 or 120,
17 individuals who were placed on two buses and never seen again. And some
18 of the remains were exhumed from Hrastova Glavica.
19 Prior to the attacks or the Ciscenje, the cleansing of villages,
20 there clearly was planning in how artillery was positioned. Even the
21 initial attacks on Hambarine and Kozarac, it's clear that guns were
22 positioned facing in position to fire artillery barrages on those
23 communities. The deportations were carried out in a methodical fashion.
24 The Crisis Staff paid for the buses. We have the bills from Autotransport
25 Prijedor, and the authority of the Crisis Staff for those buses to deport
1 individuals or to forcibly transfer them to the territory controlled by
2 the Muslim or Sarajevo government forces.
3 The most obvious example of the planning were the camps. The
4 camps were set up on the orders of the Crisis Staff. The Crisis Staff
5 also controlled the camps in that it indicated no one could be released
6 without their order. There was directions to the military to provide
7 security of the perimeter. There's many, many more examples, and I don't
8 want to list all of them -- or I probably could not off the top of my
9 head. But I think what the evidence shows in particular with Prijedor,
10 and the horrible things that happened in Prijedor, is that Prijedor
11 presented a problem for those who were planning on a Serbian state or
12 Republika Srpska in that Prijedor was a community with a Muslim
13 plurality. Serbs were a minority; they were -- they even -- they were
14 second -- the Muslims had a plurality, and it appeared, a growing
15 population. The government of -- I think Prijedor was the only, the
16 evidence was from Dr. Mujadzic, the only Krajina Municipality to elect a
17 Muslim government. So Prijedor created a particular problem for those
18 planning on a -- the separation of peoples and the creation of a Serbian
19 state. And in that planning, it became very important that Prijedor be
20 cleansed, and that the cleansing that was planned was a particularly
21 brutal one for that particular municipality.
22 Your Honour, I just want to briefly address a couple of the
23 paragraphs that Your Honour mentioned, and not all of them. I'll just
24 direct Your Honours and Your Honours' staff to some of the evidence we
25 believe will appear in the transcript at this point. Regarding the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 cleansing -- or excuse me, the attack on Brisevo, we would ask Your
2 Honours to look at the testimony Mr. Ivo Atlija who testified regarding
3 the attack on that village. And in regards to paragraph 47, and I believe
4 Your Honour directed us to paragraph 5 --
5 JUDGE SCHOMBURG: 5 and 8.
6 MR. KOUMJIAN: Yes. Regarding paragraph 5, we would ask Your
7 Honours to direct your attention to the 92 bis statement of Witness T.
8 Witness T talked about his mother being placed on those buses, along
9 with -- and I think he gave a figure of 40-odd individuals, and there is
10 evidence regarding the exhumation of some individuals named in a
11 particular location and their identification.
12 Again, thank you for the opportunity to address you. I just
13 wanted to hit a few highlights of our views on the issues raised by Your
14 Honours this morning. And we will respond in more depth, particularly
15 regarding the legal issues, in our written submissions. Thank you.
16 JUDGE SCHOMBURG: I have to express also on behalf of my
17 colleagues the extreme gratitude that once again you highlighted your
18 point of view as regards both facts and including also legal issues. I
19 think under the prevailing exceptional circumstances, it is adequate and
20 appropriate to exchange arguments already at this point in time in order
21 that all the parties know where we stand, where the Prosecution stands,
22 and I can only invite, if they so want, the Defence also to give some
23 additional comments that we have the entire picture before we come to the
24 remaining question of today.
25 MR. OSTOJIC: Thank you, Your Honour.
1 The Defence believes that the Prosecution is trying to paint with
2 a rather broad brush and that it should not be permitted because the
3 evidence does not substantiate specifically that what was just stated;
4 namely, that Dr. Stakic had a boss, specifically that Dr. Stakic ordered
5 the arrest of the late Mr. Cehajic. I would like the OTP to show us the
6 evidence concrete as required based upon their burden of proof, whether
7 it's documentary evidence or through lay witnesses. They have not done
8 that. The inference they would like us all to draw is always against the
9 accused, Dr. Stakic. Painting with a broad brush is not what is required
10 by them under their burden of proof. They must be specific; they must
11 bring forth the exact evidence in order to substantiate any and all
13 They identified things like signing orders to the police and the
14 army. Show us the concrete evidence where Dr. Stakic ordered that there
15 be either deportation, expulsion, or any crime including murder to be
16 committed upon any ethnic group, Muslim or Croat. In the opening
17 statements when the trial commenced on the 16th of April of this year,
18 Ms. Joanna Korner was specific in stating and utilising the word "aiding
19 and abetting." They would like to transform the definition of instigation
20 and planning, and they try to utilise that by inflaming the facts and by
21 pointing through their exhumation evidence the tragic and unnecessary
22 deaths that occurred. Their only expert who could show that there was
23 either 7(1) or 7(3) responsibility was the military expert. He conceded
24 both in his oral direct examination through the Power Point presentation
25 that there was a cooperation between the military and police as well as
1 coordination. He conceded, however, that his analysis was rather limited
2 with respect to the civilian authorities and the police. Interestingly,
3 the OTP concedes that they have a vast amount of evidence against the
4 police. Which witness established any link whatsoever between the
5 civilian authorities and the MUP? Which witness established for the Court
6 with any clarity what the hierarchical structure was of the police in
7 Prijedor, much less how it may relate to the civilian authorities?
8 The inference under the law and jurisprudence of this Tribunal is
9 to favour the accused, Dr. Stakic, for they have not only failed to meet
10 their burden of proof; they cannot because no such proof exists, and all
11 they have is mere argument with respect to those issues. Argument, in our
12 opinion, respectfully, made of whole cloth.
13 When they highlight for the Court the videos that were played, I
14 would ask the Court to note the date and the time the videos were played,
15 and also take the exhibit wherein Mr. Simo Drljaca gives a report whether
16 through a three-month or nine-month analysis of what occurred. Read the
17 report as to what Mr. Drljaca claims were the number of deaths that
18 occurred in Prijedor.
19 If it's true what the Prosecution states, that Drljaca informed
20 them, we must examine on the next step what information was provided.
21 That report does not give an accurate portrayal of what occurred. That
22 report suggests, and I believe establishes, that Dr. Stakic was indeed
23 left in the dark as to what was occurring and was not being informed as to
24 what had happened or what would happen on the terrain.
25 The Prosecution, although, seems to indicate that there's a
1 foreseeability issue with respect to Room 3 and Mount Vlasic. We submit
2 respectfully that same natural and foreseeable consequence should and
3 indeed must, according to the jurisprudence of this Tribunal, be applied
4 with respect to that which occurred on May 22nd at Hambarine as well as
5 that which occurred on May 24th at Kozarac.
6 Were the civilian authorities notified that a Muslim checkpoint
7 was going to attack a military personnel killing two, wounding four? Were
8 the civilian authorities notified on the 24th of May that a Muslim
9 checkpoint with armed men were going to attack and kill a convoy passing
10 through on the Banja Luka/Prijedor Road? Did the military contact the
11 civilian authorities to request permission to retaliate, to attack, or
12 even to go beyond the normal rules of engagement? We heard from the OTP's
13 witness. We heard what it means to clear a semi-urban and an urban area
14 when he unequivocally said - and I'm paraphrasing - that he understands to
15 clear an area is to capture it and to destroy or kill everyone within.
16 Thankfully, Mr. Brown was not there during those attacks. Admittedly, the
17 military went beyond what was necessary in both those attacks. However,
18 the responsibility is not, as suggested by the OTP, with the civilian
19 authorities; it stands with the military. If they have strong evidence
20 against the police, I wonder how they would quantify the evidence against
21 the military.
22 It's rather offensive to hear, quite frankly, that under
23 Dr. Stakic in 1992 to kill a Muslim or a Croat was not a crime. That
24 statement in and of itself enlightens us not only as to how broad they
25 would like to paint the evidence, but how narrowly they view the
1 statements made by Dr. Stakic throughout the critical period. As we
2 remember his statement, on May 12th, 1992, at a Serbian session that
3 Dr. Stakic is asking for peace. At no time is there any evidence, whether
4 it's documentary or through lay or expert witnesses, which would suggest
5 that Dr. Stakic had any discriminatory intent or any intent whatsoever to
6 justify a comment or to suggest that there's any evidence that to kill a
7 Muslim or a Croat was not a crime.
8 Did the OTP present evidence, concrete evidence, to establish that
9 a civilian authority, a local politician, was able to interfere with any
10 of the hierarchical structures, whether police or military? They did
11 not. Why? None exists. There was no responsibility under Article 7(3),
12 and there was no authority by which Dr. Stakic could interfere. But then
13 again, we want to paint with a broad brush and say that one individual man
14 29 years old at the time surrounded by experienced elder statesmen in a
15 municipality was able to not only manipulate the events that occurred, but
16 that indeed he was able to control all of them. Such evidence is not
17 before the Tribunal; such evidence does not exist simply because that was
18 not the reality then and it certainly is not the reality now.
19 The OTP spends some time on instigation and planning. They cite
20 for instigation documents public statements to the local population. I
21 invite them to point at any time when Dr. Stakic made a statement which
22 would have been considered not only discriminatory but even defamatory
23 during the critical time period as the OTP chooses, up through August 5th,
25 Public statements to the international press? I thought we heard
1 that. I thought their witness from the international press told us not
2 only in 1992, but in 1997, and in 2002 he was of the opinion that the late
3 Dr. Kovacevic was in control and in charge.
4 With respect to planning, there's a claim that there's arms
5 distribution. We've seen no such evidence that Dr. Stakic at any time
6 ordered, assisted, or planned that there be an arms distribution to Serbs
7 in the Prijedor Municipality. The orders that we do see with respect to
8 disarmament as asked by specific witnesses, as Dr. Brown shared with us,
9 the orders clearly say that all illegal weapons for all people in the
10 municipality should be turned over.
11 I believe that the Court will, and we are confident that the Court
12 will examine the evidence in its totality, will weigh the evidence of
13 witnesses who in our opinion have not only contradicted themselves on
14 numerous occasions, but witnesses who have appeared here and have been
15 inconsistent with what was said in their direct examination and that which
16 was offered during cross-examination. We also would like to thank the
17 opportunity -- or thank the Chamber for giving us an opportunity to
18 address you in our 98 bis submissions, and we appreciate the time that was
19 given to us this morning. Thank you.
20 JUDGE SCHOMBURG: I have to thank you as well for these clear
21 words. I think it's now not the time to go into far more details because
22 this has to be done very, very carefully analysing the documents word by
23 word and analysing the jurisprudence and other authorities in depth. We
24 indicated earlier where the problems may lie from our point of view; and
25 given the special circumstances of the case, let me now address that what
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 I repeatedly did in the past, to emphasise the specific value to come to
2 consensual solution as foreseen under Rule 65 -- 62 bis of our rules. And
3 I think already in the past, but also especially this morning, Dr. Stakic
4 showed, himself, cooperation, cooperation which not is self-understanding.
5 From my experience, at this point, that's the day where the
6 Defence or the accused tries to use the concrete situation to come to a
7 solution under these special circumstances. And using - I don't want to
8 make use of the word "abusing" - this special situation. Therefore, we
9 have to take into account this spirit of cooperation.
10 I think this hearing has served also to meet the prerequisites,
11 the formal prerequisites, under Rule 62 bis. I don't want to touch in
12 detail on Roman I. No doubt, and this has to be emphasised to you,
13 Dr. Stakic, that such a guilty plea has to be made, if so, voluntarily and
14 this voluntarity [sic] must be also not equivocal. So therefore, if you
15 should decide not to plea, then this is your right, no doubt.
16 But more important is II. It's not only under 98 bis, but also
17 under 62 bis that the accused, that Dr. Stakic, is informed, and I think
18 the contributions by all parties and the Judges hopefully as well served
19 for giving this information where we are at this point in time. And when
20 conferring in the meantime with my Honourable Colleagues, we don't believe
21 that much has changed as regards the value of, if any, a crime committed
22 by Dr. Stakic.
23 So it shall serve as a basis for a decision whether or not to
24 enter such a plea. And it is also serves to indicate whether or not the
25 parties and the Judges believe that there is sufficient factual basis for
1 the crime and the accused's participation in it, as we can read it in
2 Rule 62 bis, IV.
3 So in conclusion, I believe it's especially important at this
4 point in time for the Defence to know about the provisional assessment by
5 this Chamber. And I have to emphasise once more: This Chamber
6 unfortunately deplorable in this composition will not be available any
7 longer for the purpose to accept a plea under Rule 62 bis; if not, at
8 least we can find a starting point. It doesn't mean that we have to
9 fix -- the parties have to fix such an agreement already today. But we
10 have to identify today whether or not there is a likelihood to come to
11 such an agreement foreseen under Rule 62 bis. We all know that we are in
12 this special situation for unforeseeable and deplorable reasons. But I
13 believe all the parties and the Tribunal should regard this point in time
14 as a unique chance to come to a fair, balanced, and maybe
15 never-again-achievable solution today.
16 For the Tribunal, this special value is without any doubt that we
17 are under the obligation to act as effectively as possible, to act in a
18 fair and expeditious way. Already in the beginning of this trial, I
19 emphasised that the notion of a fair trial includes, no doubt, an
20 expeditious trial. And let me please invite the parties under these very
21 special circumstances to reconsider what is possible for them; and as it
22 was already said in the 65 ter (I) meeting, I have available already and
23 signed this document on the minutes of the 65 ter (I) meeting, and for the
24 purposes to have a better basis, it should be distributed as soon as
25 possible to the parties.
1 I want to, as is stated there, invite one representative of both
2 parties to my office this afternoon, 3.00. And for the reasons laid down
3 in this strictly confidential document. May it please be distributed as
4 soon as possible to the parties.
5 And this can only have an appellant function. As regards
6 Dr. Stakic, the main person in this case, please take into account that as
7 mentioned, this is indeed a unique chance for very, very special reasons.
8 And this chance will never come back.
9 The trial stays adjourned until further notice.
10 --- Whereupon the hearing adjourned
11 at 1.00 p.m.