Tribunal Criminal Tribunal for the Former Yugoslavia

Page 76

1 Tuesday, 12 March 2002

2 [Motion Hearing]

3 [The accused not present]

4 [Open session]

5 --- Upon commencing at 2.34 p.m.

6 JUDGE LIU: Call the case, please, Madam Registrar.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-01-42-PT, the Prosecutor versus Pavle Strugar.

9 JUDGE LIU: For the sake of the record, may we have the

10 appearances please for the Prosecution.

11 MS. SOMERS: Thank you, Your Honour. Susan L. Somers, lead

12 counsel. Also present, Mr. Massimo Scaliotti, Ms. Susan Lamb, Ms. Susan

13 Grogan and Mr. Vladimir Tochilovski.

14 JUDGE LIU: For the Defence.

15 MR. RODIC: [Interpretation] Good afternoon, Your Honours, for the

16 Defence of General Pavle Strugar, Goran Rodic from Podgorica, and my

17 colleague, Mr. Vladimir Petrovic, an attorney from Belgade. Thank you.

18 JUDGE LIU: Thank you very much. This Trial Chamber received the

19 Defence notification on the attendance of the accused dated the 5th of

20 March, 2002. In this notification, the accused respectfully informs the

21 Trial Chamber that he is not in a position to travel to The Hague to

22 attend the hearing scheduled for today. We regard the accused's absence

23 is with his consent.

24 Mr. Rodic, would you please confirm that?

25 MR. RODIC: [Interpretation] Your Honour, I do confirm it. The

Page 77

1 accused is absent of his own free will and we thought he should inform the

2 Court of the reasons for his failure to arrive. He has just recently been

3 released from hospital, and that is the reason for his non-arrival today.

4 JUDGE LIU: Thank you. Before we start with the motions

5 concerning the jurisdiction and the defects on the indictment, there is

6 one procedural matter I would like to discuss with both parties. That is

7 whether we could hold a Status Conference on this issue right after this

8 hearing. We understand that this Status Conference is without any

9 previous notification to both parties, but we believe that that Status

10 Conference will be very short, and it won't take a long time. So I would

11 like to hear both parties on this very issue first.

12 Ms. Somers?

13 MS. SOMERS: Thank you, Your Honour. I must inform the Chamber

14 that we may be having some microphone problems. I'll see how it

15 progresses.

16 This morning, at another informal session, this issue was raised,

17 and the only concern that we wanted to express to the Chamber was the

18 absence of counsel for Mr. Jokic, that if the Status Conference had any

19 issues that may apply to both accused, we were concerned because of the

20 changeover, literally on the cusp of a changeover of counsel. We were

21 notified by the Registry yesterday that Mr. Zarko Nikolic will be assuming

22 the role of lead counsel. And again this would be our only concern we

23 want to raise to your attention.

24 JUDGE LIU: Thank you. For Mr. Rodic?

25 MR. RODIC: [Interpretation] Your Honour, the Defence of General

Page 78

1 Pavle Strugar agrees to this proposal. I only wish to point out that this

2 morning, we had a detailed meeting with the legal officer, Mr. Fourmy,

3 concerning these issues, and if the Chamber deems it necessary to hold a

4 Status Conference, the Defence of Pavle Strugar does not object to this.

5 JUDGE LIU: Thank you very much.

6 [Trial Chamber confers]

7 JUDGE LIU: Well, after consultations with my colleagues, we'll

8 have the Status Conference just for the accused Mr. Strugar. And at a

9 later stage, we'll arrange another Status Conference for Mr. Jokic. So

10 all the issues discussed in that Status Conference should be strictly

11 confined within the matters concerning with the accused Strugar. It is so

12 decided.

13 Now, the hearing today concerns the Defence preliminary

14 motion dated the 18th January, 2002, pursuant to Rule 72 of the Rules of

15 Procedure and Evidence. This Trial Chamber is also seized with the

16 following response and the replies. On the 1st of February, 2002, the

17 Prosecution responded to the Defence motion in its Prosecution's response

18 to Defence preliminary motion challenging jurisdiction, which was

19 supplemented by the consolidated corrigendum and the supplemental sourcing

20 to Prosecution's response to Defence preliminary motion alleging defects

21 in the forms of the indictment and the challenge of jurisdiction dated 6th

22 February, 2002.

23 On the 5th of February, 2002, the Defence filed the Defence reply

24 to the Prosecution's response to Defence preliminary motion. On the 21st

25 of February, 2002, the Prosecution responded to the Defence reply. The

Page 79

1 hearing of today is more particularly focussed on the question of

2 jurisdiction. If the parties wish to express themselves on the question

3 of the form of the indictment, they are at liberty to do so.

4 There are several issues concerning with the issue of jurisdiction

5 which was raised by the both parties. Among others, the first: Whether

6 Article 51 and 52 of the Additional Protocol I and Article 13 of

7 Additional Protocol II are customary law. Two, whether the Additional

8 Protocol are applicable as a matter of treaty law or special agreements.

9 Thirdly, whether cumulative charging in the both Additional Protocol I and

10 II is proper. The last one, should Article 3 as a residue clause be

11 applied in the instant case in view of the fact there was an international

12 armed conflict. So only Article 2 is applicable.

13 We would like to hear both parties on those issues. Since the

14 Defence counsel filed the motion on this very issue, we would like to give

15 the floor to the Defence counsel. Yes, Mr. Rodic.

16 MR. RODIC: [Interpretation] Thank you, Your Honour. With regard

17 to the Defence preliminary motion filed in accordance with Article 72 and

18 in connection with the jurisdiction of the Tribunal, and in respect to the

19 Protocols to the Geneva Conventions and the residual clause, my colleague

20 Mr. Vladimir Petkovic will address you on these issues.

21 MR. PETKOVIC: [Interpretation] Thank you, Your Honours. I wish to

22 deal with these issues very briefly in view of the fact that most of the

23 arguments we can present have been presented in our preliminary motion and

24 other motions, so we feel that any repetition would be superfluous. We

25 will, however, draw attention to the most important arguments which we

Page 80

1 feel to be crucial for your decision in these matters.

2 First, I wish to say that in my view, and as far as I understand

3 the jurisdiction of this Tribunal to date, the issue of additional

4 protocols has not been resolved unambiguously, and the status of these

5 protocols has not been defined in a manner that would relieve us of any

6 doubt as to whether this is applicable and in what situations. That is

7 why we raised this issue. We feel it is important not only for the

8 indictment against our client, but because we feel that it is important

9 for this Tribunal to issue an unambiguous ruling on this issue, which is

10 of great international interest.

11 The fundamental arguments that we drew attention to and which I

12 would reiterate here briefly are the following: First, in the view of the

13 Defence, and we have supported this with arguments in our motions, the

14 additional protocols to the Geneva Conventions, the first and second

15 protocol, are not part of international customary law. The arguments to

16 support this, which I will not go into detail, are, first of all, what was

17 said in the report of the Secretary-General of the UN when the statute of

18 the ICTY was adopted in 1993 where enumerating in detail the sources of

19 international customary law in order to prevent any possibility of someone

20 being tried under a law which was not in force when the offence was

21 allegedly committed to avoid violating the principle of "nullum crimen

22 sine lege." We do not find the additional protocols among these sources.

23 If we were to look for an authentic interpretation of the will of the

24 originators of the statute of the ICTY, that is, the members of the

25 Security Council at that time, and if we were to look at what was stated

Page 81

1 by the American representative at that time, we could come to an

2 unambiguous conclusion that those who created this Tribunal and decided on

3 the legal sources of this Tribunal did not have the additional protocols

4 in mind, all the more so, as it was clearly stated, that the additional

5 protocols as a source of customary law, and it was stated that the ICTY

6 was expected to apply international customary law as well as international

7 treaty law, referring to the treaty law that was relevant at the time of

8 the indictment. The additional protocols are stated with -- in a

9 sufficiently explicit manner.

10 I wish to that add that in the jurisdiction of this Tribunal, the

11 applicability of the additional protocols has been discussed on several

12 occasions. It is my submission, and I may be wrong, that the jurisdiction

13 of this Tribunal is that wherever the additional protocols were touched

14 upon, they were viewed as part of international treaty law in different

15 ways, but always as part of international treaty law. In my submission,

16 grounds for this claim may be found in the decision of the Appeals Chamber

17 on jurisdiction in the Tadic case as well as in the judgment in the

18 Blaskic case. The Defence founds its arguments on this fact: The

19 additional protocols are part of the corpus of international treaty law.

20 And if this is true, then we arrive at the question of whether this legal

21 source existed, whether it obtained at the time relevant for this

22 indictment. And that is in the last three months of 1991.

23 The Defence, I hope, has clearly set out its arguments supporting

24 the fact that there is no legal source that would stem from treaty law

25 existing at the time which would support the applicability of the

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1 additional protocols as part of international treaty law.

2 There are two aspects here that I would like to touch upon. The

3 first of these is whether the parties, the warring parties at the relevant

4 time, were bound by the provisions of the additional protocols, and those

5 are treaty provisions.

6 And the second aspect is whether they were -- whether there was

7 perhaps a special agreement establishing the applicability of this legal

8 source. In our submission, and we feel that we have supported this with

9 arguments in our motions, the Republic of Croatia was not a subject of

10 international law at the time. We further argue that even we were to

11 adopt the position that, regardless of whether we view the issue from the

12 declarative or constitutive aspect, whether the Republic of Croatia was

13 bound by what we are discussing here, we argue that Croatia was not a

14 subject of international treaty law at the time and could not have

15 therefore been a subject undertaking obligations to fulfil the norms of

16 international humanitarian law.

17 A further argument that may be used, whether cumulatively or

18 alternatively in relation to this claim, is that the Republic of Croatia

19 became a party to the relevant conventions, including the Additional

20 Protocols, in May, 1992, which is quite some time after the expiry of the

21 period which is relevant for this indictment. In May, 1992, the Republic

22 of Croatia handed over the ratification instruments of the Geneva

23 Conventions and the Additional Protocols.

24 In our submission, the position I have just put forward is also

25 supported by the finding of the Trial Chamber in the case of General

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1 Blaskic. I will not quote now in order to save time, but it is quite

2 clear that the applicability of the conventions and the protocols is

3 connected to the handing over the ratification instruments, or

4 alternatively, that it is connected to the existence of special agreements

5 between the parties, according to which the instruments of international

6 humanitarian law would be applicable. In both situations, so whichever of

7 these situations applies, when we discuss accepting or ratifying the

8 conventions by Croatia, this obviously was not the case, because this

9 happened only in May, 1992, and bearing in mind the possibility that there

10 could have been a special agreement between the parties, we might, with

11 reservations, speak of the time covering the last part of the period

12 covered by the indictment against our client.

13 I do not wish to go into these arguments any further at this

14 point. I would simply like to add that I feel it is important to mention

15 that at this time, the Republic of Croatia did not fulfil the requirements

16 which were necessary, either under the declarative or the constitutive

17 principle, to be considered a principle entering into the domain of

18 international humanitarian law. I am referring only to the last three

19 months of 1991.

20 I would like to mention another point, and it refers to the

21 response given by the Prosecution to our motions with regard to the

22 applicability of the Additional Protocols. If we look at this from the

23 point of view of the succession of the various states, the Tribunal -- and

24 I will not go back to the Tadic case and the Blaskic case, I will not

25 quote them now -- the applicability of the protocols was never linked to

Page 84

1 the fact of the succession but only to the other aspects I have just

2 mentioned, which I will not repeat now.

3 Let me simply add that the idea that succession can be a basis for

4 applicability cannot be valid for two reasons, the first of these being

5 the reason I have just mentioned, and that is that the Republic of Croatia

6 did not at the relevant time fulfil the requirements of being bound by

7 these instruments of international humanitarian law, and the second aspect

8 is that the protocols are not something that is applicable on the basis of

9 the existence of succession. And with all due respect, the Defence

10 considers that arguments can be found for this in the jurisprudence of

11 this Tribunal.

12 If you will allow me, I would now like to touch upon the issue of

13 the residue nature of Article 3 of the Tribunal's statute. It is

14 superfluous to mention that in the Tadic appeal, it was clearly stated

15 what the legal nature of Article 3 is. I will try to slow down.

16 In the Tadic appeal decision, I think that the nature of Article 3

17 was clearly described and that it is a residual clause. As far as I

18 understand it, apart from those violations of international humanitarian

19 law which are listed in Article 3, it also covers violations not covered

20 by other articles of the Tribunal's statute. We have a situation here

21 where the criminal offence of which our client is charged appears as an

22 offence he is held responsible for under Article 3, so we need not go any

23 further than the first count of the indictment against Pavle Strugar, in

24 which he is charged with murder.

25 We believe that charging on the basis of Article 3, and bearing in

Page 85

1 mind the residual quality of Article 3 and also bearing in mind the fact

2 that there are adequate possibilities or provisions in other applicable

3 Articles of this Tribunal, we believe that it is wrong, it has been an

4 incorrect interpretation of Article 3, and we believe the Prosecution had

5 the possibility to charge our client -- of course, if it had enough

6 evidence -- in some other way but not on the basis of Article 3,

7 considering that for the criminal offence of murder, let us not go any

8 further, there are other possibilities, other articles, under which he

9 could have been charged.

10 Why is the principle of the residual being abused in this way?

11 Why would any criminal offence in the jurisdiction of this Tribunal in

12 Article 2 and 4 and 5, that it is on this basis that they could then be

13 under Article 3, and it is in this way that it is in this indictment it

14 would then be proceeded.

15 Yes. I apologise again.

16 So we do not believe that this is a crucial matter, but if we want

17 to have full legality and also holding on to the principles of the

18 decisions of Trial Chambers and Appeal Chambers of this Tribunal, then we

19 believe that this is inadequate.

20 At the end, with your leave, I would also like to talk of

21 cumulation as this was expressed. I believe that this is a

22 misunderstanding between the parties, but I would like to explain it, try

23 and explain it. We believe that in this case, we do not have the

24 circumstances of cumulation as we had in other cases before the Tribunal.

25 So, for instance, the case of cumulation, for instance, where there were

Page 86

1 two counts of the indictment, where there were the same offences within

2 the same count, based on one incident, on one event, which, as it is

3 claimed by the one who issued the indictment in this case, this is not --

4 this is not in dispute. This has been decided by chambers. But we would

5 like to point to the situation that within the same count, within the same

6 count of the indictment, there is a possibility that it could be resolved

7 in two different ways. For instance, in counts of the indictments -- and

8 I do not have it before me here -- but I think these are Counts 3, 6 and 9

9 and Article 51 of the Additional Protocol I and of the Protocol II, they

10 are in the same counts of the indictment.

11 So my question would be: How can the Trial Chamber make a

12 decision at some later stage of the proceedings based on this count of the

13 indictment if it contains two material legal standards that are exclusive,

14 that exclude each other? They have the same substance but the formal

15 conditions for their applicability are diametrically opposed. Simply,

16 they cannot stand in the same count of the indictment.

17 Now, I do not know whether Your Honours think that it is necessary

18 for me to speak about the form of the indictment. I would like to just

19 say a few things, but of course, I will do it with your leave and whether

20 -- if you can tell me whether I can do it now, whether anything that I

21 have just said has -- is interesting for the Prosecution and whether they

22 have a reaction to what I just said.

23 JUDGE LIU: Well, you may continue to finish your statement,

24 including the matters concerning of the form of the indictment. Yes,

25 please.

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1 MR. PETROVIC: [Interpretation] Thank you, Your Honours.

2 Speaking of the form of the indictment, again I will be brief.

3 What is important, what I'd like to stress, is the Defence's understanding

4 of General Strugar is what we have before us is the indictment, very much

5 lacks in terms of standards of the International Tribunal, which already

6 has its profile in the way that people can be indicted.

7 I wouldn't go any further. I can just go to the case of

8 Prosecutor versus Slobodan Milosevic, which was also in our motion, in our

9 submission. Now, the degree of details and all the information that are

10 contained in the indictment, in the so-called Bosnian indictment against

11 Slobodan Milosevic cannot even be compared to the quantity and the volume

12 of the information in the indictment against our client. I do not have to

13 underscore any further that in case, if there is an argument in this --

14 for this difference in the volume or the information, the fact that how --

15 depending on how high someone is the Hierarchy, if that is the argument,

16 why the accused Strugar is given fewer details, less information,

17 regarding the charges made against him, then certainly the accused

18 Milosevic is very much higher up and has been given many more pieces of

19 information that, of course, make it possible for him to prepare his

20 Defence a lot more thoroughly.

21 Also, very briefly, I would like to speak of some matters that are

22 in some other cases also similar to our case. For instance, in Prosecutor

23 versus Talic. The indictment versus General Talic has details and

24 information that make it possible for his Defence to be fully prepared, or

25 prepared to a higher degree. We can look at the indictment against

Page 89

1 General Talic where it has been listed and described in great detail,

2 including the defined area of responsibility of his corps and the units

3 that are listed as part of his corps.

4 What has also been listed in this indictment is also the

5 facilities that were damaged, the towns that were attacked, and so on and

6 so forth. I would like to give one example: For instance, in the

7 indictment in paragraph 30 against General Strugar, it says that six

8 buildings were destroyed. We're talking about the town of Dubrovnik.

9 Now, we are talking that this town where every building has its name.

10 This is an old historic town. We know where every building is in every

11 street. It is very important to say what exactly was targeted, how, when,

12 and what is the extent of the damages, of course, if that is possible, in

13 the proper form in the indictment, as it should be.

14 There's just one more thing to say, that in the indictment against

15 Pavle Strugar, there is also a more specific, more concrete part which

16 relates to individual offences. And it also has a detail of -- details of

17 what the functions he had. But among others, it says what exactly

18 happened -- what allegedly happened and what allegedly Mr. Strugar was.

19 There is a large gap. This gap should have been filled to give proper

20 information on individual responsibility of Mr. Pavle Strugar relating to

21 Article 7 of the Statute. And the Prosecutor didn't offer us anything

22 else, trying to establish this link, this connection, between these

23 individuals, specific events, which, as it says, happened in Mokosvica and

24 also the responsibility of the accused.

25 It doesn't do anything else but incorporating word for word of

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1 Article 7 of the statute without giving any additional explanation what

2 his responsibility was, not giving it one word. The only thing that the

3 Prosecutor does is taking the text of the statute, incorporating it, not

4 trying to give any details as to what the individual criminal

5 responsibility of our client is.

6 I hope that I have given you some of the arguments in relation to

7 both parts of the indictment. And if the Prosecution has any questions,

8 it will be my pleasure to answer these. Thank you very much.

9 JUDGE LIU: Thank you.

10 Now, could I turn to the Prosecution.

11 MS. SOMERS: Thank you, Your Honour. If I may, before I turn the

12 jurisdictional issue over to Ms. Lamb, and subsequently the form over to

13 Mr. Scaliotti, I would like to remind the Chamber that in our initial

14 response, we did indicate that we would be seeking leave to amend. There

15 were particular points that this indication was connected to, and some of

16 the points will be, which we effectively have conceded, will be

17 addressed. We do, of course, stand on our responses otherwise, but it may

18 be helpful to have them fleshed out a little bit in terms of the form by

19 Mr. Scaliotti.

20 And at this point, if I may offer Ms. Lamb to respond on the

21 jurisdictional questions. Thank you.

22 JUDGE LIU: Yes.

23 MS. LAMB: May it please the Court, Your Honours, my submissions

24 respond to the Defence arguments pertaining to jurisdiction. In

25 particular, the Defence has alleged today that this Tribunal lacks

Page 91

1 jurisdiction over the offences of attacks against civilians and civilian

2 objects recognised by Articles 51 and 53 --

3 THE INTERPRETER: Counsel, slow down, please.

4 MS. LAMB: Of the Additional Protocol I and Additional Protocol

5 XIII of Additional Protocol II. This is on the grounds, amongst other

6 things, firstly, that they alleged that the additional protocols did not,

7 during the indictment period, bind the parties to the conflict as a matter

8 of treaty law. And secondly, that the norms in question did not at the

9 relevant times form part of customary --

10 THE INTERPRETER: Could you please slow down, counsel.

11 MS. LAMB: I apologise, Your Honours, and to the translation.

12 My submissions, Your Honours, will respond to both of these

13 arguments. First, I will contend that the additional protocols were

14 during the indictment period binding upon the parties to the conflict as a

15 matter of treaty law. The principal contentions of the Defence to the

16 contrary appear to be two-fold: Firstly, that as the Blaskic Trial

17 Chamber decision did not refer to any notion of state succession to the

18 additional protocols, that no such doctrine is cognisable before this

19 Trial Chamber. And secondly, that succession could not have taken place on

20 the grounds that Croatia was not a state.

21 Secondly, my submissions will address the issue of the customary

22 international law status of these two armed prohibitions. This argument

23 will run in the alternative; that is, on the assumption that this Trial

24 Chamber does not find the additional protocols to be in force at the

25 relevant times, and for the arguments which I will forthwith outline, I

Page 92

1 would strongly resist such an interpretation being adopted. But in the

2 event that it was, it is our submission that such fundamental bedrock

3 norms of international humanitarian law were, in any event, unambiguously

4 customary in their status by the time this conflict broke out.

5 I will refer also to our written pleadings simply in passing to

6 submit that contrary to the submissions of the Defence, that the

7 jurisprudence of this Tribunal has not adequately addressed the scope of

8 Article 3 of the Tribunal's statute. I will refer Your Honours simply to

9 the Tadic jurisdiction decision of the Appeals Chamber of 1995 where the

10 Appeals Chamber conclusively determined that the customary

11 international law applicable to all armed conflicts under Article 3 of the

12 Tribunal statute included, at a minimum, the protection of civilians from

13 hostilities, in particular, from indiscriminate attacks and the protection

14 of civilian objects. It is conceded, Your Honour, that such a finding did

15 not refer in any great specificity to the additional protocols, but it is

16 nevertheless a fairly strong statement of law from our Appeals Chamber as

17 to the appropriateness of such charges before a Tribunal of this nature.

18 To the extent Your Honours wish to be reassured as to the

19 applicability of the additional protocols as a matter of treaty law, I

20 will therefore proceed to the second line of argument with regard to the

21 treaty law status of the additional protocols. Our learned friends on the

22 Defence seem to struggle greatly with the concept of state succession to

23 international treaties. It is for this reason that I propose in my oral

24 arguments to briefly summarise the basis of our submissions as to why the

25 additional protocols to the Geneva Conventions were applicable as a matter

Page 93

1 of treaty law at the outset of the indictment period.

2 At the outset, the Prosecution notes that the Socialist Federal

3 Republic of Yugoslavia, the so-called SFRY, had been a party to the two

4 additional protocols since 1979. Following the dissolution of the

5 Socialist Federal Republic of Yugoslavia, the principles of international

6 law which govern the effects of state succession upon the continuation of

7 treaty obligations had two consequences: Firstly, the various breakaway

8 republics in the region succeded to these treaties upon their becoming

9 independent.

10 Secondly, prior to the FRY's coming into existence, the additional

11 protocols remained in effect in those parts of the territory of the SFRY

12 which corresponds to the modern-day FRY. The result of these twin

13 principles, Your Honour, is to provide for a continuous application, as a

14 matter of treaty law, for the additional protocols to the entire territory

15 of the Socialist Federal Republic of Yugoslavia. Your Honours, it could

16 scarcely be otherwise. On a humanitarian instrument of this nature, were

17 customary international law to admit a regime whereby the vicissitudes of

18 state secession would create gulfs or gaps in the temporal application of

19 international humanitarian instruments, such a regime would very quickly

20 become defunct.

21 Your Honours, if I may turn now to the specific international

22 legal instruments which govern the principles of state succession in

23 respect of treaty obligations. The relevant instrument, Your Honours, is

24 the 1978 Vienna Convention on the succession of States in respect of

25 Treaties. In particular, Article 34 is the most relevant provision, and I

Page 94

1 will quote it at length: It states, Your Honours, that "When a part or

2 parts of the territory of a state separate to form one or more states,

3 whether or not the predecessor state continues to exist, any treaty in

4 force" --

5 THE INTERPRETER: Counsel, could you slow down, please.

6 MS. LAMB: -- "any treaty in force at the date of succession of

7 states in respect of the entire territory of the predecessor state

8 continues in force in respect of each state so formed."

9 The Prosecution acknowledges that at the time in question, at the

10 time the conflict in Croatia broke out, the 1978 Vienna Convention on the

11 secession of states was not in force. In came into force only in October

12 1996. Therefore, formally, it was inapplicable to these instances of

13 state secession. However, what is revealing, Your Honours, is the extent

14 to which this principle is embodied within customary international law.

15 Indeed, our own Appeals Chamber, Your Honours, has confirmed this in the

16 Celebici decision.

17 What is more, there is considerable state practice to suggest that

18 at the moment of state secession, the assumption of treaty obligations by

19 the seceding state is automatic. And this is particularly true,

20 Your Honours, of the states of the former Yugoslavia. Perhaps most

21 relevant for our purposes in this regard is the Arbitration

22 Commission implemented by the European Community in August 1991, the

23 so-called Badinter Commission, which noted that all former Yugoslav

24 republics agreed that these were the principles which should be the

25 foundation for discussions between them and the successor states.

Page 95

1 Your Honour, what effect do these principles have in relation to

2 the jurisdiction of this Tribunal in the instant case? In this regard,

3 Your Honours, I have two principal submissions: The first is that with

4 regard to Croatia, Croatia became a party to the additional protocols by

5 succession as of the 8th of October, 1991.

6 That is, their effective date of independence.

7 Our learned friends challenge this submission on the grounds that

8 in their view, at this date, the state of Croatia had not met the legal

9 requirements of statehood in order to become a subject of international

10 law. Your Honour, I refer simply in this regard to our written

11 submissions which state at length the objective criteria of statehood

12 under customary international law, and I do not propose to reiterate them

13 here.

14 I would, however, caution Your Honours against entering into the

15 slippery slope of debating in particular when the state of Croatia came

16 into existence. Certainly, when one looks closely at the four indicia of

17 statehood which are set forth in the Montevideo convention -- that of a

18 permanent population, a defined territory, a government and a capacity to

19 enter into legal relations -- one could similarly question many

20 states in the world. Moreover, even our learned friends on the Defence

21 appear to concede that the moment at which the European Community was

22 prepared to recognise the state of Croatia, statehood would unambiguously

23 exist at this point. I would caution Your Honours against such a ready

24 assumption that the mere act of recognition could constitute a nation's

25 statehood in a way that its own declaration of independence could not.

Page 96

1 In particular, in a situation of interethnic conflict with the

2 consequent breakdown of a pre-existing state entity, it is normal, albeit

3 self-serving, a form of belligerance to dispute the legality of an

4 attempted succession. Also to confer upon states recognising new entities

5 the power to call into existence or otherwise independent sovereign states

6 is an extremely dangerous principle of the international community. Thus,

7 the Prosecution reiterates its submissions contained in the written briefs

8 as to Croatian statehood as of the 8th of October, 1991. It is therefore,

9 Your Honour, this date at which Croatia can be said to have succeeded to

10 the Additional Protocols.

11 With regard to the FRY, Your Honour, the situation is somewhat

12 different. Until very recently, the FRY did not appear as

13 listed to any party of any multi-lateral treaty instrument. Instead, the

14 phrase "Yugoslavia" generally subsisted. This appeared, Your Honours, to

15 be in line with the application of the continuity, or at least the claimed

16 continuity of the FRY, as the legitimate successor to the SFRY. This

17 approach, political as it may be, was reflected also in the approach of

18 the FRY to succession to treaty obligations, where the FRY would routinely

19 and enthusiastically declare its willingness to strictly abide by all

20 commitments that the Socialist Federal Republic of Yugoslavia assumed

21 internationally. Very recently Your Honour, the FRY appears to have

22 changed its practice, that practice being, Your Honours, simple de facto

23 continuance of the obligations assumed by its predecessor, and it has

24 recently come to the attention of the Prosecution, indeed since the filing

25 of the written pleadings, that the FRY, contrary to its practice to date,

Page 97

1 has, in fact, since lodged an instrument of succession to the Additional

2 Protocols to the Geneva Conventions. This instrument was lodged on the

3 16th of October, 2001. The FRY, in this instrument, Your Honours,

4 declared the Additional Protocols -- declared that the FRY had succeeded

5 to the Additional Protocols on the 27th of April, 1992.

6 The effect of this, Your Honours, however, is not to create a gap

7 in the applicability of the Additional Protocols as of between 8th of

8 October, 1991, and the 27th of April, 1992. The Prosecution submits that

9 in this interim period, the obligations of the territory corresponding to

10 the modern FRY in fact continued on the basis of the SFRY's signature to

11 the Additional Protocols in 1979.

12 Moreover, this may be an appropriate juncture to contest one of

13 the underpinnings of the Defence's submission, namely the idea, the

14 notion, that this Tribunal can have -- can take jurisdiction over offences

15 contained in the Additional Protocols only at the point that both parties

16 may -- at the point at which both parties may be said to be state parties

17 to the Additional Protocols.

18 Implicit in this notion, Your Honours, is the idea of

19 reciprocity. Reciprocity, Your Honours, is however, alien to this body of

20 law. The obligations upon all states under the Additional Protocol to

21 ensure compliance with the most fundamental tenets of international

22 humanitarian law are in no way whatsoever dependent upon whether or not

23 other states may be so bound or whether, in fact, these other states so

24 comply.

25 Secondly, such a notion of reciprocity is superfluous when one

Page 98












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Page 99

1 considers the effect of the regime of state succession. The effects of

2 this regime is to ensure, as mentioned previously, a continuous

3 application of the treaty regime created by the Additional Protocols

4 across the entire territory of the former SFRY during the period in

5 question. Indeed, the Appeals Chamber in the Celibici decision similarly

6 found that pending notification of succession, the operation of treaties

7 of a fundamentally humanitarian character shall not be suspended.

8 Accordingly, Your Honours, the Prosecution submits that at the

9 outset of this conflict, the Additional Protocols bound both parties to

10 the conflict as a matter of treaty law. As such, this Tribunal has

11 jurisdiction over these offences. Our written pleadings, Your Honour,

12 also, on a supplementary basis, refer to a number of special agreements in

13 force at the time which would have rendered these provisions applicable

14 inter partes. Unless this Trial Chamber has particular questions in

15 relation to them, I will propose to proceed with my next submission.

16 Your Honour, I turn now to the customary international law status

17 of the unlawful-attack charges contained in the present indictment. We

18 submit that in the event that the Trial Chamber finds the Additional

19 Protocols are not in force as a matter of treaty law --

20 THE INTERPRETER: Could the counsel please slow down if you're

21 reading. Thank you very much.

22 MS. LAMB: I apologise, Your Honour. If the Trial Chamber is to

23 find at this juncture that the Additional Protocols were not in force as a

24 matter of treaty law, we submit that such a finding would not affect the

25 jurisdiction of this Tribunal. This is on the basis that the prohibitions

Page 100

1 in question had, by the date in question, unambiguously formed part of

2 customary international law. Your Honours, Article 3 of the Statute

3 grants you jurisdiction under both norms and customs of international --

4 of the laws of war, essentially. So whether the prohibition in question

5 is treaty-based or customary has no bearing on the jurisdiction of this

6 Tribunal.

7 Again, Your Honours, there is nothing sinister about the fact that

8 the Blaskic Trial Chamber decision did not pronounce upon the customary

9 international law status of the Additional Protocols. It simply reflects

10 the fact that they did not have to. It is indeed true that this Tribunal

11 has in general been cautious and conservative about making blanket

12 pronouncements as to the customary international law status of the

13 Additional Protocols. Once again, Your Honours, it is because, by and

14 large, it has not had to. The relevant instruments in question have

15 usually been found -- have, in fact, without exception been found -- to be

16 applicable on the basis of treaty law. Should Your Honours, however, wish

17 to consider the supplementary argument as to the customary international

18 law status of the unlawful-attack charges contained in this indictment, we

19 submit that these norms were unambiguously part of customary international

20 law. This is so on the following basis.

21 As set forth by the International Court of Justice in the North

22 Sea continental shelf cases, the learned justices in

23 this case, upheld that proof of a norm of customary international law

24 requires two elements. The first is an objective element; that is state

25 practice; moreover state practice which is consistent and virtually

Page 101

1 uniform. Secondly, customary international law requires a subjective

2 element, the so-called opinio juris, that is a consciousness on the part

3 of states that they are undertaking the conduct in question out of a

4 conviction that it amounts to a legal obligation. Although treaty law and

5 customary international law are distinct sources of international law, the

6 two in fact have a very dynamic relationship. Indeed, a norms embodiment

7 in a multi-lateral treaty such as the Additional Protocols, a treaty which

8 could be said to have a fundamentally norm-creating character, to cite the

9 language of the International Court of Justice, assists in the so-called

10 crystallisation of such norms into international custom.

11 The Prosecution notes that the Additional Protocols enjoy

12 widespread signature and support among states parties. Out of a total of

13 189 states in the international community -- or rather who are members of

14 the United Nations -- 159 of those states are now parties to Additional

15 Protocol I and 152 are parties to Additional Protocol II. It is conceded,

16 Your Honours, however, that despite such widespread signature and

17 ratification, a number of significant states have chosen to remain outside

18 the regime of the Additional Protocols, and these states include

19 significant states such as the United States, and the United Kingdom, who

20 at that time was not a party although has since become a party, and

21 France. As a result, it would be difficult for a serious scholar of

22 international law to argue that the Additional Protocols have, in their

23 totality, become customary international law in their status.

24 However, such a proposition has to be dissected very carefully,

25 Your Honours, for there would be certain aspects of the Additional

Page 102

1 Protocols which are unambiguously customary even if the instruments as a

2 whole are not. It is submitted that those prohibitions found in Articles

3 51 and 13 are exactly such bedrock norms. Indeed, even at the time of

4 adoption of the Additional Protocols, the travaux preparatoires of those

5 conventions acknowledged that these -- all these instruments really did

6 was embody pre-existing custom.

7 What is more, one may look to subsequent state practice to

8 interpret the subsequent effects of the adoption of such provisions.

9 THE INTERPRETER: Counsel, please slow down.

10 MS. LAMB: I apologise once again, Your Honour. I do seem to be

11 having a problem with speed.

12 Your Honours, I refer your attention to negative practice within

13 the international community, and in this respect it is significant that no

14 state has ever, whether they are parties to the Additional Protocols or

15 otherwise, claimed a right to attack civilians.

16 Secondly, contrary practice, that is allegations civilians have

17 come under attack have been met with nothing but widespread condemnation,

18 which is a very far cry from an allegation that such a norm may not

19 reflect customary international law.

20 Finally, Your Honours, if it would assist the Trial Chamber in

21 evaluating the content of customary international law with regard to the

22 Additional Protocols, what I would propose to do is to refer Your Honours

23 to the military manuals, that is an example of state practice, of two

24 states who are non-signatories to the Additional Protocols, in particular

25 during the Gulf conflict of 1991. I propose to do this for two principal

Page 103

1 reasons.

2 Firstly, the Gulf conflict is a contemporaneous conflict with the

3 incidents in question. Secondly, at the time, both the U.S. and the U.K.

4 were non-state parties to the Additional Protocols. Therefore, the

5 content of their military manuals at such a period reflected these states'

6 understanding as to the content of general or customary international

7 law.

8 Your Honours, such a review of state practice at this period

9 reveals that even these two states who had chosen not to become parties to

10 the Additional Protocols, clearly envisaged the prohibitions contained in

11 Articles 51 and 13, to form part of customary international law. I quote

12 in this regard Article 13 of the U.K. military manual which stated that it

13 is a generally recognised rule of international law that civilians must

14 not be made the object of attack directed exclusively against them.

15 An almost identical statement is contained, Your Honours, in the

16 United States army field manual at paragraph 25.

17 In addition, and as is referred to extensively in my written

18 pleadings, further support for the customary law status of these

19 prohibitions can be found in decisions of the International Court of

20 Justice in particularly the -- in particular the advisory opinion on the

21 legality of nuclear weapons.

22 These prohibitions have also subsequently been endorsed by the

23 Statute of the International Criminal Court which represents a very

24 significant and very recent statement of the opinio juris of a significant

25 number of member states.

Page 104

1 To summarise, Your Honours, it is therefore undisputable that

2 irrespective of the treaty law status of the Additional Protocols, the two

3 prohibitions that are embodied in Counts 3, 7, 9 and 11 of the

4 present indictment are customary international -- are customary in their

5 status. As such, on this limb as well, this Trial Chamber would have

6 jurisdiction over such charges.

7 I propose very briefly, Your Honours, and in summary, to address

8 the issues raised by my learned friends as to the cumulative character of

9 charges under Article 3 and Article 2, and their submissions that the

10 residual quality of Article 3 has been misunderstood.

11 Your Honours, in this regard, we stand by our written pleadings

12 wholeheartedly. I would at this juncture make simply three closing

13 observations. Firstly, our learned friends have adopted a misleading

14 interpretation of the notion of a residual provision. That is to say,

15 simply because Article 3 of the statute may be residual in quality does

16 not preclude the Prosecution from bringing charges under alternative

17 articles of the Statute. Secondly, their contention that other articles

18 of the Statute simply supplant or are perfect alternatives for charges

19 under Article 3 is frequently misplaced. In fact, the example they have

20 given today, that of murder as a grave breach of the Geneva Conventions,

21 is in no sense an analogue to an unlawful-attack charge brought under the

22 additional protocols.

23 For example, in order to --

24 THE INTERPRETER: Counsel, you're going far too fast. The

25 interpreters have great difficulties following you.

Page 105

1 MS. LAMB: For example, Your Honours, in order to sustain a grave

2 breach conviction under Article 2 [A] of our statute, it would have to be

3 established that the victims were in the hands of a party to which they

4 were not nationals. This assumes a degree of proximity between the victim

5 and the perpetrator. By contrast, an unlawful attack charge could be

6 brought in relation to a bombardment carried out from a distance. Thus,

7 Your Honours, the unique statutory scheme of this Tribunal has a degree of

8 logic to it that has not been disregarded by the way in which this

9 indictment has been put together.

10 Finally, the Defence appears to have confused the notion of

11 cumulative charging with cumulative conviction. At the charging stage,

12 Your Honour, and as clearly set forth in the Celebici appeals decision, we

13 are at liberty to bring alternative or cumulative charges under numerous

14 different provisions of the statute. It is simply at the conviction stage

15 that decisions as to subsumption [phoen] or survival of certain of those

16 convictions will have to be made.

17 In summary, Your Honours, it is our submission that the Defence

18 contentions regarding the supposed lack of jurisdiction of this Tribunal

19 must be rejected. The additional protocols are binding upon the parties

20 to this conflict as a matter of treaty law; and in any event, the core

21 prohibitions which they embody which form the basis of charges in this

22 indictment were unambiguously customary. Furthermore, Your Honours, we

23 note that the issue for determination at this stage, at this pretrial

24 stage, is simply a jurisdictional one, and it boils down simply to whether

25 or not the indictment is properly pleaded. Although we submit that this

Page 106

1 Tribunal has unambiguous jurisdiction over all violations of the laws and

2 customs of war, to the extent that the Trial Chamber may have residual

3 concerns as to the scope of these prohibitions or their content, we submit

4 that this is for proper resolution at trial. At this point, it suffices

5 merely to note that these charges were properly brought and that the

6 indictment is, therefore, correctly pleaded.

7 Your Honours, unless there are any further questions, this

8 concludes my submissions.

9 JUDGE LIU: Thank you.

10 MS. LAMB: At this point, Your Honours, I will cede the floor to

11 my colleague, Mr. Scaliotti, who will address the Chamber on submissions

12 regarding defects in the form of the indictment.

13 JUDGE LIU: Yes, please.

14 MR. SCALIOTTI: Your Honours, I will address shortly the

15 objections raised today by the Defence as to the form and specificity of

16 the indictment. It is the Prosecution's submission in this respect that

17 the indictment in the instant case is fully in accordance with the law and

18 the jurisprudence of this Tribunal. In fact, the joint reading of the

19 basic provisions, namely, Article 18.4, Article 21.4 [A] of the ICTY

20 statute and the Rule 47 [C], makes it clear what is the purpose of an

21 indictment. An indictment must provide the concise statement of facts

22 underlying the charges in order to allow the accused to understand the

23 nature and cause of the charge against him. It is the Prosecution's

24 submission that in the instant case, the indictment against the accused

25 Strugar fully complies with this requirement.

Page 107

1 Moreover, I would like to draw your attention to one of the basic

2 principles as to the specificity of the indictment, which is the fact that

3 as established by several Trial Chambers of this Tribunal, the degree of

4 specificity required by an indictment mostly depends on the proximity of

5 an accused to the crimes charged. In other words, information such as the

6 identity of the victims, date and place of events, the description of the

7 events themselves depends mostly inter alia on the proximity of the

8 accused to the crimes. Therefore, in a case where the accused is charged

9 with having personally commit -- with having personally perpetrated the

10 crimes, more specificity, more precision is requested. But in a case

11 where the accused is not charged with having physically perpetrated the

12 crimes, less specificity as to the crime base is requested. The Appeals

13 Chamber in the Kupreskic [phoen] case reiterated this principle; in

14 particular, it was established that a high degree of specificity cannot be

15 requested in broadbased cases.

16 The Defence extensively refer to the Milosevic indictment. In

17 this respect, we would like to point that the detailed information that

18 somehow can be found in the Milosevic indictment is taken from indictments

19 concerning other cases which are narrow in scope and which, by

20 consequence, require more precision, more specificity, as to the crime

21 base. Moreover, again, referring to the Milosevic case, the Defence is

22 requesting, for instance, the manner of the attacks, the attack direction,

23 the specific description of the circumstances under which the attacks were

24 carried out. These are matters for determination at trial. It is

25 established, again, by the Appeals Chamber, there is a clear distinction

Page 108

1 between the material facts and the evidence. On the one hand, the

2 material facts underpinning the charges must be pleaded in the indictment;

3 whereas the evidence by which such material facts are to be proven is to

4 be adduced later on at trial at further stages.

5 One more reference made by the Defence to the Milosevic indictment

6 concerns the identity of accomplices and coperpetrators. The Prosecution

7 would like to submit in this respect that the indictment gives sufficient

8 information in paragraphs 9 and 10, and we would like to focus on the fact

9 that this is a military case in which four co-accused within the same

10 chain of command are charged with having jointly committed the crimes

11 alleged. On the contrary, the names given in the Milosevic indictment are

12 the names of the members of a joint criminal enterprise. In the instant

13 case, joint criminal enterprise, on the contrary, is not a mode of

14 liability pleaded by the Prosecution.

15 As to the specification requested by the Defence as to the damaged

16 buildings, the Prosecution submits that a concise statement of facts of

17 the case by definition does not include such detailed information. And

18 I'm referring here to the recent decision given by the Trial Chamber in

19 the Ademi [phoen] Case where because of the vast amount of property

20 allegedly destroyed, the mere indication of villages and areas where the

21 incidents occurred was held to be sufficient.

22 Finally, as to the course of conduct of the accused, the

23 Prosecution reiterates that the course of conduct of the accused is

24 sufficiently set forth in the indictment. By reading the indictment, the

25 role played by the accused is made quite clear. Through his position of

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Page 110

1 command over the forces forming the 2nd Operational Group, the accused

2 planned, instigated, ordered, committed, aided and abetted in the

3 execution of a military campaign which involved and included the

4 commission of the crimes alleged in the indictment by the forces under his

5 command. More information goes to evidence which is to be adduced later

6 at trial.

7 Thank you.

8 JUDGE LIU: Thank you very much. The Trial Chamber would like to

9 thank the both parties for their statements.

10 Now is the moment for the Judges to ask some questions. Could I

11 ask a question first.

12 My question is directly addressed to Defence counsel. In your

13 submissions concerning the international customary law, do you mean the

14 prohibitions which is embodied in the Article 51 and 52 of the Protocol I

15 and Article 13 of the Additional Protocol II, or do you mean the two

16 additional protocols in its totality are not the international customary

17 law?

18 MR. PETROVIC: [Interpretation] Your Honour, with your leave, my

19 response will be as follows: Formally, strictly formally speaking, the

20 additional protocols are legal regulations which are not applicable in

21 this situation. The prohibitions contained in the additional protocols

22 are something that in general does fall under the jurisdiction of this

23 Tribunal; however, we try to focus exclusively on the legal norm

24 incorporated in the appropriate counts of the indictment.

25 I hope this clarifies the matter.

Page 111

1 JUDGE LIU: Thank you.

2 Yes, Judge Orie.

3 JUDGE ORIE: I have a few questions, especially to Defence

4 counsel. Mr. Petrovic, you explained to us that Croatia was not a state

5 at the time relevant to the indictment. So there was no state of Croatia

6 which was a party to the conflict. Could you tell us whether you consider

7 there was no conflict, or whether there was a conflict in which one state

8 was involved? Who were the parties to the armed conflict, in the view of

9 the Defence, of course?

10 MR. PETROVIC: [Interpretation] Your Honour, I will attempt to

11 respond to some of the questions you have put. In our view, what is the

12 Republic of Croatia today did not at that time fulfill the requirements

13 which would be necessary for it to undertake the obligations and duties

14 from the Geneva Conventions and the additional protocols. Croatia was not

15 internationally recognised at the time, which is one aspect of the issue.

16 Another aspect of the issue, if we were to go into details, would be that

17 what is the Republic of Croatia today did not control about 40 per cent of

18 its territory at the time. So if we were to view the matter from that

19 aspect, this would not be so.

20 We will probably arrive at a common understanding that there was

21 an armed conflict at the relevant time, but we will strenuously challenge

22 whether this was an international armed conflict. And it is from this

23 fact that we draw the conclusions we have tried to present to you today.

24 With your leave, although this means entering into facts, and I

25 would not like to burden the Chamber with that now, but one of the

Page 112

1 possible interpretations of what happened on the territory we are speaking

2 of, one of the interpretations -- and I am not saying it is the

3 interpretation that will be unreservedly advocated by the Defence at the

4 trial -- however, one view is that this was an armed rebellion on part of

5 the state territory of the state which was the only international subject

6 at the time, that is the SFRY. However, these are facts I would not like

7 to go into now in order not to burden the Chamber with them.

8 JUDGE ORIE: Thank you, Mr. Petrovic. I was asking the question,

9 as a matter of fact, since you stressed very much that Croatia could not

10 be bound, not being a state, by any of the provisions of the Protocols I

11 or II. So therefore, I was wondering who were then the parties in the

12 conflict. And it's the view of the Defence that this was at least not an

13 international conflict, but it was a conflict -- I just don't give any

14 further qualifications -- within the Federal Republic.

15 MR. PETROVIC: [Interpretation] Your Honour, I believe that this

16 interpretation comes closest to the standpoint of the Defence in this

17 matter.

18 JUDGE ORIE: Yes. I have another question for you. You said

19 murder -- and you just gave an example -- could have easily charged under

20 any other provision of the statute of the ICTY. You heard the objections

21 as far as charging under Article 2 of the statute is concerned, the

22 objections of the Prosecution. They explained why they could not just

23 simply charge under Article 2. Could you please tell us, keeping in mind

24 the objections in relation to Article 2, but perhaps also on Article 4 or

25 5, explain to us how the charges could have brought under one of these

Page 113

1 other provisions.

2 MR. PETROVIC: [Interpretation] Your Honour, in our motion and our

3 arguments before the Chamber, we said it was not necessary to do it in

4 relation to Article 3. Article 2, of course, has some other requirements

5 which were put forward very clearly by our learned friend from the

6 Prosecution. However, I will say that it is my impression that the

7 charges brought under Count 1 have been brought under Article 3 rather

8 than Article 5, which was also possible, and would not require other

9 conditions for the bringing of the charges. And I think that this was

10 done because it was easier to find grounds under Article 3; while in

11 Article 5, where murder is the first offence listed, this is much more

12 complex. And other conditions are required for Article 5 [A] to obtain,

13 if we are speaking of murder.

14 So I believe that this is what is behind this way of charging. I

15 think that it's an attempt to avoid a complex set of conditions which have

16 to be fulfilled in order for someone to be accused of the crime of

17 murder. And this has been stated very eloquently with regard to Article 5

18 in the Tribunal jurisprudence. This is why, in my view, the charges were

19 brought under Article 5, because the standards of proof and the character

20 of proof required are more easily met under Article 3 than under

21 Article 5. This is offensive, both to the ideas guiding those who drew up

22 the statute and to those who have already made decisions in the

23 jurisprudence of this Tribunal.

24 JUDGE ORIE: I'm trying to understand you. If you say that you

25 couldn't meet the standard of proof in respect of certain elements

Page 114

1 required under Article 5 to obtain a conviction, you'd say you have to

2 choose the difficult way with a perfect expectation of failing to meet

3 these standards, and that you would not be allowed to charge under an

4 article of which you think you can meet the standards of proof since they

5 require less elements to be proven. Is that what you explained to us?

6 I mean, I'm trying to understand what we would have to understand

7 with "residual." Isn't that if not one of the other articles could be

8 proven, if not all the requirements put by the other articles could be

9 proven to have existed, that you would then rely upon an article which

10 asks proof of less requirements? I'm not quite following your explanation

11 of why you should charge something you think you couldn't prove.

12 MR. PETROVIC: [Interpretation] Your Honour, I will try to respond

13 as follows: The Tribunal statute very clearly prescribes or provides for

14 an article under which murder is listed. This is Article 5 of the

15 statute, 5 [A].

16 And I see no reason, except for the ones I have tried to set out,

17 for bypassing what has very clearly been put into the Statute of the

18 Tribunal, and this is the essence of my objection. If the Statute and the

19 practice of this Court has set high standards of proof for the crime of

20 murder, then these standards, under Article 5[A] of the Statute, may not

21 be lowered, if this is so, of course, and subsumed under a residual

22 clause. I feel that I have been sufficiently clear and that I have

23 responded to your question, but if not, please put the question to me

24 again, because I am afraid that due to the speed of my delivery, parts of

25 what I say may be lost in interpretation. So I ask you, please, to ask me

Page 115

1 again, if necessary.

2 JUDGE ORIE: Yes, I'll ask you again. Let's say if a murder which

3 was not a part of a widespread or -- and/or systematic system would have

4 occurred, you'd say simply because the word "murder" is in Article 5, even

5 if these specific elements to make murder a crime against humanity are not

6 met, nevertheless, you may not indict it as a war crime but you should

7 indict it as a crime against humanity? Is that what you are saying?

8 MR. PETROVIC: [Interpretation] Your Honour, I am trying to

9 interpret, perhaps too freely, the idea of the creators of the Statute,

10 the fundamental document of the Tribunal. In my understanding, this is

11 what it was. Of course, it does not mean that the crime of murder should

12 go unpunished, but the jurisdiction of this Tribunal, in my view, as far

13 as murder goes, is limited to Article 5[A]. Of course, every murder has

14 to be investigated and punished, but this is something that is beyond the

15 jurisdiction of the Tribunal before which we stand today.

16 JUDGE ORIE: Thank you for your answers, Mr. Petrovic.

17 JUDGE EL MAHDI: [Interpretation] Yes, counsel, I would like to ask

18 you a question, please, along the same line of questioning as my colleague

19 Judge Orie just asked. You said that Croatia, in the period that I'm

20 going to call the critical period, was not a state and that this was just

21 a rebellion which erupted in one region. So this is a region of a state,

22 if I understood it correctly, of the Yugoslav state, where there was one

23 authority which, of course, assumed responsibility, and which was engaged

24 to suppress the rebellion. So the question that I wanted to ask is the

25 following. Say that the state is -- was a signatory to the Additional

Page 116

1 Protocol or the Additional Protocols, so even in the case of a rebellion,

2 isn't the state supposed to respect, and in fact to follow in action, to

3 respect the provisions that we find in the Additional Protocols that are

4 in question? So was that practiced by what would become SFRY or was it

5 another authority that you were talking about?

6 MR. PETROVIC: [Interpretation] Your Honours, with due respect, I

7 would like to answer your question. So I would like the Trial Chamber to

8 -- not to understand that the position of the Defence is that simple,

9 that we are just talking about an armed rebellion and that this was the

10 only thing that we would discuss here. This is a very complex matter and

11 we would like to use a number of different arguments in this direction and

12 also to bring them up in a different way in order to explain what happened

13 at that time in that territory.

14 So I would be very careful in saying that this was just an armed

15 rebellion, that this conflict was just an armed rebellion. There is a

16 number of elements that are to be considered once you make your decision.

17 Now, what our position is is that it cannot be disputed that the SFRY

18 ratified the Geneva Conventions and the Additional Protocols. But our

19 objection is strictly in the context of the indictment. It is the

20 indictment that is talking about the armed conflict between the parties in

21 -- clash between the Republic of Croatia and the -- and Yugoslavia. So

22 if we are talking about Croatia being an entity, we are saying that we are

23 objecting to the fact that this was not a state, it did not have all the

24 attributes of a state, so this is what we tried to explain. So in the

25 context of a conflict between what is today Republic of Croatia and what

Page 117

1 was SFRJ in this context of this conflict, there is no -- there are no

2 Additional Protocols, but of course it is not disputed that the SFRY was

3 obligated by the Geneva Conventions and the Additional Protocols.

4 If it had been the FRY, the Federal Republic of Yugoslavia, if

5 they had said from the 27th of April, 1992, said that they were a

6 successor of the former Yugoslavia and since the changeover of the regime

7 in the FRY, there was a completely different approach to this problem and

8 if it had been a departure from the continuity of the succession and

9 whether the Federal Republic of Yugoslavia was a new subject in the

10 international legal context and whether it was necessary to then start

11 ratification of all the matters and all the treaties and all the

12 agreements and then becoming a member of the United Nations after the

13 change of the regime by the end of the year 2000.

14 JUDGE EL MAHDI: [Interpretation] Yes. Just a brief question.

15 Now, at the time of the events -- and I'm talking about October, December,

16 1991 -- this was the authority, so what you're saying, this was the

17 Yugoslav state which was acting, so the responsible authority was the

18 state responsible authority? Or was it another entity, different from the

19 Yugoslav state, which was a party to this conflict?

20 MR. PETROVIC: [Interpretation] Your Honour, what we are trying is

21 to convince you that between what happened -- what was then the Yugoslav

22 state and what later did become the state of Croatia, and which was, as

23 the -- as his honour judge said, they were in conflict, without qualifying

24 it, in this particular context, this situation, the Additional Protocols I

25 and II were not applicable. This is what we are trying to explain.

Page 118

1 JUDGE EL MAHDI: [Interpretation] Thank you.

2 JUDGE LIU: Judge Orie?

3 JUDGE ORIE: Yes. I've forgotten one question so, if you please

4 allow me, Mr. President, to put this question to Mr. Petrovic again. I'm

5 reading your initial motion which says that the Additional Protocols I and

6 II cannot be in this matter applied to counts 3, 6, 9 and 11, as

7 Additional Protocols do not apertain to international customary law. When

8 I then read the Defence reply to the Prosecution's response to the Defence

9 preliminary motion, it reads that it goes without saying that attacks on

10 civilians are forbidden by international humanitarian law. And this seems

11 to have led the Prosecution to write in their response to the Defence

12 reply to the Prosecution's response to the Defence preliminary motion,

13 that rather than purporting to dispute the customary status of the

14 prohibition against attacks on civilians, the Defence in the reply appears

15 to challenge the propriety of basing these charges in the indictment upon

16 the Additional Protocols.

17 What I noted today, that where you started as the point of view of

18 the Defence, that the protocols -- and this also relates to the question

19 put to you by Judge Liu -- that the protocols as such do not appertain to

20 international customary law, you later say that deliberate attacks on

21 civilians are forbidden by international humanitarian law. At the same

22 time, you say that that is not on the basis of the Additional Protocols.

23 My first question is: Are deliberate attacks on civilians forbidden by

24 international humanitarian law to everyone, to every state? The second

25 question is: If so, what would then be the legal basis for such a

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1 prohibition other than one of the Additional Protocols?

2 MR. PETROVIC: [Interpretation] Your Honour, I will try to answer

3 your question, although in view of the complexity of the matter, I may

4 have to confer with some people who are the legal assistants to this

5 Defence team, so I will try and explain some things that I'm able to at

6 this moment. So, yes, we did focus on the formal --

7 [Trial Chamber confers]

8 JUDGE LIU: Well, you mentioned that you have to consult somebody

9 in your team, and now it seems to me that it is time for the break, and

10 what if we break here for about 15 minutes, then we will resume, you will

11 continue to answer the question. Later on, we will have the Status

12 Conference. Is that all right for you?

13 MR. PETROVIC: [Interpretation] Your Honour, unfortunately, I have

14 to say the following. For legal matters of a very high degree of

15 complexity, as these people are not here with us today, we do represent

16 the Defence team, my colleague, Mr. Rodic and myself, but in these 15

17 minutes, unfortunately, our resources are not such that we can discuss

18 this so quickly, and I believe that the resources of the Prosecution are

19 much, much greater than those of the Defence. So the 15 minutes wouldn't

20 mean anything to us. We also have our adviser at the law faculty, but in

21 these 15 minutes, I'm not able to consult him. So in these 15 minutes, if

22 the Chamber does believe that it is necessary, and that it is interested

23 and necessary to clarify this problem, I would, of course, like to do

24 this, and I would do it gladly, but perhaps at some later date and perhaps

25 in a written submission or maybe with another legal argument before your

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13 English transcripts.













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1 Chamber but these 15 minutes unfortunately do not mean anything to me.

2 [Trial Chamber confers]

3 JUDGE LIU: Well, you may answer this question at this moment.

4 After that, we will break.

5 MR. PETROVIC: [Interpretation] So as far as my reasoning goes,

6 what is not in dispute and what the Defence is trying to point to is the

7 formal aspect of the problem, not the essence of the prohibition and its

8 meritorial aspect but the Additional Protocol matter. Regarding the legal

9 source, the origin -- perhaps this is too free and perhaps without any

10 arguments, but if I am requested to give this answer at this moment, the

11 only thing that I can refer to, that would be the sources that come from

12 military manuals, the practice of the armies, including the army that was

13 including in the conflict at the time, the Yugoslav army, and what they

14 have in their manuals as treating -- treatment of people in the conflicts

15 that they are a party to.

16 JUDGE LIU: Thank you. Taking into consideration the argument

17 expressed by both parties, this Trial Chamber will deliberate on the two

18 issues. One is the matter concerning with the jurisdiction. Another is

19 the form of the indictment. And we will render our decisions on these two

20 issues at a later stage.

21 Now we have to have a break at this moment, for this sitting has

22 lasted for quite a long time, and after that, we will have a Status

23 Conference. Since Honourable Judge Orie is the Pre-Trial Judge for this

24 case, the Status Conference will be presided over by Judge Orie. We will

25 resume at 20 to 5.00.

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1 --- Whereupon the Motion Hearing

2 adjourned at 4.18 p.m. to be followed by a Status

3 Conference.