Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8786

1 Thursday, 28th November 1996.

2 9.00 a.m.

3 THE PRESIDING JUDGE: Mr. Orie, how do you feel today? Do you feel

4 one year older?

5 MR. ORIE: My actual birthday was already last Saturday so I feel one

6 year and three days older, your Honour.

7 THE PRESIDING JUDGE: I am with you, only it is probably three years

8 and one day! OK. You may continue, please.

9 MR. ORIE: Thank you very much, your Honour. I will just first

10 briefly summarise where I went yesterday. I started referring

11 to the decision of the Appeals Chamber, especially where the

12 Appeals Chamber decided that the clashes between the rebel

13 forces and the central government forces would only result in an

14 international armed conflict if the Bosnian Serb forces would

15 have to be regarded as organs or agents of Belgrade.

16 This is the language of both the Appeals Chamber and

17 the International Court of Justice in the Nicaragua case,

18 dependance and control, control to such a degree in all fields

19 that it would justify to equate the Bosnian Serbs, for legal

20 purposes, with an organ or agents of Belgrade. I also pointed

21 at the circumstances that would not allow to reconstruct the

22 organisation, equipment, personnel and supplies of the Bosnian

23 Serb forces.

24 I now come to a question raised twice by you, Judge

25 McDonald, a question of state responsibility. The question of

26 state responsibility has first to be answered in order to

27 establish whether the armed conflict was of an international

28 character. That is important, since Article 2 of the Statute

Page 8787

1 requires the existence of such an international conflict before

2 we can enter the area of individual responsibility for the grave

3 breaches.

4 JUDGE STEPHEN: Can I ask you this? I suppose the armed conflict, as

5 far as Hambarine, as far as Prijedor was concerned, would have

6 occurred before the withdrawal of the JNA?

7 MR. ORIE: Yes, your Honour.

8 JUDGE STEPHEN: That was clearly, I suppose, an international armed

9 conflict ----

10 MR. ORIE: Your Honour, there has been ----

11 JUDGE STEPHEN: --- and why does it not continue until peace is

12 ultimately arrived at?

13 MR. ORIE: Your Honour, I think if we look at what happened in these

14 times, there was the declaration of independence of Bosnia and

15 Herzegovina.


17 MR. ORIE: Almost immediately afterwards we had a declaration of

18 independence of the Serbian Republic of Bosnia and Herzegovina.

19 The actual situation at that time was that the JNA was still

20 there and I would say the international character of the

21 conflict derived more from what happened before in Croatia and

22 what happened before. At that moment we were in a state of

23 transition. On from 19th May, I think, it became clear that the

24 JNA would withdraw and the Republic of Bosnia and Herzegovina

25 would be an independent state at that moment.

26 So it is that period of transition. I would say that

27 it was both the end of the international conflict and the

28 beginning of the internal conflict.

Page 8788

1 JUDGE STEPHEN: But what ended the international conflict? There was

2 no peace?

3 MR. ORIE: There was no peace.

4 JUDGE STEPHEN: I thought it continued in the absence of some

5 conclusion of peace.

6 MR. ORIE: I would say that it was converted at that time in an

7 internal conflict, your Honour. Going back to the decision of

8 the International Court of Justice in the Nicaragua case, the

9 International Court of Justice -- I am trying to seek the

10 criteria to be used -- decided that the United States

11 participation, even if preponderant or decisive, in the

12 financial, training, supplying and equipping of the Contras, the

13 selection of its military and paramilitary targets, and the

14 planning of the whole of its operation was still insufficient in

15 itself for the purpose of attributing to the United States

16 responsibility of what the Contras had done. That is paragraph

17 114 of the decision on the merits in the Nicaragua case of June

18 27th 1986.

19 It is our submission that the Prosecution has been far

20 away from proving a situation of involvement of the Belgrade

21 government that went any further than the US involvement in

22 Nicaragua. Even in the testimony of Dr. Gow, which has struck

23 the Defence by being very one-sided, one cannot find anything

24 more than the actual leaving behind of equipment, armoury and

25 officers and soldiers while the JNA was split up.

26 Being asked whether the spring offensive in 1992 was a

27 planned operation by the JNA, Dr. Gow answered that the

28 operations in the spring of 1992 were planned and co-ordinated

Page 8789

1 actions, involving elements of the JNA. The question was

2 whether it was a planned operation by the JNA. He said it was

3 planned and co-ordinated involving elements of the JNA, apart

4 from that also local Serbian Territorial Defence units and

5 paramilitary groups. That was even before the split up and the

6 withdrawal of the JNA.

7 In cross-examination, Dr. Gow testified that it is

8 difficult to say what JNA means after 19th May. He still

9 considers that the remainings of the JNA to be elements of the

10 JNA. That is the second example I promised you of how witnesses

11 and experts would use the word "JNA" even after the split up of

12 the JNA and VRS and the army of the federation.

13 So he still considered the remainings of the JNA to be

14 elements of the JNA, even when the arms, equipment and people

15 were integrated in the army of the Serbian Republic of Bosnia

16 and Herzegovina. So whenever he uses the word "JNA" or

17 "elements of the JNA", one should ask oneself what he actually

18 meant to say, since his explanation demonstrates that he might

19 well have meant the remaining parts of the JNA on Bosnia and

20 Herzegovina territory, then called the VRS.

21 This is not surprising since Dr. Gow considers

22 whatever facts in the light of what he sees as General

23 Kadijevic's master plan. Every single event must fit into that

24 master plan. New developments just are ignored when they do not

25 fit in.

26 Dr. Gow also testified in cross-examination that the

27 Bosnian presidency, even into May 1992, sought to achieve some

28 kind of an arrangement with the local command of the JNA and

Page 8790

1 that they actually co-operated in joint patrols. Negotiations

2 were ongoing as to whether the JNA and Bosnia and Herzegovina

3 would be the backbone of the new Bosnian and Herzegovina army.

4 Dr. Gow did not exclude the possibility that General Mladic took

5 his decisions already at that time against what Belgrade (that

6 was still responsible for the withdrawal of the JNA) wished him

7 to do. He was reluctant to admit those facts since they did not

8 fit into his interpretation of what the greater Serbian idea was

9 about, neither did the competing nationalistic ideas fit into

10 his interpretation.

11 Similar testimony has been given by Colonel Selak. He

12 is very clear where he testifies that on the territory of Bosnia

13 and Herzegovina (or, rather, the Republika Srpska), there was

14 only one army, and that was the army of the Republika Srpska, as

15 he says on page 1249.

16 He confirms that there was no formal chain of command

17 between the VRS and the VJ, page 1259. The chain of command was

18 from the regions to the VRS command, the same page. It was the

19 main staff that commanded the units and bases. Even if

20 communication equipment would be technically going through

21 Belgrade, telephone conversations of Colonel Selak and General

22 Dukic took place while the latter was actually in Pale, not in

23 Belgrade.

24 When explaining the dotted lines on the charts,

25 Colonel Selak explains that there was no real -- he is not

26 talking about formal -- chain of command, although, in fact,

27 there was co-ordination between the main staff of the VRS and

28 the VJ, but no other relations were really existing.

Page 8791

1 Similar testimony has also been given by Colonel

2 Kranjc. He has told us that operations such as the operation in

3 the Sava Valley corridor were ordered by the main staff of the

4 army of the Republika Srpska on page 1320. The Corps command

5 was reporting to the VRS command headquarters. On a more

6 practical level, Colonel Selak has testified that the tanks and

7 APCs that were used in the attack on Kozarac were under the

8 control of the military of the VRS. Only the Corps Commander

9 could give approval for the use of brigades for the attack on

10 Kozarac, pages 1284 and 85.

11 Apart from financial support (paying the officers),

12 for example, the acceptance that remaining equipment, buildings

13 etc. would be used by the VRS in the future (part of the

14 equipment was taken into Serbia proper), no evidence has been

15 presented to the extent that the FRY government or military were

16 planning, let alone controlling, the operations in Bosnia and

17 Herzegovina.

18 Therefore, the criteria of the International Court of

19 Justice in the Nicaragua case, and I repeat it, such a degree of

20 control in all fields as to justify for legal purposes treating

21 the Bosnian Serbs as acting on behalf of the Belgrade government

22 has not been met in the relevant time.

23 These findings are not surprising, not only the

24 constitutional order of Bosnia and Herzegovina had collapsed in

25 1991 and early 1992, as has been extensively told to us by

26 Professor Hayden, but also the JNA was in a state of

27 dissolution. Various witnesses have testified and documentary

28 evidence has shown that most of the officers and soldiers of the

Page 8792

1 JNA in Bosnia were already at that time of Bosnian origin.

2 Therefore, only some 20 per cent of the people in the

3 withdrawing JNA felt that they were going home while withdrawing

4 to Serbia and Montenegro.

5 The two incidents that have been invoked by the

6 Prosecution could not possibly change this conclusion. The

7 first incident is contained in the testimony of Mr. Tihic. He

8 was brought by helicopter to the territory of Serbia proper.

9 This was only shortly after the declaration of independence.

10 That incident started late in April 1992, far before the relevant

11 time, that is the date of withdrawal of the JNA. The actual transfer by

12 helicopter was effected by one of Arkan's men, a military, and

13 another civilian. That is on page 8974. Repeatedly, the

14 Prosecution has spoken about the JNA helicopter. That is not

15 what the testimony of Mr. Tihic says. He talks about a

16 helicopter.

17 Even within Serbian territory, the paramilitary seemed

18 initially to be in control, and the mere fact that Mr. Tihic was

19 later detained in a police station within Serbia is not such as

20 to be of major importance for the classification of the

21 conflict.

22 The second event referred to by the Prosecutor are the

23 observations of Mr. Vulliamy of what happened in Loznica, a

24 detention camp close to the border. Where he talks about

25 running a camp by Serbian police, he immediately adds that this

26 was on Serbian territory, unlike other places he talked about

27 that were situated in Bosnia and Herzegovina.

28 He also describes the situation in Zepa near that

Page 8793

1 border, where he sees military traffic crossing the border in

2 either way. He did not see any heavy tanks or anything, but

3 there were some small armoured vehicles crossing. Having been

4 asked whether these soldiers, regardless of the insignia,

5 appeared to act as one unit, he replies that there was no reason

6 to believe that they were not. How he could draw this

7 conclusion when describing soldiers doing some casual patrolling

8 and attaching flags to lampposts is still unexplainable for

9 someone who was there only for a short period of time.

10 That he also saw car maintenance done and that

11 soldiers would even have their evening drinks at the other side

12 of the border does not justify either the conclusion that the

13 FRY was controlling to such a degree the operations in Bosnia

14 and Herzegovina as to equate the Bosnian Serbs acting on behalf

15 of the Belgrade government.

16 The overall picture that has been established, that

17 the presence of the JNA after the declaration of independence

18 and the quick recognition of Bosnia and Herzegovina, gave rise

19 to a rivalry between the central government and the Bosnian Serb

20 leadership to take control of the remaining parts of the JNA.

21 Forces of the central government, at least forces

22 under their control, would forcibly obstruct the withdrawal if

23 they feared that the remaining arms and equipment of the JNA

24 might fall into the hands of Bosnian Serbs. Withdrawal was not

25 complete to the extent that only a smaller part of the officers

26 and soldiers originating from Serbia and Montenegro had returned

27 to the territory of the Federation, and that some others wanted

28 to stay for personal reasons.

Page 8794

1 At that time they felt not bound any more by decisions

2 taken in Belgrade since they regarded themselves troops of the

3 newly created army of the Serbian Republic of Bosnia and

4 Herzegovina, the VRS. Furthermore, the withdrawal was hindered

5 while a free way out to Serbia and Montenegro was blocked, very

6 often caused by the presence of enemy forces on their way.

7 Apart, perhaps, from one isolated remark by Mr. Doko,

8 not very much specified, none of the experts and witnesses of

9 the Prosecution have clearly established that after 19th May the

10 former elements of the JNA were following instructions from

11 Belgrade, nor that any instructions were given by Belgrade,

12 apart from the order to withdraw. The new instructions sprang

13 from the Pale government, and whatever dotted lines may have

14 been drawn in the Exhibits between Pale and Belgrade they have

15 not been substantiated in the testimonies that have been given.

16 The Appeals Chamber has indicated that the

17 characterisation of the conflict in Bosnia and Herzegovina,

18 other than an internal one, would lead to an absurd outcome.

19 The underlining thought is that Bosnian Serbs would not be

20 protected persons under Geneva Convention IV. Bosnian Serbs

21 would have had the option of retaining their SFRY nationality,

22 or otherwise adopting the nationality of the Federal Republic of

23 Yugoslavia. That is what the answer of the Prosecution is to

24 that issue. I think that response that they could have opted

25 for another nationality is even more absurd than the absurdity

26 the Appeals Chamber talks about.

27 Let us just for argument sake take this line of

28 thinking seriously. We would then find that, on the basis of

Page 8795

1 the treaties invoked by the Prosecutor, the Bosnian Muslims

2 would have had the same option to change their nationality. No

3 evidence whatsoever has been presented that one single Bosnian,

4 whether Serb or Muslim, has made this choice. It would also

5 implicate that the Prosecution would have to prove that all

6 victims of the crimes charged had not made such an option, such

7 a choice, for another nationality. In this absurd line of

8 thought, it was far from sure that they were still holding the

9 nationality of Bosnia and Herzegovina. It is, therefore, a

10 purely hypothetical construction, not a realistic approach.

11 This becomes even more clear if we look at the legal

12 instruments mentioned by the Prosecution. Article 10 of the

13 convention on the reduction of statelessness takes as the

14 starting point that provisions should be adopted whenever

15 territory is transferred to another state in order to prevent

16 citizens to become stateless. No treaty was concluded when

17 Bosnia and Herzegovina declared its independence.

18 Under these circumstances, Article 10, paragraph 2,

19 would apply, providing the citizenship of the new state for all

20 those who would otherwise become stateless. It is obvious that

21 the majority of the Bosnian Serbs would regard themselves as

22 citizens of the newly established Serbian Republic of Bosnia and

23 Herzegovina in the spring of 1992. This is emphasised by the

24 constitution of Bosnia and Herzegovina that was only adopted

25 under the Dayton Agreement in 1995. It provides that no persons

26 shall be deprived of not only the citizenship of Bosnia and

27 Herzegovina, but also not of the entity citizenship arbitrarily

28 or so as to leave him or her stateless. That realistically

Page 8796

1 reflects the situation where Bosnian Serbs considered themselves

2 citizens of the Serbian Republic of Bosnia and Herzegovina, and

3 since December 1992 of the Republika Srspka.

4 If it would be true that a substantive number of

5 Bosnian Serbs would not legally have obtained the Bosnian and

6 Herzegovinan citizenship at the time of the declaration of

7 independence, or would massively have opted for SFRY or RFY

8 citizenship immediately thereafter, this would have meant that

9 one of the elementary constituent elements of the newly

10 established Republic as a state would have been missing, and

11 that is a people.

12 Precipitous recognition of such a state would be in

13 violation of the sovereign rights of the Socialist Federal

14 Republic. Even if I might be inclined to take that position,

15 that it was a precipitous recognition, I certainly think that

16 the Prosecution would not accept such a consequence. I would

17 take that position because of the unconstitutionality of the

18 process of getting to the independence of Bosnia and

19 Herzegovina, and I refer to the statements of Professor Hayden.

20 I explained that under Article 10, paragraph 2, of the

21 convention on the reduction of statelessness, there was no

22 question of the nationality of Bosnian Serbs, nor of Bosnian

23 Croats or Muslims, being indeterminate as an alternative. But

24 if this would be the case, then there is no basis in

25 international customary law to expand the scope of "protected

26 persons".

27 No authority has been provided by the Prosecutor for

28 such a solution. The consequence then would be that the

Page 8797

1 citizenship of all other ethnic groups in the territory of

2 Bosnia and Herzegovina and, more especially, in areas where the

3 majority of the population was Serbian, would be just as

4 indeterminate.

5 JUDGE STEPHEN: Would be indeterminate, did you say?

6 MR. ORIE: Yes, that is the last option the Prosecution has taken in

7 its pretrial brief on it might have been indeterminate, and that

8 would be valid for all the other groups as well.

9 I come to a conclusion, your Honours. In the relevant

10 time, say, after or perhaps shortly before 19th May, but I will

11 say after 19th May 1992, the conflict in the opstina Prijedor

12 was of an internal character and, therefore, the Tribunal has no

13 jurisdiction over any of the grave breach charges, that might be

14 the same acts as charged under Article 3 or Article 5 of the

15 Statute, but no jurisdiction over the grave breach charges, or

16 that at least the defendant should be acquitted on those

17 charges.

18 JUDGE STEPHEN: Can I just ask you, when you say it would be

19 internal, internal as between citizens of Bosnia Herzegovina?

20 MR. ORIE: Armed forces, whether or not well organised within Bosnia

21 and Herzegovina, although of course there were some people who

22 originated from Serbia proper involved in the armed forces of

23 the VRS.

24 JUDGE STEPHEN: But how would you characterise the conflict? I know

25 that you characterise it as internal, but between what groups?

26 MR. ORIE: I would say between the VRS and the central government

27 forces, but the VRS supported by ----

28 JUDGE STEPHEN: VRS being the insurgent force ----

Page 8798

1 MR. ORIE: Yes, the rebellious forces.

2 JUDGE STEPHEN: --- and the government of Bosnia and Herzegovina on

3 the other side?

4 MR. ORIE: Of course, there still is a problem. That would be our

5 position if the central government of Bosnia and Herzegovina

6 would be in control. I just told you that they claimed that

7 Bosnia and Herzegovina was a state. I told you about the

8 precipitous recognition of that. If one thinks that the Bosnian

9 Serbs, the inhabitants of the Republika Srpska, the Serbian

10 Republic, were not in whatever way under their control, you

11 could even ask yourself which was the state at that time, but

12 the Appeals Chamber has given a clear decision that the

13 Republika Srpska cannot be regarded as a state, so, therefore,

14 not for constitutional reasons, I have to regard the Republika

15 Srpska as the rebellious forces against the central government

16 forces.

17 That was my conclusion, your Honour.

18 THE PRESIDING JUDGE: Mr. Orie, did Dr. Gow testify at the very end

19 of his testimony that the JNA was present in Bosnia and

20 Herzegovina? When I say the JNA, I mean the JNA of the Federal

21 Republic of Yugoslavia. He mentioned several incidents right at

22 the end of his testimony in the eastern part of Bosnia and

23 Herzegovina. Do you recall that? I have not read it since, so

24 maybe I am wrong.

25 MR. ORIE: I do not remember exactly, your Honour. I know that also

26 Mr. Doko has stated that there had been some problems in totally

27 different places.

28 THE PRESIDING JUDGE: Not Mr. Doko, this was Dr. Gow. We will check

Page 8799

1 it again. Of course, I suppose, as you say, this would mean

2 that we would then apply Article 3 or Common Article 3 to these

3 alleged offences if we found Mr. Tadic guilty as opposed to

4 Article 2?

5 MR. ORIE: Yes, I was speaking about whether Article 2 could be

6 applied in an internal conflict, at least a part that could

7 apply under Article 3 or Article 5 of the Statute.

8 THE PRESIDING JUDGE: So, it is really academic in so far as the

9 ultimate outcome because there is overlap between Article 3 and

10 Article 2.

11 MR. ORIE: It is just as academic as charging the defendant with all

12 three categories of crimes.

13 THE PRESIDING JUDGE: Thank you. Thank you, Mr. Orie.

14 Mr. Wladimiroff?

15 MR. WLADIMIROFF: Thank you, your Honour. Your Honours, I will only

16 deal with a few legal matters that have not been addressed

17 before. Consequently, I will only add little to our position as

18 described in the pretrial brief with regard to more substantial

19 evidence.

20 The first observation deals with deportation as this

21 allegation especially mentioned in the description of the

22 various acts of paragraph 4 of the indictment. The acts of this

23 paragraph are in the present indictment charged under count 1 as

24 a crime against humanity. Originally, however -- I refer the

25 Court to the draft as attached to the Prosecution motion seeking

26 for a leave to amend the indictment of 31st July last year --

27 paragraph 4 had two headings, "persecution" and "deportation",

28 and all acts of paragraph 4 were charged with three counts; one

Page 8800

1 count of persecution and two counts of deportation.

2 Deportation was originally specifically charged as a

3 crime against humanity under Article 5(d) of the Statute and as

4 a grave breach of the Geneva Convention under Article 2(g) of

5 the Statute. When your Chamber ruled that the act contained in

6 paragraph 4 of the draft indictment should be cleared more in

7 detail, the Prosecution dropped these two counts on deportation

8 and changed the heading of this paragraph into persecution

9 only.

10 Whereas the present paragraph 4 under the heading of

11 persecution only mounts up to a charge of persecution under

12 Article 5(h) of the Statute, one might wonder whether this

13 charge also encompasses deportation. Our position is it is

14 not. Why not? Well, because of the system of Article 5 of the

15 Statute. We believe that it is significant that the crime of

16 deportation is listed as a crime against humanity under Article

17 5(d), separate from persecution of section (h) of this Article.

18 The persecution would encompass deportation, why then to

19 enumerate this crime separately under different headings?

20 We have found no authority arguing the contrary, and

21 I note that the Prosecution did not argue that deportation is a

22 part of persecution, nor in their pretrial brief, neither in

23 their closing argument this week.

24 We, therefore, submit to the Court that deportation is

25 a separate crime from persecution and, consequently, that parts

26 of paragraph 4 that mount up to deportation, if proven, cannot

27 be qualified as persecution.

28 If the Court may find so, another question may arise,

Page 8801

1 whereas the Prosecution argued in a pretrial brief that the

2 court in that case may have the authority to render findings of

3 guilt for offences other than those specifically charged; in our

4 pretrial brief we have denied such authority on two grounds:

5 First, we have submitted that such findings would violate the

6 principle of legality as recognised in international law and,

7 moreover, because we believe that such alternative findings have

8 no basis in international law. It is not a part of customary

9 international law.

10 Let me elaborate that a little. International law

11 recognises that it is a basic requirement of the criminal law

12 that a defendant should be made aware of every single element

13 that constitutes the offence. Civil law jurisdictions deal with

14 this requirement by statutory law only, while common law

15 jurisdictions nowadays show a mixed practice. Codification of

16 substantive criminal law was in common law practice not always

17 required to accept common law offences as a basis for

18 conviction. This practice did not raise serious problems of

19 awareness because in those jurisdictions there has always been a

20 long standing tradition and history upon which the defendant and

21 counsel could rely.

22 But this practice has changed. I suggest that in most

23 common law jurisdictions substantive law is increasingly

24 regulated by statutory law. New crimes are, as a rule,

25 penalised through statutory law. So we believe that it is a

26 fair statement to say that the all over trend in this respect is

27 that civil and common law grow towards another if it comes to a

28 new law.

Page 8802

1 I have little problem to submit to you that the

2 international humanitarian law is new, is a new and not yet

3 fully known branch of tree called the criminal law. The world

4 community has created these new crimes that only have a brief

5 tradition which were, unfortunately, almost forgotten again

6 after the closure of the post World War II trials in Nuremberg

7 and Tokyo. Since then, only a few specialists were aware of

8 this area of international law. Most practising lawyers had

9 little or no knowledge of the variety of crimes under the

10 Conventions and the scope of these crimes.

11 Indeed, defining international customary law is

12 difficult and gives rise to disputes about scope or specific

13 topics. Being aware of this, the legislators of the Statute

14 confined themselves to jurisdictional methods instead of

15 specifying the violations of International Humanitarian Law.

16 The Statute of the Tribunal does not encompass a code of

17 offences, but relies upon offences under customary law that only

18 incidentally have been developed by international tribunals and

19 with rare application under domestic law.

20 Consequently, and different to the practice in

21 domestic common law jurisdictions, there are hardly any case law

22 in history upon which the defendant and counsel can rely in

23 addressing an indictment under the international jurisdiction of

24 this Tribunal. Under these circumstances, the lack of statutory

25 provisions may give rise to violations of the principle of

26 legality when it is without good cause assumed that the

27 defendant is aware of every single element that constitutes the

28 offence.

Page 8803

1 It is in this context that I recall that the trial

2 against Dusko Tadic started with an exchange of pretrial briefs

3 where both parties were uncertain about the scope of the

4 indicted offence. Under these circumstances, it seems not fair

5 to ambush a defendant with findings of guilt of violations of

6 unchartered humanitarian law that were not indicted.

7 Consequently, we submit to the Court that any finding of guilt

8 must be limited to offences as charged only.

9 Let us just for the sake of the argument suppose that

10 the Court has the authority to render findings of guilt for

11 offences other than those specifically charged. In that case,

12 questions may arise about the scope of the deportation as a

13 crime under Article 2(g) of the Statute. The pretrial briefs of

14 the Prosecution and the Defence demonstrate the difference in

15 opinion whether deportation should be defined in accordance with

16 Article 49 of the Geneva Convention, or that rather definition

17 of Article 85(4)(a) may also be taken into consideration.

18 Then, in the narrow definition of Article 49, unlawful

19 deportation is limited to transfers from occupied territory to

20 the territory of the occupying power (or any foreign

21 territory). Under Article 85, though, the Protocol 1,

22 deportation within the occupied territory would also fall within

23 the definition.

24 Even if an armed conflict of international character

25 would have existed (which, as Mr. Orie set out, we deny), we

26 suggest that the Prosecution has not presented evidence that

27 would prove the existence of an occupation on behalf of the

28 Belgrade government, being in occupation, a takeover by a

Page 8804

1 foreign occupying power as a de facto administrator.

2 This also implicates that neither under the wide nor

3 under the narrow definition unlawful deportation took place,

4 being there no occupied territory. Under the narrow definition

5 we suggest that no evidence has been presented that would prove

6 the deportation of persons in the territory of the occupying

7 power. The narrow definition is, in our submission, the only

8 one that would be applicable (if at all, since there is no

9 specific deportation charge).

10 With regard to the wider definition, I note that the

11 customary status of Protocol 1 is too uncertain to accept it as

12 acceptable customary law.

13 In sum, your Honours, we believe that there is no

14 sufficient legal room for an alternative finding of guilt of

15 deportation under Article 2(g) of the Statute.

16 Another matter that almost follows from the same

17 argument deriving from the principle of legality is the number

18 of your findings of guilt within a specific count. We suggest

19 that proof of more than one act may only lead to a finding of

20 guilt of one and not of multiple crimes. If we focus, for

21 example, on paragraph 4, the indictment clearly charges that

22 Dusko Tadic by his participation in the acts described in the

23 factual array, committed a crime -- I emphasise a crime -- as

24 described in count 1, and not a plurality of crimes under

25 Article 5(h) of the Statute. Of course, the same applies for

26 the other charges. We, therefore, submit to the Court that the

27 accused can only be found guilty for each count once leaving the

28 weight of multiple acts, though, as a matter for sentencing.

Page 8805

1 As regards to torture ----

2 JUDGE STEPHEN: Can you tell me, if you look at paragraph 6, for

3 instance -- I could take any paragraph other than paragraph 4,

4 but paragraph 6 is the first available one -- do you say that

5 there can only be six, seven offences, in other words, under

6 count 5 only one crime and conviction?

7 MR. WLADIMIROFF: What I am saying, your Honour, is that, for

8 example, count 5 may lead to a breach and not to breaches.

9 JUDGE STEPHEN: Yes, but it can lead to one, then count 6 can also

10 lead to a separate one?

11 MR. WLADIMIROFF: We have discussed that in the context of the form

12 of the indictment. I have taken very good notice of your

13 decision on that matter. That is the reason why I am not

14 discussing that matter again.

15 JUDGE STEPHEN: Thank you. That is clear then.

16 THE PRESIDING JUDGE: It is not exactly clear to me. When you say a

17 grave breach, are you saying that since there are multiple

18 victims that it should be treated as one transaction and

19 Mr. Tadic could not be found guilty of a grave breach for each

20 victim?

21 MR. WLADIMIROFF: That is what I am saying, your Honour -- if proven,

22 of course.

23 THE PRESIDING JUDGE: I understand. It is all hypothetical.

24 MR. WLADIMIROFF: All under that heading.

25 As regards to torture, your Honours, as charged under

26 count 8 of paragraph 6, I only have a brief remark to make for

27 as far as the Prosecution dealt with that matter. I stress

28 that, in our opinion, an expansion of the purpose behind the

Page 8806

1 infliction of pain to the extent that any reason based on

2 discrimination of any kind would be included has not yet reached

3 the status of international customary law. The Prosecution has

4 not shown that it does.

5 The third topic I want to touch on is the inhumane act

6 as charged under count 20 of paragraph 9. We disagree with the

7 Prosecution when they argue that the indicted act, if proven to

8 be an infliction on a dead body, may establish a crime against

9 humanity. We believe that there is no basis in international

10 customary law for such novelty interpretation. The Prosecution

11 has not shown any authority for their position.

12 We suggest, your Honours, that the significant

13 character of crimes against humanity is that only human life is

14 protected under Article 5 of the Statute, not dead bodies. We

15 believe that actions directed against dead bodies cannot be seen

16 as actions directed against civilian people as enumerated under

17 Article 5 of the Statute, simply because it is hard to believe

18 that one can murder, one can exterminate, one can enslave,

19 deport, imprison or persecute for discriminating reasons a dead

20 body, if we simply follow the wording of Article 5.

21 May I now briefly turn ----

22 THE PRESIDING JUDGE: Mr. Wladimiroff, I do not want to interrupt

23 you, but I have to; what about an offence against human

24 dignity? I understand that if a person is dead you cannot kill

25 them, that makes sense. But would it be an offence against a

26 person's dignity, whether they are dead or alive, to treat a

27 person in that way?

28 MR. WLADIMIROFF: You are referring to Article 5, your Honour?

Page 8807


2 MR. WLADIMIROFF: "The International Tribunal shall have the power to

3 prosecute persons responsible for the following crimes when

4 committed in armed conflict, whether international or internal

5 in character, and directed against any civilian population:

6 murder, extermination, enslavement, deportation, imprisonment,

7 torture, rape, persecutions on political, racial and religious

8 grounds or inhumane acts". I did not quite understand your

9 question, your Honour.

10 THE PRESIDING JUDGE: Never mind. I will withdraw it. Go ahead.

11 MR. WLADIMIROFF: May I now briefly turn to the composition of the

12 indictment, since the factual descriptions of paragraph 4

13 encompasses some repetition. This repetition is in the first

14 place that Dusko Tadic is charged with the seizure and transfer

15 of non-Serbs to the camps of Omarska, Keraterm and Trnopolje as

16 described in a portion of subparagraph 4.1 as well as in the

17 remaining portion of 4.3 and as a separate allegation of

18 subparagraph 4.4.

19 The differences in wording of these subparagraphs, as

20 far as they deal with seizure and transport of non-Serbs in

21 camps, seems not relevant; whereas all these subparagraphs

22 result in only one count, persecution on political, racial

23 and/or religious grounds, a crime against humanity under Article

24 5(h) of the Statute.

25 If we focus on the time frames of these portions, it

26 appears that a period of time of each subparagraph under which

27 the alleged acts may have taken place overlap the period of time

28 of the other subparagraphs.

Page 8808

1 This overlap implicates that the seizure, selection

2 and transportation of non-Serbs for detention in all the camps

3 between 25th May and 31st December 1992 of subparagraph 4.4

4 totally absorbs the seizure and transfer of non-Serbs from the

5 Kozarac area to Trnopolje camp between 25th May and 31st

6 December 1992, subparagraph 4.3.

7 The same applies to subparagraph 4.1 if we realise

8 that the Court did not receive any evidence about the seizure

9 and transfer of non-Serbs from Kozarac and the surrounding area

10 to detention centres on 24th May 1992. As the relevant time of

11 subparagraph 4.1 is effectively limited to the time between 25th

12 and 27th May 1992, also this portion of subparagraph 4.1 is

13 totally absorbed by subparagraph 4.4.

14 Whereas the general part in paragraph 4 limits the

15 non-Serbs to residence of opstina Prijedor and the camps to

16 Omarska, Keraterm and Trnopolje, the indicated parts of 4.1 and

17 4.3 are materially encompassed by the allegation of subparagraph

18 4.4 between 25th May and 31st December 1992. A similar issue is

19 the repeated reference in paragraph 4 to other charges of the

20 indictment.

21 Subparagraph 4.1 refers to the charge of paragraph 12,

22 apparently with the purpose to have the alleged acts of charge

23 12 to mount up to the count of persecution. However, a

24 reference to an act that allegedly happened about 14th June 1992

25 cannot fit in the time frame of 24th to 27th May 1992, as

26 described in subparagraph 4.1.

27 It needs little explanation that the reference in

28 paragraph 4.2 to the withdrawn charge of paragraph 5 is totally

Page 8809

1 useless since this charge has been withdrawn.

2 If I may now turn briefly to the criminal

3 responsibility, your Honours?

4 THE PRESIDING JUDGE: Which paragraph? Which charge has been

5 withdrawn?

6 MR. WLADIMIROFF: The charge at paragraph 5, though the reference in

7 4.2 is still there.

8 THE PRESIDING JUDGE: Yes. Let me ask you though one question,

9 Mr. Wladimiroff. Regarding paragraph 11, speaking

10 hypothetically, that in the substantive counts, counts 24 to 28,

11 charges offences on May 27th 1992. Could that constitute, that

12 transaction constitute, a violation of the legal bases cited in

13 counts 24 to 28 and also constitute persecution?

14 MR. WLADIMIROFF: Not in the context of this indictment, your Honour,

15 because -- well, yes.

16 THE PRESIDING JUDGE: It is 11 now.

17 MR. WLADIMIROFF: Yes, I thought you were referring to 12.

18 THE PRESIDING JUDGE: No, but 11 you do not have a problem; 12 you

19 have a problem because it is clearly outside of the date.

20 MR. WLADIMIROFF: I have tried to explain that whether it could

21 constitute a persecution or not, well, as a matter of fact,

22 where there is a reference in 4 to paragraph 11, one could argue

23 that it is indicted because it is a part of the factual -- it is

24 indicted as a persecution because the factual array of 11 is

25 incorporated in 4.

26 THE PRESIDING JUDGE: So it is indicted as persecution because it is

27 also indicted as a grave breach violation?

28 MR. WLADIMIROFF: Yes, and I have not opposed that.

Page 8810


2 JUDGE STEPHEN: You have not what?

3 MR. WLADIMIROFF: I have not opposed that because it is a part of the

4 factual array and we were aware that 11 was also a basis for the

5 charge of persecution.

6 JUDGE STEPHEN: Does that mean that you think that it would be

7 proper, assuming the necessary finding of fact, to convict on

8 one of these later paragraphs, the counts under them, and also

9 the count under persecution, although the same facts are relied

10 on in both?

11 MR. WLADIMIROFF: We have two issues here, your Honour, as I see it.

12 The factual array of paragraph 11 is incorporated in

13 paragraph 4. Therefore, those facts of paragraph 11 may mount

14 up to count 1, if proven. Another issue is whether the facts of

15 paragraph 11 may mount up to counts 24 up to 28. That issue, as

16 I already said, has been dealt with by your Court while we were

17 discussing the form of the indictment. So I have not discussed

18 that matter again. It is res judicata.

19 JUDGE STEPHEN: And it will be dealt with on sentence, in effect?

20 MR. WLADIMIROFF: Yes. Your Honours, let me now turn to criminal

21 responsibility, if I may. Article 7.

22 THE PRESIDING JUDGE: Before you turn to that, let me ask you one

23 question on the elements. In your pretrial brief regarding the

24 charges for persecution on political, racial or religious

25 grounds, you were concerned with the lack of definition of the

26 specified acts. Would you explain that, please?

27 MR. WLADIMIROFF: The lack of clarity is still a matter to be decided

28 by the Court, whether that is sufficiently established in

Page 8811

1 customary humanitarian law to accept the standard that will fit

2 for the facts as indicted. So we have left it there.

3 THE PRESIDING JUDGE: So you are saying that there are certain acts

4 that have not been made criminal under customary international

5 law?

6 MR. WLADIMIROFF: That is right, your Honour.

7 THE PRESIDING JUDGE: I can accept that proposition, but I thought

8 that you were concerned with the lack of specificity or

9 definition in the indictment. But, if that is not your

10 position, then it is just a question of law, whether or not

11 these acts have been made criminal and individual responsibility

12 under customary and international law. I do not want to take

13 too much time. If that is your position, that is fine.

14 MR. WLADIMIROFF: I think I will deal with that later, if I may,

15 because then I have to look at the pretrial brief again, how

16 that fits after the receiving of the evidence. So I will come

17 back to that, your Honour, if I may?

18 Are there any other questions?


20 MR. WLADIMIROFF: Article 7 of the Statute places criminal

21 responsibility on those who planned, instigated, ordered or

22 otherwise aided and abetted in the planning, preparation or

23 execution of violations in a context which I will shortly deal

24 with.

25 Reading the indictment, I notice that the wording of

26 the charges does not follow the specific wording of Article 7.

27 Charge 4 for example, charges the defendant, on the one hand,

28 with "physical participation" or "participation" in acts

Page 8812

1 or "physical involvement" or "active involvement" in acts, or

2 "taking part" in acts and "being included in Serb forces" who

3 committed acts and, on the other hand, it charges Dusko Tadic

4 with the commission of crimes because of his participation in

5 these acts. So we have this word "participation" in two

6 different contexts here.

7 The factual descriptions, such as "participation",

8 "involvement", "taking part" or "being included" are

9 practically synonymous to each other, so I will confine myself

10 to the word "participation" instead of repeating during my

11 arguments all these variations.

12 If you look at the charges of 6 up to 12, they accuse

13 the defendant with being "included in a group of Serb forces"

14 or "armed Serbs" that committed crimes (which I will further

15 call "participation" again). Further, he is charged with the

16 commission of crimes because of his participation in these

17 acts.

18 It seems to me that the word "participation" is used

19 in the charges in two different ways. First, participation as a

20 factual type of involvement or otherwise taking part in crimes

21 and, second, as a qualification of the legal type of

22 involvement, claiming that participation is the commission of

23 the crimes as listed in the counts. That is the phrasing in the

24 indictment.

25 Whereas the factual description of any behaviour as

26 participation cannot be severed from the legal meaning of that

27 behaviour in the context of criminal responsibility, it makes

28 sense to analyse the types of responsibility under the Statute

Page 8813

1 first.

2 Participation in the context of the Statute is,

3 contrary to the assertions of the Prosecution, not an almost

4 unrestricted notion. It is way beyond its limits to say that

5 all those who contribute -- I quote the Prosecution -- "in any

6 manner whatsoever" or -- I quote again -- "regardless of their

7 specific roles to the commission of a violation are guilty".

8 From paragraph 54 of the Report of the

9 Secretary-General of May 3rd 1993, it appears that

10 "participation" is clearly restricted to planning, instigating

11 ordering, committing or otherwise aiding and abetting in the

12 planning, and there follows the whole sentence as we can see it

13 in Article 7.

14 THE PRESIDING JUDGE: Is it paragraph 44, Mr. Wladimiroff?

15 MR. WLADIMIROFF: 54, your Honour. Having read the report of the

16 International Law Commission of 6th May to 27th July 1996, where

17 these concepts of planning, instigating, ordering, committing or

18 otherwise aiding and abetting are further elaborated, the

19 Defence does not argue with the criminal responsibility of those

20 who planned, instigated or ordered the crimes. These notions

21 seem to be clear but not relevant in this case.

22 Participation, though, does not in itself establish

23 that the participant has committed a crime under Article 7(1) of

24 the Statute. Participation may only be qualified as the

25 commission of a crime when the perpetrator meets all the

26 elements that establish the crime. We submit that physical

27 participation or participation, or physical involvement or

28 active involvement, or taking part, or being included in Serb

Page 8814

1 forces who committed crimes as described in charge 4, for

2 example, does in itself not establish the commission of a crime

3 under Article 7. We also submit that being included in a group

4 of Serb forces or armed Serbs that committed crimes, as

5 described in the other charges, neither in itself establishes

6 the commission of a crime under Article 7.

7 It is clear that the factual description of

8 participation in the crimes charged in the indictment refers to

9 being an accessory to and not being the perpetrator of a crime.

10 Accessories, according to Article 7 of the Statute, are those

11 who aided and abetted in planning, preparation or execution of

12 violations of International Humanitarian Law.

13 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, are you saying then

14 that the word "committed" in Article 7(1) requires physical,

15 actual participation?

16 MR. WLADIMIROFF: No, your Honour. That is not what I am saying.

17 What I am saying is that the commission of a crime is only there

18 when the perpetrator meets all the elements that establish the

19 crime.


21 MR. WLADIMIROFF: He by himself.

22 THE PRESIDING JUDGE: --- does that beg the question of whether or

23 not he can meet all of those elements if he participates in the

24 execution of it in a way that does not include his actual

25 physical participation?

26 MR. WLADIMIROFF: No, your Honour, because in that case we would

27 argue that he is an accessory to the crime.

28 THE PRESIDING JUDGE: Are you saying that accessory then would fit

Page 8815

1 within the individual criminal responsibility as defined under

2 the Statute?

3 MR. WLADIMIROFF: I am going to deal with that, your Honour.

4 THE PRESIDING JUDGE: Is it "yes" or "no"? Then you can deal with

5 it, but just give me an answer if you can.

6 MR. WLADIMIROFF: An accessory is covered by aiding and abetting.


8 MR. WLADIMIROFF: What it means, though, is a different question.

9 But I am making a difference here, if I make myself clear,

10 between the use of the word "participation" referring to a

11 perpetrator, which can only be the case if the one who

12 participated has met all the elements of the crime, and the

13 participator, who is only an aider and an abettor. That is what

14 I am firstly saying here.

15 During the hearing of the motion on dismissal, the

16 Defence, as I may remember, took the position that participation

17 as aiding and abetting within the criminal responsibility of the

18 statute requires active involvement in the execution of a crime,

19 and that it would not be enough to be present whilst a crime is

20 committed if one does not take part in it or does not act in

21 concert with those who commit it. That is a statement I want to

22 elaborate on a little.

23 As is the case in all jurisdictions known to the

24 Defence, the International Law Commission has emphasised that an

25 accomplice is only aiding and abetting if he knowingly provides

26 assistance to the perpetrator, report pages 18, 24 to 25.

27 Accordingly, we submit that furthering or facilitating a crime

28 committed by someone else is not punishable if one does not

Page 8816

1 realise that the other commits or will commit a crime, or if the

2 act done was not a likely consequence of the offence in which

3 the accused participated.

4 The underlining principle here is that only criminal

5 intent materialised by behaviour is punishable. This is also

6 recognised in the aftermath of Nuremberg. I refer to the

7 Justice Trial and the trial against Oswald and others, as cited

8 by the Prosecution in their submission of November 20th.

9 What are the requirements then? The first requirement

10 for participation in the meaning of aiding and abetting of

11 violations of International Humanitarian Law under the Statute

12 is, therefore, proof of knowingly assisting in the commission of

13 a crime.

14 Consistent to domestic jurisdictions, the

15 International Law Commission also emphasised that an accomplice

16 must provide the kind of assistance which contributes directly

17 and substantially to the commission of the crime. The

18 assistance must at the very least have facilitated the

19 commission of the crime in a significant way.

20 Contrary to the argument of the Prosecution, the

21 Defence believes that the Mauthausen case does not set a

22 different standard here. The engagement of the defendants in

23 the Mauthausen case, described in the decision as being engaged,

24 I quote now, "in any manner whatsoever" does not implicate that

25 any assistance can qualify as aiding and abetting. The crux of

26 the opinion in the Mauthausen case was that all defendants were

27 engaged in the operation of the concentration camp. That

28 specific engagement was as such proof of a direct and

Page 8817

1 substantial contribution to the crimes committed there.

2 So the second requirement seems to be participation in

3 the meaning of aiding and abetting, that there should be proof

4 of a direct and substantial furtherance of the commission of the

5 crime.

6 The references to national jurisdictions given by the

7 Prosecution do not, as a source of customary law, when those

8 cases did not deal with violations of International Humanitarian

9 Law in a domestic setting, bring us much further. It only shows

10 that aiding and abetting lead to a variety of case law and that

11 a participant may be convicted as an accessory. But it is not

12 directly relevant for our case as long as those cases were not

13 dealt with in the context of a violation of International

14 Humanitarian Law, though in a domestic setting.

15 THE PRESIDING JUDGE: Excuse me, Mr. Wladimiroff, what do you mean by

16 "substantial furtherance"?

17 MR. WLADIMIROFF: I will elaborate that later on, your Honour. So

18 I hope to answer your question then.

19 THE PRESIDING JUDGE: Maybe I should just listen, but can you just

20 give me a little clue now since I have a question now?

21 MR. WLADIMIROFF: I rather prefer to develop the argument in which it

22 will be dealt with instead of picking out a part of it and

23 giving it to you at this stage.

24 THE PRESIDING JUDGE: I think in that response you are very fortunate

25 that you are not in a national jurisdiction, but go ahead. Read

26 your argument.

27 MR. WLADIMIROFF: We find it somewhat strange, your Honour, that in

28 the context of the post World War II -- no, I am reading it

Page 8818

1 wrongly. We find it somewhat strange that in the context of

2 International Humanitarian Law the Prosecution refers to cases

3 of the German Reichsgericht of the German Empire of the last

4 century and of the German Reichsgericht of the Weimar Republic

5 and, moreover, to decisions of the Reichsgericht of Germans of

6 Hitler's Germany.

7 This last reference is, therefore, indeed quite

8 peculiar because it is dealt with in the context of

9 International Humanitarian Law. I may recall that the judges of

10 Nazi Germany were tried in the Justice trial.

11 Anyhow, whereas witnesses in the Tadic case claim they

12 have seen Dusko Tadic near or at the scene of the crime, an

13 important issue in this case is the question whether such

14 presence, if proved, can lead to a criminal responsibility.

15 I have two observations here. First, physical

16 participation requires an active commitment as described before,

17 and excludes being present without acting in concert with those

18 who committed the crimes.

19 Second, proof of a sighting by witnesses of the

20 accused near the scene of a crime without any further proof of

21 involvement does not, in our opinion, establish a criminal

22 responsibility under Article 7 of the Statute. Proof of a

23 sighting of the accused at the scene of a crime or whilst a

24 crime is committed is, as we already said during the hearing of

25 the defence motion on dismissal, as such not enough under

26 Article 7, if one is not proved to have taken part in the crime

27 or does not act in concert with those who commit it.

28 We deny that the most marginal act of assistance or

Page 8819

1 encouragement would, as seems to be the case in Australian law,

2 in cases where they did not deal with International Humanitarian

3 Law, amount to an act of complicity in the crime, because this

4 is, as we submit to the Court, not well established customary

5 international law.

6 Here we make a distinction between culpability under

7 an international jurisdiction for violations of International

8 Humanitarian Law and common crimes tried in a national

9 jurisdiction.

10 If presence is punishable in a national jurisdiction,

11 it usually concerns participation with a group of persons who

12 committed the common crimes. The actions of such groups are

13 often directed by internal dynamics within the group, such as

14 macho behaviour, leading to criminal acts. Timely breaking up

15 with the group is not dependent on external factors, but only on

16 the ability to free oneself of these internal dynamics.

17 Cases of violations of International Humanitarian Law

18 usually concern persons acting under abnormal circumstances,

19 such as war. In these cases, not only considerations of an

20 internal nature are relevant, but also external factors, such as

21 totalitarian local regime that may have a much larger effect on

22 the actor.

23 Evidence in this case shows that in 1992 people in the

24 opstina Prijedor were living in chaotic times fearing all kinds

25 of risks of their life, health, work and home under the violent

26 and arbitrary rule of the local Crisis Staff. That did not only

27 affect the Muslims, but it also affected the Serbs. We have

28 heard evidence in this case about Serbs who were also confined

Page 8820

1 in camps. We have heard evidence of Serbs who were driven out

2 of the country. So a lot of people, also Serbs, were at risk of

3 being confronted with violations of humanitarian law or were

4 being present when these violations were committed.

5 It is clear that the context of the commission of

6 common crimes is different to the context of the commission of

7 war crimes or crimes against humanity. In the context of a

8 common crime culpable presence may be reasoned by the

9 possibility of the accused to disassociate himself from the

10 crime. But, given the difference in context, we take the

11 position that the presence whilst crimes under your jurisdiction

12 are committed should not automatically be judged in line with

13 the case law of criminal responsibility for common crimes under

14 national jurisdictions.

15 The citing of the Mauthausen case by the Prosecution

16 in this context of culpable presence is misplaced, since the

17 decision in that case does not establish that the mere presence

18 will be enough to establish criminal responsibility under the

19 Statute. We agree with the Prosecution where they argue that

20 the mere presence, without proof of other factors, does not give

21 rise to criminal liability.

22 We suggest that the presence should at least be proven

23 to be significant to the commission of the crime, and that the

24 proof of the significance of presence should not be speculative

25 but material.

26 The presence of an accused can only further the

27 commission of a crime when there is a significant causal

28 relation between the commission of the crime and the accused's

Page 8821

1 presence. In other words, the presence must be significant,

2 either because of a prior agreement between the accused and the

3 perpetrator, or perpetrators, or because of the influence of the

4 accused's presence at the commission of the crime; for example,

5 the encouragement given by the presence of the accused to the

6 commission of the crime.

7 We, therefore, agree with the passages of the Coney

8 case cited by the Prosecution reading: "The fact that a person

9 was voluntarily and purposely present witnessing the commission

10 of a crime and offered no opposition though he might reasonably

11 be expected to prevent it and had the power to do so, or at

12 least express his dissent, might in some circumstances afford

13 cogent evidence upon which a jury would be justified in finding

14 that he wilfully encouraged and so aided and abetted".

15 Indeed, under abnormal circumstances such as we are

16 dealing with, bystanders cannot be held culpable if they are

17 silently present. If this were the case, most residents of

18 opstina Prijedor would be culpable because of their presence

19 whilst atrocities are committed in that area.

20 These specific circumstances explain why we cannot

21 have it the American way, where US courts apparently expect a

22 bystander to voice some opposition or surprise if he were not a

23 party to the crime. I refer to the State v. Parker case.

24 In the Tadic case, we hold that the mere presence at

25 the scene, even having knowledge or reasons to believe, as

26 everyone may have had in those days, that a crime is to be

27 committed, is not in itself sufficient to establish aiding and

28 abetting under the Statute, because the conduct must be in

Page 8822

1 furtherance of the conflict. If there is only a passive

2 presence, how is that in furtherance?

3 The Defence has not found cases where visitors to Nazi

4 camps were sentenced because of their presence in those camps

5 without proof of any further involvement. The relevant factor

6 in post World War II cases cited by the Prosecution was the

7 involvement with the running of the camp, not the presence as

8 such. It was the running of the camp and being present there.

9 As far as presence was relevant, it appeared to be

10 interpreted as an encouragement because the accused was one of

11 those who was involved in the operation of the camp. Such

12 presence could, indeed, and we agree, be significant.

13 Consequently, we suggest that a visit to the camp does

14 not as such imply criminal responsibility, not being involved

15 with the operation of the camp. We also suggest that presence

16 in a camp is not in itself an encouragement to commit crimes.

17 Even repetitive presence does not alter this position, since

18 each presence, as we hold, should be judged on its own merits,.

19 If not, just as an example, English or continental Judges, for

20 example, would accept that regular visitors of football

21 stadiums, where, as we all know, a lot of violence is committed

22 by visitors, would establish a criminal responsibility.

23 The position of the Prosecution on this matter would

24 mean that having been seen several times doing nothing indicates

25 that you deliberately participated in the wrong doing. We

26 cannot accept that kind of collective responsibility. I refer

27 to page 6500, lines 22 up to 25.

28 For culpable presence, it will be necessary to prove

Page 8823

1 that the visitor acted in such a way that his presence was

2 knowingly a relevant factor to further the commission of a

3 crime. At this point, I may draw the attention of the Court

4 to the French text of Article 7 reading "aide et encourage". I

5 emphasise "encourage", which word may sound familiar to you.

6 The Prosecution has also raised the argument of the

7 Dachau case, that acting in a common plan to commit the indicted

8 crimes establishes criminal responsibility under the Statute, so

9 they say.

10 The fundamental problem of the Dachau judgment,

11 however, is the requirement that the accused by his conduct must

12 encourage, aid and abet or participate in enforcing the system.

13 We encounter here the same words, participation, aiding and

14 abetting and encouragement. I already discussed that.

15 The reference by the Prosecution to the Mauthausen

16 case in this context does not bring us much further, as again

17 all the defendants in that case were in some way in control or

18 stationed at or engaged in the operation of the Mauthausen

19 camp. Dusko Tadic is not accused of being in control or

20 stationed at or engaged in the operation of Omarska, Keraterm or

21 Trnopolje. The same applies for the reference to the Belsen

22 case.

23 The Almelo trial, as cited by the Prosecution, might

24 have defined a simple collective responsibility. However, the

25 bottom line in that case still is that an accused is only guilty

26 if he was present at the same time as the perpetrators, taking

27 part in a common enterprise. Collective action is more than

28 simply being present, and the Defence has, therefore, no problem

Page 8824

1 with this reference.

2 Criminal responsibility: we have no problem with this

3 reference, your Honour, as long as criminal responsibility

4 deriving from acting in a common plan to commit crimes emerged

5 from a common criminal intent to commit a crime. We accept that

6 this common intent implies that an accused is also culpable for

7 crimes that would be a likely consequence of carrying out the

8 common intent. But we strongly oppose, however, the idea (which

9 seems to be a part of Canadian law) that someone can be held

10 responsible for the consequences of a common plan he ought to

11 have known, whether he, in fact, knew of it or not.

12 According to a basic principle in criminal law, most

13 criminal laws held that someone is only responsible if he or she

14 is personally culpable because of intent or actual knowledge.

15 We strongly oppose the idea that someone can be held responsible

16 for the consequences of a common plan he ought to have known.

17 It seems just to limit the culpability for a common plan to

18 plans of criminal activity which are actually known to the

19 accused.

20 Responsibility is, therefore, only proved, we submit

21 to you, if there is sufficient proof of the common plan and the

22 accused's knowledge of it, or intent to have the plan (and its

23 foreseeable consequences) executed. This proof may be derived

24 from the behaviour of the accused and of those with whom he

25 allegedly collaborated.

26 Again, we submit that this proof should not be

27 speculative, for example, by the fact that the accused could be

28 associated with others of similar political ideas, but material.

Page 8825

1 Look to his behaviour. Evidence received by your Court

2 indicates that Tadic was not a well-informed participant of

3 actions undertaken by the military. On the contrary, we have

4 heard sufficient evidence of Dusko Tadic avoiding to be involved

5 with the army.

6 With regard to the actions of others than military, in

7 the eyes of the Prosecution as they said yesterday, everything

8 the accused did paralleled what everyone else was doing. This

9 position, your Honours, if proven, would indicate that the

10 alleged actions of Tadic were not a part of a plan, not a

11 knowingly involvement in an agreed plan, but on the contrary

12 individual actions without an agreed basis.

13 It certainly needs a higher level of commitment to

14 accept that someone acted in connection with others or in

15 concert with others to carry out a common intent.

16 Although it is not established that a domestic topic

17 is a part of customary international law, I might assist the

18 Court in explaining the Dutch law as cited by the Prosecution in

19 their submission on Article 7. Participating in a

20 criminal organisation, that is, a group of two or more persons

21 that have set out to commit crimes, establishes only

22 responsibility for any act committed by any other member of this

23 group if two requirements are met in Dutch law.

24 First, the group of two or more persons that has set

25 out to commit crimes should not be an incidental one, but a

26 structured cooperation. Second, the accused should have

27 participated in the structured co-operation by supporting acts

28 that may further, or are related to, the realisation of the

Page 8826

1 purpose to commit crimes.

2 If I may return to the law of this Tribunal, we do not

3 believe that the scope of Article 7(1) is so broad that the

4 Prosecution would not have to show that the accused acted in

5 connection with others, that he had an agreement. On the

6 contrary, we believe that the Prosecution has the burden of

7 proof of these elements of these requirements of individual

8 criminal responsibility under the Statute.

9 These are the limits, your Honours, of criminal

10 responsibility. To deduce from the presence, if proved, of the

11 accused at the scene of a crime that he participated in the

12 crime would, in our submission, be totally wrong.

13 Your Honours, we have come to the end of our arguments

14 and when I had prepared the closing argument I intended to wind

15 up all portions of our submissions as presented to you by each

16 of us. For the sake of time, however, I will not summarise the

17 observations we have been making on behalf of the Defence. I am

18 convinced, your Honours, that this Court has concerned itself

19 with all the details of the case and your questions have been

20 very encouraging for us to put forward our case. So I have

21 decided to confine myself to a formal conclusion rather than a

22 material one.

23 Our final submission to you is that the evidence

24 presented by the Prosecution witnesses to you leads inevitably

25 to the conclusion that the Prosecution has not met its burden of

26 proof as required. The evidence fails for the reasons as set

27 out to you in detail and, moreover, because of the convincing

28 evidence with regard to the alibi of the accused, which evidence

Page 8827

1 has aroused substantial and reasonable doubt. We trust that you

2 will give full weight to the legal argument raised by the

3 Defence and, in sum, we strongly believe you will not find Dusko

4 Tadic guilty as charged.

5 Let me close, your Honours, with Abraham Lincoln's

6 letter of 6th October 1883 to Charles Drake and others on civil

7 wars and what happens in them. I quote:

8 "Actual war coming, blood grows hot, and blood is

9 spilt. Thought is forced from old channels into confusion.

10 Deception breeds and thrives. Confidence dies, and universal

11 suspicion reigns. Each man feels an impulse to kill his

12 neighbour, lest he be first killed by him. Revenge and

13 retaliation follow. And all this ... may be among honest men

14 only. But this is not all. Every foul bird comes abroad, and

15 every dirty reptile rises up. These add crime to confusion.

16 Strong measures, deemed indispensable but harsh at best, such

17 men make worse by mal-administration. Murders for old grudges,

18 and murders for gain, proceed under any cloak that will best

19 cover for the occasion. These causes amply account for what has

20 happened in Missourie" or, may I add, in Bosnia.

21 This has happened all over the world when local

22 conflicts turn into civil war. Indeed, civil wars are not only

23 about armed conflicts but also about retaliation and false

24 allegations. These ingredients are a perfect recipe for a

25 miscarriage of justice when prejudiced witnesses. Who fit second

26 hand accounts into their own accounts, can proceed under the

27 cloak of a victim.

28 It would be a tragedy, your Honours, if this were to

Page 8828

1 happen in this case. Thank you.

2 THE PRESIDING JUDGE: We will stand in recess for 20 minutes.

3 10.30 p.m.

4 (The Court adjourned for a short time)

5 10.50 a.m.

6 THE PRESIDING JUDGE: Miss Hollis, would you like to begin the

7 Prosecution rebuttal?

8 MISS HOLLIS: Thank you, your Honour. In fact, your Honour,

9 Mr. Keegan will begin the Prosecution rebuttal with a very short

10 discussion of some points concerning issues of international

11 armed conflict. Then Mr. Tieger will speak to you about

12 evidence concerning the character of the accused, inconsistency

13 in his testimony and prior statements and also between his and

14 other witnesses. Then I will speak with you very briefly about

15 some of the factual issues raised by the Defence and some

16 additional points of law. So at this time I would ask

17 Mr. Keegan to come forward.


19 MR. KEEGAN: Thank you, your Honour. I would like to first address a

20 point raised by Judge Stephen with respect to the attack on

21 Hambarine. That attack did, in fact, come after the date of the

22 technical withdrawal of the JNA which was, as publicly

23 pronounced, 19th May, and the attack on Hambarine, of course,

24 not beginning until 23rd May.

25 But, of course, we would then reference you to the

26 facts which indicate that the JNA did not withdraw, including

27 Prosecution Exhibit 60, the United Nations resolution imposing

28 sanctions on the Federal Republic of Yugoslavia in part for its

Page 8829

1 stay to withdraw its forces from Bosnia-Herzegovina. That

2 resolution was dated 30th May 1992.

3 What I wanted to talk about briefly was the meaning

4 and language of the Nicaragua case, since there have been

5 questions about whether the requirement is to be an agent or

6 organ, and then briefly the citizenship issue.

7 JUDGE STEPHEN: The date of the takeover of Prijedor was?

8 MR. KEEGAN: Of Prijedor was 30th April 1992.

9 JUDGE STEPHEN: Well before, in other words, a withdrawal?

10 MR. KEEGAN: Yes, your Honour.

11 JUDGE STEPHEN: The fact that it was bloodless does not necessarily

12 stop it being a hostile act?

13 MR. KEEGAN: No, in fact, the text of Nicaragua and the other

14 decisions or documents we referenced talk about armed force, not

15 that there has to be actual combat in the sense of blood being

16 shed.

17 With respect to Nicaragua, the language actually used

18 is "the acts of other groups that amount to or can be

19 categorised as such to equate them as an organ or acting on

20 behalf of the other entity", the other State. So that is where

21 that language comes from, Nicaragua. The word "agent" is used

22 in the Appeals Chamber decision and by the Prosecution as a

23 shorthand for the term "acting on behalf of". So that is where

24 the word "agent" comes from. But that is the actual standard

25 found in paragraphs 109 and 115 in the Nicaragua decision. It

26 is the acts of the groups, such they can be considered as an

27 organ of or acting on behalf of the other state.

28 With respect to the issue of the evidence of

Page 8830

1 international armed conflict, first, I would note that in citing

2 some of the Prosecution evidence Mr. Orie curiously neglected to

3 mention Prosecution Exhibit 180, the notice published by the

4 second army of the Yugoslav Army in the Serbian State paper

5 indicating its continuing involvement in the armed conflict in

6 the Trebinje region of Bosnia-Herzegovina throughout the summer

7 and fall of 1992, in addition to the conclusions raised by

8 Mr. Vulliamy in which he was linking the similarity of what he

9 saw in Vlasenica to the observations he made in Croatia and the

10 JNA operation there.

11 With respect to this absurd outcome argument raised

12 first in the appeal brief, we would note that, in fact, since it

13 is recognised in international law that a conflict can be

14 rendered international by the acts of other groups, irregulars

15 or mercenaries acting on behalf of a state, it is clear then

16 that the acts committed by those groups render the victims of

17 those protected persons in the context of an international armed

18 conflict.

19 When you put that in the context of armed conflict in

20 Bosnia-Herzegovina in particular, it is an interesting dilemma

21 that the Appeals Chamber has produced by the nature of its

22 decision on this issue, because in fact it declares a conflict

23 in Bosnia prior to May 19th as an international armed conflict.

24 At that time there is no doubt that units of the JNA included

25 Bosnian-Serb soldiers and included paramilitary units and police

26 forces acting at the direction of the JNA committing acts

27 against Bosnian Muslims. Apparently, there is no question that

28 at that time the Bosnian-Muslim victims would be protected

Page 8831

1 persons in respect of those acts committed by Bosnian-Serb

2 persons against them at the direction of JNA.

3 The dilemma there is what status are the Bosnian-Serb

4 civilians who would have then been subject to acts, perhaps, in

5 combat or in reprisal? One must assume that the Appeals Chamber

6 would find that they would have been protected persons as well

7 at that point.

8 If that is, in fact, the case, post May 19th where the

9 facts clearly indicate that this redesignation, public

10 redesignation, of the JNA into the VRS and the Yugoslav Army,

11 that that part of the army designated as the VRS continued to

12 act in accordance with the plans and strategy initiated by the

13 JNA, that their acts continued to be committed against Bosnian

14 Muslim and Croat civilians, and if, in fact, the determination

15 is reached that that continued to be an international armed

16 conflict, it is our submission the Bosnian-Serb civilians who

17 may have been victims during that time (and the evidence as to

18 that has not been presented in this case, so this is purely a

19 legal issue) that they too would have continued in their status

20 as protected persons. There is the issue that arises in

21 citizenship.

22 It is a recognised doctrine that in cases of state

23 succession (which we have here) that there is the right of a

24 presumption of citizenship in the new entity so that no one is

25 deprived of the protection of citizenship of a state, but there

26 is also the right of election, which we note in our response to

27 the Defence reply on the Prosecution pretrial brief which we

28 submitted on April 26th. There is a discussion in there on this

Page 8832

1 issue. It is that right of election and the other issues

2 regarding citizenship which the Appeals Chamber, frankly,

3 ignored in its decision on this issue. Where we find support

4 for the fact that based on the facts you have the declaration in

5 January of the constitution of the Serbian Republic of

6 Bosnia-Herzegovina, promulgated in February '92 (not December,

7 as mentioned by Mr. Orie), where they declare themselves

8 citizens of the Federal Republic of Yugoslavia, as well as the

9 public statements that followed thereafter where the elected

10 officials clearly indicated the intent was to establish Serbian

11 citizenship not only in the entity but also in the Federal

12 Republic of Yugoslavia. We believe that those statements give

13 an indication of how those people considered the status of their

14 citizenship.

15 So it is from those documents and with the recognised

16 issues of the law that exist that we find support for the fact

17 that you can find an international armed conflict and that

18 persons on both sides were protected persons.

19 I would note just the one final issue, because

20 Nicaragua was addressed so much, and that is, in fact, that in

21 paragraph 219 of that decision the Court found that the conflict

22 between the Contras and the Nicaraguan armed forces was an

23 internal nature, despite the support of the United States. But

24 we find here that the facts are substantially different which we

25 have noted in our brief and I will not cover again.

26 Finally, just on a related point on the issue of

27 plunder: of course, "plunder" is the term used in Article 3(e)

28 of our Statute, which is why it was used by the Prosecution in

Page 8833

1 its submissions and in the indictment. "Pillage" is, in fact, a

2 term used in the Geneva Conventions and in The Hague Conventions

3 and Regulations from which our Statute is drawn, but you will

4 find both in, for example, Blacks law dictionary, the dictionary

5 of the international law of armed conflict of the ICRC and in

6 military law, in fact, the military Judges bench book for the

7 United States, that "pillage" and "plunder" are synonymous

8 terms. The basic definition is to unlawfully seize or

9 appropriate public or private property by force or means of

10 violence; so, in effect, fact robbery, if you will, as mentioned

11 by Mr. Kay.

12 I would note just for the Court that we believe the

13 reading of the Defence of the term of the language of the

14 indictment is incorrect. In that paragraph where we speak of

15 "plunder", it is alleged that the accused and others destroyed

16 and plundered homes and other property. We were using the word

17 "plunder" in the traditional sense, meaning they went in and

18 took property as well as destroyed the homes, not that they

19 actually took the homes, so, just to clarify that point.

20 Now I would invite any questions the Court may have on

21 these issues?

22 THE PRESIDING JUDGE: We have no questions, thank you, Mr. Keegan.

23 MR. TIEGER: Your Honours, with respect to identification procedures

24 the Defence first raises the theoretical concern raised by

25 Dr. Wagenaar about the photo line up which he otherwise

26 approved, and that was that he did not know where the foils

27 where from. Mr. Wladimiroff suggests this is somehow still an

28 issue, despite the fact that nine of the 12 foils turned out to

Page 8834

1 be from former Yugoslavia. Now Mr. Wladimiroff complains that

2 we do not know exactly where in former Yugoslavia they are from,

3 and this is completely irrelevant.

4 Just very quickly to remind the Court, this issue

5 arose when the doctor theorized that, perhaps, subjects from

6 former Yugoslavia would be able to distinguish among the ethnic

7 groups. He then later conducted an experiment in Belgrade to

8 test that. As he said, "I was quite reassured after seeing

9 those results that nothing has gone grossly wrong in the

10 selection of the foils". Nevertheless, he had still had some

11 lingering concern that perhaps none of the people he had shown,

12 none of those foils, had been from former Yugoslavia and,

13 therefore, the experiment which asked people to categorise the

14 people, the foils, as Macedonians, Croats, Slovenians and so on

15 might not have been possible.

16 He did say, however, that this concern would be

17 entirely alleviated if he found that eight or nine of the

18 photographs of the foils were persons from former Yugoslavia.

19 That is what he was discussing throughout his entire discussion

20 of that issue, persons from former Yugoslavia. That turns out

21 to be the case.

22 Furthermore, I would remind the Court that during the

23 course of this case many witnesses have discussed this issue and

24 they have uniformly stated that it is impossible to distinguish

25 between Serbs, Muslims and Croats by facial features. Indeed,

26 the accused himself at pages 44 and 58 of his May record of

27 interview says the same thing.

28 But now despite the fact that Dr. Wagenaar's concerns

Page 8835

1 are wholly alleviated, Mr. Wladimiroff insists on this new

2 issue. This effort to impose both an hypertechnical and

3 unfounded standard on a valid test epitomizes the Defence attack

4 on valid procedures which yielded highly probative results.

5 Mr. Wladimiroff also attacked witnesses for stating

6 that they did not watch or read about events from former

7 Yugoslavia or this trial. Apparently, he finds it hard to

8 believe that people do not want to come home after a full day's

9 work and settle in and watch stories about the events which

10 destroyed their homes, killed members of their families and keep

11 them awake at night with nightmares.

12 I am not suggesting that there are not some people who

13 may be drawn to such things, but I think logic and experience

14 tell us it is extremely predictable that people would say, "I do

15 not want to discuss this, I do not want to think about it,

16 I know all I need to know about it". Indeed, that is part of

17 the reason we have a Victims and Witnesses Unit here because

18 victims have to come to the Court and discuss those very issues.

19 Mr. Wladimiroff also suggests that Senad Muslimovic

20 must have seen pictures of the trial since there was daily

21 coverage of the trial by [redacted]

22 (redacted)

23 (redacted)

24 I wonder just how likely it is that a Bosnian refugee with a low

25 level job would pay good money to get a channel to watch lawyers

26 argue in a foreign language.

27 This kind of speculation by the Defence appears

28 throughout their discussion on the subject. They insist, for

Page 8836

1 example, that if Sead Halvadzic did not buy newspapers, he must

2 have seen some photos on the street as he was walking by. They

3 cite the number of references to Dusko Tadic in articles in

4 [redacted].

5 (redacted). They

6 could be about anything. They could be about Judge Goldstone,

7 could be about the possibility of a permanent Tribunal, and so

8 on.

9 Furthermore, there was no information on the number of

10 photos which appeared in those articles and, more importantly,

11 there was no information on where in the newspapers those

12 articles appeared, certainly no information about their

13 appearance on the front page. I would also remind the Court

14 that in the 80 plus articles which Mr. Deichmann submitted,

15 which were allegedly examples of newspaper references to Tadic,

16 at least 10 did not have any mention of the name "Tadic" in them

17 at all.

18 The Defence also read an extract or plucked an extract

19 from the testimony of Kasim Mesic and asked the Court to focus

20 on a particular portion of that extract. I simply want to

21 remind the Court about this witness, if you recall him, and he

22 was an older man who clearly was not finding being a witness in

23 Court and communicating very easy. He struggled to make clear

24 what he was saying about the procedures. Even beyond that,

25 however, even if one were to apply a completely mechanical

26 interpretation of what he said, it is clear there was no

27 meaningful transgression of the procedures, and that he was

28 relating basically that he was told or asked to look at these

Page 8837

1 photographs and see if he could recognise a subject.

2 Just one mention about the witness Draguna Jaskic in

3 case there is any lingering confusion about that. She was just

4 shown one photospread. Then later you heard from an

5 investigator about her reaction during the course of viewing the

6 photographs in that photospread. You heard her explain to you

7 what that reaction was about.

8 Perhaps it is best just to cut to the chase on this

9 issue. The reason we do not have eyewitnesses come to court and

10 simply tell us whether the person in court is the individual who

11 committed the crime, according to Dr. Wagenaar, is that it is

12 relative easy to figure out in court who the accused is. This

13 lowers the probative value, but does not eliminate it, according

14 to him. So it is prudent to make reasonable efforts to reduce

15 the possibility that some deduction or guessing may be involved.

16 Dr. Wagenaar also pointed out that there are certain

17 witness who fall into a category with some special

18 significance. Those are people who did not know the accused

19 before they saw him at the place where the crime was committed

20 and, therefore, if they can pick him out of a group of similar

21 looking people, the only logical explanation is that the accused

22 was at the scene of the crime.

23 As Judge McDonald correctly noted, Dr. Wagenaar

24 indicated that violations of his recommended procedures did not

25 invalidate a photospread or a test; it simply made it more

26 difficult for the Court to conduct its job of weighing the

27 evidence. He talked about looking for -- I think his quote was

28 -- "really gross violations". We were provided some examples

Page 8838

1 of really gross violations by Dr. Wagenaar based on an article

2 he had written in 1990. I will not go through all those with

3 you. Let me just recount a few of those factors: Perpetrators

4 wearing a full mask, with a one person line up, every foil

5 different in some significant way from the accused with a small

6 lineup size, perhaps three or four, a lineup of three people

7 with the suspect the only person in distinctive clothing,

8 witnesses talking to one another during the course of a lineup,

9 witnesses being told that the suspect was in the lineup and

10 suggestions to witnesses to change their identifications. The

11 Court can find all the rest of those at 5842 through 43.

12 You can be certain that you will never find on a list

13 of really gross violations a photo lineup procedure and photo

14 lineup of the type that was used here. I remind the Court that

15 we heard from Mr. Reid not about procedures in general but the

16 procedures that were used for the identification witnesses who

17 testified in this case. This is what it involved.

18 There were 13 photos, more than twice the acceptable

19 number, a photospread which was subjected to the Doob and

20 Kirschenbaum test and approved, witnesses asked to look

21 carefully at the photographs and if they recognised anyone to so

22 indicate. I should note that Dr. Wagenaar initially suggested

23 that the absence of an explicit instruction saying that the

24 witness -- suspect might not be in the photo lineup could be a

25 problem, but he later acknowledged that studies simply indicated

26 that there was a difference between situations where the

27 witnesses were told that the suspect might not be in the lineup

28 and where witnesses were told affirmatively that he was. He had

Page 8839

1 nothing in particular to say about a situation where neither

2 instruction was given as here.

3 No photo was shown here to a witness for a longer or

4 shorter time than others. In fact, the witnesses controlled the

5 photo book. They were handed it and they perused it. The

6 selection of the photos was immediate. There was no lengthy

7 deliberation. The entire process from instruction to signing

8 the back of the photograph took approximately three minutes in

9 all cases. The witnesses expressed certainty at the

10 identification. None of the foils were selected. There was no

11 repeated testing. The witnesses were alone. They were not told

12 to look more carefully at one photo than another. They were not

13 given feed back about their choice and the sequence of the

14 accused's photo in the photo lineup was changed for each

15 witness.

16 THE PRESIDING JUDGE: Excuse me, Mr. Tieger, I think that Judge

17 Stephen is right in his questions that he has raised before,

18 without casting any aspersions on Mr. Reid, that his testimony

19 was conclusory and no indication that he was there when this

20 test was being administered. The Defence, I imagine, if they

21 wish to challenge the procedures before Dr. Wagenaar testified,

22 could have called the people who actually conducted the test; or

23 if it is incumbent upon the Prosecutor, the Prosecutor could have

24 called the people who actually conducted the test other than

25 Mr. Paepen.

26 MR. TIEGER: Mr. Reid is the chief investigator who supervises the

27 conduct of the entire investigation and the performance of the

28 investigators who conduct these photo lineups in the course of

Page 8840

1 the investigation and his information, I would call it not

2 conclusory, it was based on ----

3 THE PRESIDING JUDGE: I said conclusory.

4 MR. TIEGER: Yes, I am sorry, your Honour. It was based on the

5 information he received from the investigators relating to each

6 and every identification. I remind the Court that part of the

7 purpose of doing so is the Prosecution has an obligation to

8 disclose exculpatory evidence. Mr. Reid has to determine

9 whether there is a problem with the identification and he has to

10 discuss that with the investigators both for the purpose for

11 which he appeared in court and for that reason as well. He is

12 conducting a highly important task and he is aware of it.

13 One final point on this subject. Because Dr. Wagenaar

14 suggested that it might be helpful for the Court to know whether

15 or not there were other photo identifications conducted, so you

16 would know whether or not these were only four of 100 and the

17 other 96 failed and these might be the results of guessing, the

18 Prosecution produced evidence of all those tests.

19 Now we find that Mr. Wladimiroff complains that the

20 Prosecution did not produce those witnesses and he was not

21 allowed to cross-examine them. It is beyond me why he is

22 complaining that there is not more evidence in this case, and

23 I also remind the Court that Dr. Wagenaar himself testified

24 specifically that four people was plenty. He finds any more

25 identification witnesses needless. But then Mr. Wladimiroff

26 goes on to speculate that the Prosecution must not have produced

27 these witnesses because there was something wrong with the

28 identification. If this is the only reason he can think of, it

Page 8841

1 is rather surprising coming from someone who has complained

2 about the difficulties in getting even non-traumatized witnesses

3 to Court. This kind of speculation should be disregarded. In

4 any event, if Mr. Wladimiroff had a problem with that, the

5 Defence could have cross-examined Mr. Reid about the procedures

6 used with those other witnesses. Certainly no basis for any

7 suggestion that any procedure other than the one used for the

8 four witnesses mentioned would have been employed or that it was

9 any different.

10 During argument, Mr. Wladimiroff asked rhetorically

11 where the picture of Dusko Tadic painted by Miss Hollis in her

12 closing address originated from. He wondered whether it was

13 simply the stereotypical image of a Serb. I am not sure I know

14 exactly what that stereotypical image is supposed to be, but

15 I do know that Miss Hollis' closing address was a detailed

16 recitation of the evidence. The image of the defendant which

17 emerged from her closing address was based on the defendant's

18 deeds and on the defendant's words.

19 The Defence asked how can anyone call the accused a

20 fanatic, although I think the Defence was the first to raise

21 that term, simply because he ran a local plebiscite.

22 Miss Hollis has already addressed the significance of both the

23 plebescite to Serbs as well as the lies the accused told about

24 that plebiscite. But, in any event, that is far from the only

25 evidence which bears on this issue.

26 Just to name a few, the accused is the man who worked

27 at gathering weapons before the war, organised war assignments,

28 attempted to get intelligence on the number and nature of

Page 8842

1 weapons possessed by the legitimate police, discouraged Serbs

2 from participating in joint activities with Muslims, angrily

3 told a neighbour in Kozarac, "This will be greater Serbia, it

4 will all be ours and Muslims will not be there any more".

5 THE PRESIDING JUDGE: Where do you get the information regarding the

6 prior acts, not the angrily telling the neighbour? I know that

7 is Mr. Sivac.

8 MR. TIEGER: That is out of the work report, your Honour, and in the

9 materials we provided I believe there is specific reference to

10 the page numbers of the report on which that appears. By "work

11 report", of course, I am referring to the report prepared by the

12 accused on his work for the SDS between 1990 and 1993.

13 The accused is also the man who told a Muslim reserve

14 police officer, "You will all disappear from here". He is the

15 man who at home, when the mask was slightly down, called Muslims

16 by derogatory epithets "balijas". I ask the Court just to put

17 that in whatever context is appropriate for you and that

18 illuminates fully what someone reveals when he speaks about a

19 member of any national, religious, racial or ethnic group and

20 says, "Look at the blank going to church or synagogue or shrine

21 reason or whatever".

22 The accused is also the man who boasted how he

23 liberated Kozarac to Mirsad Blazevic. The accused is a

24 self-described SDS activist and enthusiastic supporter of the

25 creation of Republika Srpska even when it meant risking his

26 life. That is out of the work report as well. That is the

27 accused's own words. He is also a participant in the cleansing

28 assaults and murders of Muslims in opstina Prijedor.

Page 8843

1 The Defence remind the Court about some of the

2 evidence concerning the political philosophy of the SDS and

3 there was considerable, particularly in the early stages of the

4 case, but assert that none of this has been connected in any way

5 with the accused because he professes never to have read

6 political tracts.

7 First of all, there is an obvious connection. The

8 accused is an "earnest member" of the SDS. To understand what

9 that means, one must understand the philosophy of both the Serbs

10 past and present, as we now do. The philosophies articulated by

11 Cubrilovic and Moljvic, the expulsion of non-Serbs, was echoed

12 by Radoslav Brdjanin in Banja Luka, the Head of the Krizni Stab,

13 who said that there would only be two per cent non-Serbs in what

14 was to be Republika Srpska, and as you heard from Vasif Gutic

15 who was also echoed locally by Slobodan Kuruzovic.

16 You have seen those articles and the language and the

17 nature of the SDS philosophy. To suggest that someone who is a

18 member of that group does not understand the nature of the

19 ideals which are embodied in that group defies logic, and again

20 asks the Court to put it in appropriate context. The other day

21 Miss Hollis used an analogy with the Ku-Klux-Klan -- I think a

22 dozen groups which would suffice. I do not think anyone could

23 credibly suggest that anyone who had not read political tracts

24 by leaders of that group would not know what the group stood

25 for.

26 The Defence ignores all that. They try to suggest

27 that the accused's involvement in the League for Peace stands in

28 contradistinction to that, that he was selected because he was

Page 8844

1 regarded as a man of peace. We know that he was selected

2 because, as we heard from the members of that group, they did

3 not want to have a monoethnic group and they wanted to be sure

4 they could get past the Serbian checkpoints, and having a Serb

5 with them was the best way to achieve that.

6 We heard about the work report yesterday from

7 Miss de Bertodano. I think little needs to be said about the

8 Defence effort to characterise that work report. It may be a

9 pathetic document, but it is also an extremely revealing one.

10 If the Defence does not acknowledge that, certainly the accused

11 does. On page 6150 of his testimony he noted that, "A lot of

12 documents that you have offered here in evidence against me were

13 found with those papers", by that he means in Germany. "If

14 I had thought about that, I would have never have taken them

15 with me to Germany".

16 With regard to what the defendant or the accused knew

17 at the time he was writing that about allegations against him,

18 in general, I point the Court specifically to page 6149 in which

19 the accused discusses the information he had at the time. He

20 had read some information in the Serbian paper. He linked the

21 Monika Gras's visit in January '93 to himself and he knew that

22 it concerned activities in Kozarac. That stands in addition to

23 the information discussed yesterday about the conversation he

24 had concerning the paper in Zagreb with Nikola Petrovic. Beyond

25 that, the fact is that everybody knows this kind of information

26 cannot get out. The fact is that the accused had, as the

27 intended recipients of this work report, the media in former

28 Yugoslavia, not just Serbian leaders.

Page 8845

1 I think we can see the reluctance to discuss even the

2 most minor aspects or involvement with the crimes of opstina

3 Prijedor in the kind of "see no evil, hear no evil, speak no

4 evil" attitude we saw from many of the Defence witnesses in

5 Court.

6 I want to address one last point and that is

7 Miss de Bertodano's assertion that the accused should be

8 credited because he has told the same story from the start. The

9 Defence says, well, he is not tailoring his testimony. In fact,

10 I think they said that his memory just got better over time.

11 That is a memory principle I did not hear Mr. Kay express when

12 he was discussing the Prosecution witnesses, but be that as it

13 may, we can ask the question, is it possible for people to

14 remember things on an earlier occasion that they did not

15 recall? Sure, of course it is. Does that, however, explain

16 what happened here? A look at the evidence indicates it clearly

17 does not.

18 Miss de Bertodano gives as an example the accused's

19 alleged realisation that his first day of work was not 17th, as

20 he had previously stated in May 1995 and again in December 1995,

21 but actually the 16th. She told us that memory was sparked by

22 the documents showing dates and times. That is why when he came

23 to Court he had a different version. That is what the accused

24 told us in Court, but that is not what the evidence shows.

25 We have Exhibit 361. It was introduced into

26 evidence. It is a list of all the dates and times which the

27 accused worked, June, July, August. It is much easier to read

28 than the rosters themselves. You can measure it against the

Page 8846

1 rosters. At least for June or July, which I am familiar with,

2 it is completely accurate. The Defence wants you to believe, and

3 has asserted, that even though he had it with him, he

4 disregarded it, he did not use it. Again Miss de Bertodano had

5 no choice because that is what the accused said on the stand,

6 but that is not what the evidence shows. You heard from Miss

7 Hollis how the accused actually used the document and changed on

8 the same date from saying he was not on duty to giving the

9 specific time he was on duty after referring to this document.

10 There are other things that the accused said about

11 June 16th contrary, which is the date he said in his May and

12 December interviews that he was mobilized but did not serve,

13 despite the fact that that date shows him on duty at the

14 checkpoint, according to the rosters, and he says he was not on

15 duty. How does he remember that in his interviews? He says

16 that as he was leaving the police station that day -- there is a

17 very detailed description of the events of that day -- he

18 remembered that he was given his military book and in that book

19 there was the stamp for that day which showed his mobilization.

20 That stamp is June 16th and it is the same date that appears in

21 military book which is in evidence.

22 If I may, let me just take a brief look at this same

23 story the accused has supposedly been telling from the start,

24 the story which, as you heard from the Defence, is repeated in

25 virtually all details -- that was the phrase they used -- by his

26 principal alibi witnesses, his wife and his brother. What

27 I particularly want to emphasise is not simply the change in

28 accounts, although those are certainly substantial enough to

Page 8847

1 undermine any notion of alibi, but also the way in which they

2 reflect an obvious attempt to match stories.

3 Going through them quickly (and these are just some of

4 them and I realise we have time concerns and I want to leave

5 Miss Hollis sufficient time), the accused said when he was first

6 interviewed about this particular subject that his family left

7 Kozarac in April '92, first left Kozarac in April '92, he and

8 his family with the priest, and returned at the end of April.

9 Mira Tadic then testified in court ----

10 THE PRESIDING JUDGE: Can you give us a page on that of the

11 interviews? We might read the entire two interviews, but it

12 would make it easier. As you go through them, if you can give

13 us, if you are going to give any more?

14 MR. TIEGER: I would be happy to.

15 THE PRESIDING JUDGE: Or, as we had indicated to Mr. Kay, you can

16 read the transcript and then give us the cites after you have

17 the transcript.

18 MR. TIEGER: Unfortunately, I have some of them on other pages.

19 THE PRESIDING JUDGE: OK. Those you do not have, you may substitute

20 later.

21 MR. TIEGER: As I said, he first said in his interview that he and

22 his family left Kozarac with the priest in April and returned at

23 the end of April. Then Mira Tadic testified that the family

24 left on April 1st and there was no priest involved. The accused

25 testified afterwards that, indeed, they left at the beginning of

26 April and there was no priest involved.

27 The accused said in his record of interview that Mira

28 Tadic came back from Kozarac with him the next morning. Then

Page 8848

1 she testified that instead she had gone on to Kozice, as you

2 heard, and did not come back to Kozarac. So the accused

3 testified and said, "Mira Tadic went on to Kozice and did not

4 come back". In fact, they both say he drove her and the family

5 to Kozice. The accused said in his record of interview that in

6 the first week of May Ljubo drove the family to Banja Luka.

7 Then Mira Tadic testified that in the first week of May, on May

8 3rd specifically, the whole family, including the accused, left

9 with the priest for Banja Luka and returned to Kozarac after a

10 few days. So the accused testified that on May 3rd the whole

11 family went to Banja Luka with the priest and returned to

12 Kozarac after a few days.

13 Miss de Bertodano also recounted for the Court how the

14 accused was in Kozarac for one day at the beginning of June and

15 then overnight during the second week with a trip to Trnopolje

16 in between. She said specifically that in all of his

17 interviews, and she identified those, the one German and the two

18 Prosecution interviews, he spoke of visiting Kozarac, going to

19 his family home or in Banja Luka. But, in fact, it is not what

20 the accused did.

21 After telling the German authorities that he was never

22 in Kozarac between the time he left just before the war and

23 returning to join the traffic police, they continued to press on

24 the point. They were very insistent on that point. When he

25 said he did not return during that time period, they said, "I am

26 now asking you expressly, during this period of time were you

27 only in Banja Luka and nowhere else?" and he said, "I was only

28 in Banja Luka". He later said that he slept there every night

Page 8849

1 and, to keep that story consistent, he related that he did not

2 go to Trnopolje until after he joined the reserve police. He

3 did not go to Trnopolje until late June.

4 Other differences in this version can be found at

5 pages 63 through 68 and page 78 of the May record of interview,

6 but I will submit that as a whole package.

7 THE PRESIDING JUDGE: Did Mr. Tadic have an attorney at that time

8 with the German authorities?

9 MR. TIEGER: Yes, your Honour.

10 THE PRESIDING JUDGE: Is that indicated in the record of interview?

11 MR. TIEGER: I think it is indicated directly in the record of

12 interview and also by Mr. Huebel. It is also indicated, I might

13 add, in the motion submitted by the Prosecution in connection

14 with the admissibility of this matter which was supported by

15 declarations and that issue was extensively addressed in that

16 motion. After it was addressed, the Court may recall, the

17 Defence withdrew its motion.

18 In a similar manner, Miss de Bertodano, in support of

19 the position that the story has always been the same, reminds

20 the Court that we have talked about uniforms during the course

21 of this case, and again in all three interviews the accused

22 talks about them. In each one she said, "We hear about the

23 camouflage clothes given by Ljubo". Again that is not the

24 case.

25 In his German interview again, he was specifically

26 asked whether he had a camouflage or other military uniform or

27 whether he had ever worn one. The accused said, "No, no, as far

28 as the camouflage uniform is concerned". He just had a blue

Page 8850

1 police uniform which he wore at the checkpoint. The Defence

2 attempts to explain this. They say he did not consider the

3 uniform that his brother gave him a proper uniform. If that was

4 not considered a proper uniform, then we have to ask who gave

5 him the uniform that he then talks about in his May record of

6 interview when he says that during June 1992 he was in a

7 multi-coloured uniform? Again I will supply the Court with

8 citations which indicate the progression of this account.

9 Miss Hollis did address in her closing address the

10 time period between June 15th and June 18th. I invite the Court

11 to look very carefully at the accused's description of this and

12 compare it to that provided by Mira Tadic, in particular.

13 I would simply note in supplementing that that the accused goes

14 on to talk about 19th and 20th, and throughout that entire

15 period there is no mention of Mira Tadic, which is strikingly in

16 contrast with her testimony and in contrast with the accused's

17 testimony in Court.

18 I should also note that the origin or at least the

19 beginning of this effort to co-ordinate stories began when the

20 accused was in prison and sent a letter to his wife. That is

21 under circumstances where he knew his letters would be

22 read. The prisoners had to submit letters in unsealed envelopes

23 to be mailed because they were going to be read before being

24 mailed, so he tried to bury information to Mira Tadic in that

25 letter. What he said was in Exhibit 354(b): "We have been

26 divorced since 1985 and have only been seeing each other once in

27 a while. Remember that we spent each night together from 15th

28 to 20th June 1992. I worked for the traffic police in

Page 8851

1 Prijedor. I hope you will be able to testify."

2 There was also discussion about the certificate which

3 we have heard much about, the certificate issuing Mr. Tadic an

4 automatic rifle and 300 rounds of ammunition on May 4th. That

5 is Exhibit 148. Miss de Bertodano acknowledges that that

6 certificate was discussed and that the accused's answer was,

7 "I did not receive any weapons". She says that the accused's

8 answer was, "I did not receive any weapons from the staff of the

9 Territorial Defence." That is not entirely correct. The full

10 answer was, "I know nothing about it". Only then does he go on

11 to deny its contents. This is in a context where all the

12 questions and answers are interpreted to the accused before they

13 go on to the next one. So what on earth was the accused

14 referring to as "it" if not the certificate which is explicitly

15 referenced in the German interview as you will see immediately

16 before the question and answer, and in which the question

17 is, "What can you tell us about that certification?"

18 Miss de Bertodano noted that there was a witness who

19 testified about that and said there was some question about

20 whether or not documents had been produced to Mr. Tadic, and

21 asserted that the witness's answer was, "Well, they were always

22 produced" but he was not specific about this case. I do not

23 know how this witness could have been more specific. He said at

24 page 6440, "We did show that document to Mr. Tadic. He did have

25 an opportunity to see it and become acquainted with it". He

26 then said basically the same thing three more times, and that

27 the last time he was actually holding the certificate as he was

28 saying, "We gave him the opportunity to look at the document, to

Page 8852

1 read it and Mr. Tadic did see the document and Mr. Tadic could

2 read the document. He was granted the time and possibility to

3 do so".

4 The defendant knew that was not a good answer.

5 THE PRESIDING JUDGE: Did Mr. Tadic testify, though, that he had not

6 seen the certificate?

7 MR. TIEGER: Yes, he did, your Honour. He testified specifically he

8 had not seen the certificate.

9 THE PRESIDING JUDGE: Because I asked, I think Miss de Bertodano a

10 question about that. I did not really remember whether he had

11 said he had not seen it or whether there was just some confusion

12 about it. OK.

13 MR. TIEGER: I think the accused appreciated early that that was a

14 problem. So, in May 1995, when Mr. Reid was talking to him

15 about weapons he had, in speaking about his automatic rifle he

16 said, "Oh, and as far as this weapon goes, I went to Prijedor

17 and I got a blank certificate from a reserve military personnel

18 named Slobodan Bokan and I filled it in at the beginning of

19 May." Again I will provide you with the cite for that. That

20 turns out to be something of a problem for the accused, as even

21 Miss de Bertodano noted, because the certificate says the "Banja

22 Luka Territorial Defence" which is something of a coincidence

23 because, indeed, the accused was in Banja Luka on May 4th and is

24 even a greater coincidence because, as you may recall from

25 Exhibit 145, there was a general mobilization in the autonomous

26 region of Krajina from Banja Luka on May 4th.

27 So the next thing that happens is that Ljubomir Tadic

28 comes to court and he takes credit for giving the accused a

Page 8853

1 certificate. He says that happened in June when they were

2 coming back from a trip to Kozarac. He says he filled it out.

3 Of course, this is troublesome because the accused has said he

4 already had a certificate. So, finally, the accused comes to

5 court and says, "Oh, well, I had two certificates, one from

6 Ljubo and one from Prijedor", except that, unlike Ljubo, he has

7 actually seen the certificate and he knows the date on the

8 certificate. So he says, unlike Ljubo, that the certificate was

9 filled out on May 4th, the date on the certificate, and that he

10 filled it out -- the same story from the start.

11 There are a list of other movements, shifts,

12 alterations of the accused's version. I would urge the Court to

13 look, for example, at the accused's testimony 6068 through 6069

14 and compare it to his December interview at pages 23 to 24 for a

15 change in his story about Witness W, after Witness W came in and

16 denied being part of the conflict in Kozarac; for a change in

17 his story about Milan Vlacina at page 6071 through 72, in

18 contrast to his May interview on page 67 and the December

19 interview on pages 13, 15 and 20; also for a change in the

20 accused's story about sleeping in a camping caravan at the

21 Orlovci checkpoint, after Miroslav Brdar came in and said, "No,

22 no, we never slept at the caravan, in fact, there was no

23 caravan". You can find that in the December interview at page

24 60 and the testimony of the accused at page 6075.

25 Finally, I would direct the Court, as it occurs to me

26 now, to an interesting section in the work report that has not

27 been discussed. In that work report the accused says the

28 following on page 11: "Not to this day was I able to understand

Page 8854

1 who needed all that and what it was all about, because I had

2 spent time on reserve duty more than seven months while they who

3 insisted so much in persecuting me never did more than two

4 months, more than seven months".

5 June 16th to, let us say, mid December or late

6 December which, I believe, is the date that appears in the

7 accused's military book, is just a little more than six months.

8 But it is more than interesting that if you count back to May

9 4th, to that December date, you have a time period which is in

10 fact more than seven months. I invite the Court to make that

11 comparison.

12 THE PRESIDING JUDGE: I do not understand that. What is the

13 significance of that?

14 MR. TIEGER: The May 4th document, your Honour, indicates a

15 mobilization which would be considered the beginning of a kind

16 of service, even though someone might not be active at the

17 time. The accused has told the Court that his mobilization, in

18 fact, did not begin until he started with the reserve police on

19 June 16th. In the work report he asserts that he was, in fact,

20 on reserve status for more than seven months.

21 THE PRESIDING JUDGE: So you count from May?

22 MR. TIEGER: The May document does give him a weapon and ammunition,

23 in fact, 300 rounds of ammunition, as a soldier. I find that an

24 extremely interesting comment by the accused in his work report

25 which certainly tends to confirm the significance of that

26 certificate.

27 THE PRESIDING JUDGE: I guess I do not want to prolong it, but what

28 was the date of the work report?

Page 8855

1 MR. TIEGER: He wrote the work report in August 1993.

2 THE PRESIDING JUDGE: So if you count from when to when you get more

3 than seven months?

4 MR. TIEGER: The end of his service, as reflected in his military

5 book, was December 25th. So there appears to be a discrepancy

6 which might not seem that significant otherwise between June

7 16th and December 26th which is just a little over six months.

8 However, and it might not be that noteworthy if you did not have

9 the document showing that he was issued a rifle and ammunition

10 as a soldier on May 4th, and, what, coincidentally, that is in

11 fact more than seven months as he asserts he served in the work

12 report.

13 THE PRESIDING JUDGE: Does Mr. Tadic deny being mobilized on

14 May 4th?

15 MR. TIEGER: Yes.

16 THE PRESIDING JUDGE: I suppose I have missed that. There is in

17 evidence a military book?

18 MR. TIEGER: There is a military book in evidence.

19 THE PRESIDING JUDGE: Do you know the Exhibit number?

20 MR. TIEGER: D8, your Honour. I might also remind the Court, you may

21 wish to take a look at Exhibit 150 which are the minutes of a

22 meeting of the Kozarac local committee in which Dusko Tadic and

23 Milenko Zigic are appointed to be in charge of issues pertaining

24 to military records. Your Honour, unless the Court has some

25 questions, I thank the Court.

26 THE PRESIDING JUDGE: Thank you, Mr. Tieger. Miss Hollis?

27 MISS HOLLIS: Thank you, your Honour. I will try to make my points

28 very quickly and very directly. Mr. Tieger has touched on the

Page 8856

1 details of the photographic lineups for the four identification

2 witnesses and some of the Defence issues in those. The Defence,

3 of course, spent much discussion on identification witnesses.

4 It is, perhaps, helpful to make some general points that

5 Mr. Wagenaar made for you concerning recognition or

6 identification issues, if you will.

7 Judge Stephen, I believe you were the one who asked

8 Dr. Wagenaar, "What if a person comes in much after the fact and

9 says, 'I saw a person with a moustache or a beard or without a

10 moustache or beard' or 'I saw them in a uniform of a certain

11 kind'? Is that certain a person would remember?" I think it is

12 helpful here when we look at this in the context of the Defence

13 argument to take a look at what Dr. Wagenaar told you.

14 Basically, he told you that if a person, as to

15 moustache or beard, if you know a person and you are accustomed

16 to seeing them either with or without, then your memory maybe

17 with or without and that may be incorrect, as far as facial hair

18 is concerned, but that is of no significance to the fact that

19 you saw them when you say you saw them. He indicated something

20 very interesting as to identification witnesses, that if they

21 say, "At the time I saw this individual he had facial hair", and

22 then they are shown a photographic lineup where he does not have

23 facial hair, then, in fact, you have built in an additional test

24 into that book. Because if they can recognise him without

25 facial hair when before they saw him with facial hair, that is

26 another indicia of the reliability of the identification and

27 makes it even less likely that it would be chance.

28 As far as the uniforms are concerned, the doctor said,

Page 8857

1 "If you are in an area where everyone wears uniforms and then

2 several years later you are asked to describe someone, you may

3 put them in a uniform you saw, even though perhaps they were

4 wearing something different". I am sure that once the Court

5 heard that, they wished that perhaps we had put Dr. Wagenaar on

6 at the beginning of our case and it would have, perhaps, cut

7 down on some of the questions we had asked our witness, because

8 indeed you have heard a great deal about uniforms in this case.

9 But we would also point out to you that when you look at the

10 Defence evidence the accused had many types of uniforms,

11 including a multi-coloured greenish brown shirt or jacket that

12 he wore including this yellow, brown, light jacket. You recall

13 the witness from Omarska who said he had a giraffe skin colour

14 uniform on, and perhaps there is a linkage there.

15 There have been discussions about black uniforms in

16 Sivci. If you recall, Subha Mujic, she said it was black,

17 camouflage black, camouflage blue. You will recall that you had

18 evidence before you that, in fact, police wore this blue, dark

19 blue camouflage uniform. So a great deal of attention has been

20 spent to uniform. Dr. Wagenaar tells you a person could see

21 someone they knew, recognise them accurately and later transpose

22 an image of a uniform on to them when, in fact, the person did

23 not have.

24 THE PRESIDING JUDGE: Miss Hollis, also if you are making reference

25 to the testimony, would you please when you receive the

26 transcript provide us with the transcript cites?

27 MISS HOLLIS: Yes, your Honour, we certainly will. As for the

28 significance of facial hair, your Honour, that would be 5767 and

Page 8858

1 68 and 5857 and 58.

2 There is another area concerning recognition that we

3 need to look at that Dr. Wagenaar talked to you about, and that

4 was the issue, if you know a person and you recognise them, what

5 would you remember about it? You recall that in regard to

6 recognition Dr. Wagenaar told you that human beings are somewhat

7 unique in that they seem to have hard wired into their brains

8 the ability to recognise and remember faces. This is something

9 they will recognise and remember even when other details may

10 become blurred or forgotten. "I will never forget that face" is

11 a term people use and perhaps it has a great deal more

12 significance than we think it does.

13 In any event, he also indicated that when a person is

14 looking at a face that it is a global picture that they have.

15 They do not remember minor details. He told you that you can

16 know someone very well and not be able to describe minor

17 details. He said you would have some sort of broad description,

18 and that would include something about height and size, but he

19 said you have to give great parameters there because humans

20 differ greatly in their ability to judge that, and hair colour.

21 Samir Hodzic testified in this case and there was an

22 issue about a prior statement where he described the accused's

23 hair colour. You will recall there that he indicated in the

24 prior statement that "it was light" was the translation. You

25 will recall in this courtroom he described that it was "light

26 going to dark" and described that he what he meant was perhaps

27 "sunlightened hair, light coming off the sun".

28 There, I believe, we have an indication this is a

Page 8859

1 person who could remember the general details of a person he

2 said he knew. The fact that he could remember the general

3 details only is not inconsistent with his knowing this person.

4 When you look at the potential inconsistency between his prior

5 statement and the statement that he gave you in this courtroom

6 under oath, you should keep in mind the problems that we have

7 with translation and interpretation.

8 You recall throughout this trial, where we have highly

9 qualified people working as interpreters, we have had

10 difficulties with interpretation. The Defence yesterday chose

11 to mention that Zemka Sahbaz perhaps should not be believed

12 because she at one point said that the accused was in a blue

13 camouflage uniform. You will recall on the record that that was

14 corrected. That was a translation error. In fact, she had said

15 "green" but it was translated as "blue". That was corrected on

16 the record for you. I will provide you with the page cite.

17 These things have happened. You will recall in a

18 perhaps more sombre note an occasion where someone was talking

19 about a child that had been pierced with a pitchfork and

20 initially came out as "pierced with rags", again because of

21 unfamiliarity with a term and because of translation concerns.

22 In regard to prior statements, when you are assessing

23 these potential inconsistencies, we ask you to keep in mind that

24 the interpreters used in other circumstances may not be as

25 highly skilled as the interpreters we have here, and that could

26 cause more problems.

27 In addition to that, you will remember that when Elvir

28 Grozdanic testified, he was also questioned about his prior

Page 8860

1 statement. He was questioned about a section of it where he had

2 talked about seeing these men as he came out of a restaurant,

3 and seeing people in the statement he had opined to be Fikret

4 Harambasic and Emir Karabasic. When he came into this

5 courtroom, because he was here before you in a judicial setting,

6 he chose not to opine about who those men were.

7 Somehow, this was attacked to make it appear as though

8 he were being less truthful with you or trying to change his

9 story. I suggest to you what he was trying to do was to be more

10 accurate in the detail he was giving you because of the

11 seriousness of these proceedings.

12 At any rate, he indicated that in the statement he had

13 given before, when he was telling about this injured person

14 being taken off in a wheelbarrow, the interpreter did not,

15 apparently, know the word for "wheelbarrow" so in the statement

16 it had the person being take off in a "wheelchair" when, in

17 fact, it was a wheelbarrow. Again these are not made to cast

18 any apersions on interpretation, simply to indicate that this is

19 a fact that this Tribunal has had to deal with.

20 You certainly will have inconsistencies or potential

21 inconsistencies to deal with, and you will have to resolve

22 them. We ask that you look very carefully at what was said,

23 though, in resolving them and that you check very carefully what

24 both the Prosecution and the Defence tell you are

25 inconsistencies. I would like to speak for a moment about some

26 of the inconsistencies that were pointed out to you yesterday by

27 the Defence.

28 In the initial opening remarks, Mr. Jos Paepen was

Page 8861

1 mentioned again in a very unfavourable light. It was indicated

2 that in regard to Draguna Jaskic's statement about her reaction,

3 why she had reacted, that the Defence said it was her alleged

4 reactions because the only information they had about that was

5 her own statement, and the additional information from a witness

6 who was an inexperienced law enforcement officer. They went on

7 to say, "I say inexperienced because he had never performed a

8 photo test before."

9 If we go to Mr. Paepen's testimony at page 2980, what

10 do we find out about what he said about his experience in

11 showing photo lineups? The question put to him was, "Is this

12 the first time you have been involved in a photo identification

13 through the book?" referring to the one shown to Draguna

14 Jaskic. "With this book, yes, sir, but in this case it was the

15 first time I did". "Is that the only occasion you have been

16 involved with a photo identification in this case?" "Yes, sir,

17 it is". Somehow that got transformed into this was the first

18 time he ever showed a photo lineup. It is important to look

19 very carefully at what the witness has said and what the

20 evidence says to ensure that, given the volume of this

21 information, something has not been unknowingly, unintentionally

22 misstated.

23 If we turn to Witness Q (and you are certainly going

24 to have to deal with Witness Q), there were several allegations

25 made about Witness Q and his believability. In making these

26 allegations and discussing the credibility of this witness, the

27 Defence counsel asked some questions. He asked such things as,

28 well, between 24th May when Q says he saw the accused in Kozarac

Page 8862

1 and 26th May which was the next sighting, where was he, what was

2 he doing? I suggest to you that the Serb church and the

3 priest's house were not hit at all by shells, and that would

4 have been terrific place for this accused to remain while he was

5 waiting to take on his next duties.

6 I also suggest that this accused at this time was not

7 acting as a civilian interloper in Kozarac. He had been

8 mobilized. He was in the military. He was a person familiar

9 with the town. The people in the town, if they saw him, would

10 not be unduly alarmed to see him there even during the shelling

11 because, you remember, they continued to frequent his cafe even

12 when the situation was very tense. He was brought there by the

13 military. He was inserted there by the military. It was the

14 Serb forces who were controlling the shelling. There were lulls

15 in the shelling. That is when he was put in.

16 Why would you be sending people in this way and

17 putting them at risk of being hit by shells, and why on earth

18 would the artillery not have had the correct sightings? People

19 that are familiar with the military know that artillery officers

20 are not as good as they say they are; and why would you put

21 someone in to fire flares? You might put this accused in to

22 fire flares? For one thing, because he wants to assist in the

23 takeover; for another thing, because the flare is going to help

24 ensure that his home and cafe are not damaged.

25 You recall from Azra Blazevic that, in fact, when she

26 went down the road on 26th May there was damage in Kozarac, but

27 the accused's home and cafe had incidental damage you would

28 expect from shelling close to it, windows knocked out and things

Page 8863

1 like that. No indication from her that his home was ever hit by

2 a shell. So perhaps that is why he was there; that is what he

3 was doing there.

4 The church incident that the Defence talks about in

5 regard to Witness Q, and they indicate to you that the church

6 incident derives from his testimony and that young children who

7 had been standing guard duty near the Serb orthodox church came

8 to complain to Witness Q. Then later he indicates that there

9 was a man called Besic on duty, but Q confirmed to me he did not

10 actually speak to Besic. He spoke to another adult and again

11 says this sighting is by children.

12 You recall it was Q who used the word "children". At

13 page 1546 he was asked about the age group. He is talking about

14 youngest and oldest at the hospital, and he says approximately

15 17 years of age up to about 45.

16 He talks about people who came to him to tell him

17 about the incident at the church. Then on page 1548 he says

18 that one chap came and that immediately then they went to the

19 church area to find out what had happened, and that at the

20 church there was this older man, Besic, and the rest of the

21 children who were guarding the church. He says, yes. Then the

22 question is: "This Besic did not come to speak to you?" He

23 said, "No, that is correct". Then Q tells us, "The first story

24 that something had happened down there was told by a child and

25 only a very small part. The rest of the story was told by the

26 rest of those people who remained there, and those were those

27 children and this elderly man, Besic, that I mentioned". So, in

28 fact, he spoke to this adult, this elderly man Besic -- although

Page 8864

1 I believe he said elderly was 45 -- and, in fact, he was the one

2 who confirmed that story for him.

3 The Defence also attacked Witness Q saying that he

4 used the hospital because there was such emotive connotations to

5 use the hospital as an example. Azra Blazevic told you there

6 was very heavy shelling on the night of 24th and morning of

7 25th, and that, in fact, the hospital was hit that night and

8 there were wounded people there. So this is not a fabrication

9 to appeal to your emotion.

10 The Defence also indicates, well, these extreme

11 allegations that he talked about, this child killed by a

12 pitchfork, a man stuck against the door, these are extreme

13 allegations trying to prejudice the Court. We ask you to

14 consider the other evidence in this case, the castration of

15 Fikret Harambasic was truly an extreme measure, but it

16 happened.

17 Mustafa Mujkanovic told you of having to bury dead

18 people while he was in Trnopolje, including his brother. He

19 told you about that, that he found his brother, his eldest

20 brother, stabbed five times in the chest, one of his breasts, he

21 called it, cut off and he said, "I apologise, but I have to say

22 his genitals were cut off and he was also slashed over his

23 throat". Perhaps people might say that Mr. Mujkanovic made that

24 up also trying to appeal to your prejudices. I suggest you

25 would not make up that sort of destruction invited upon a member

26 of your family. Extreme measures happened, extreme crimes were

27 committed.

28 Again in regard to Witness Q, the Defence indicated

Page 8865

1 that at Keraterm he claimed to have been able to see Dusko Tadic

2 at some considerable distance away. If we look at the testimony

3 of Witness Q at page 1573, he says that he was in cell No. 2.

4 He said that what would happen is that information would be

5 passed from one person to another. He told you that his normal

6 place was in the back of the room. He said that what happened

7 was people that he believed would know the accused, people from

8 Kozarac, said, "Here comes Tadic".

9 What did he tell you then happened? He told at 1581,

10 "I was still in my corner. The news that I heard was that

11 Dusko arrived. I simply moved from my position to the large

12 wall and I glanced towards the exit doors and this is where

13 I saw him. After that I immediately went back to my place."

14 Then he tells you that he heard again when the accused was

15 leaving, and so he again came forward to look; again the point

16 being it is very important to look at what the witnesses have

17 said.

18 Turning to Azra Blazevic, the Defence speaks of her in

19 terms of a brief fleeting glance of a lady convinced it was the

20 accused because of a remark made at the time, someone saying it

21 was Dusko Tadic. Let us look, first of all, at what she had to

22 say about what convinced her. At page 1626 she said that she

23 heard someone say, "There is Dule", and that she looked up

24 because it meant that somebody they knew was there. She looked

25 around and she noticed Dusko Tadic crossing the street not far

26 away.

27 She was asked if there was anything about the incident

28 that made her sightings stick out in her mind. She said that it

Page 8866

1 remained in her mind "because Nihad Bahonjic was not taken from

2 the intersection with us to Trnopolje, and all the time after

3 that we were wondering why he was taken and who took him,

4 because the soldier that came and called out Nihad Bahonjic

5 called him out by his name and last name. None of us knew the

6 soldier and I remember the only known face, the only person that

7 we knew and who was there and that was Dusko Tadic."

8 She says, "I do not believe I was mistaken because at

9 that moment when I looked around me, looking for a familiar

10 place, I was not looking to see the accused but simply the

11 person that was crossing the street."

12 Dr. Wagenaar tells you something about these fleeting

13 glances. He tells you about them in the context of a person who

14 does not know the individual they are looking at and in the

15 context of a recognition witness, such as Mrs. Blazevic was. He

16 said the second situation where you have a recognition witness

17 recognising a person that you know is done much more quickly.

18 It can be done within a second that you say, "Ah, he, that is

19 him." It can take from zero to any time after that. In fact, a

20 quick recognition is what you would expect from someone who

21 knows the person. That is found at pages 5846, and 5847. If a

22 witness after two seconds says, "That's him" I would say that is

23 totally acceptable."

24 The Defence also talked about Nihad Seferovic who told

25 you that he saw the accused commit crimes against two men in

26 Kozarac on, he did not know. It was the day Kozarac

27 surrendered. He thought it was a Tuesday. He did not know the

28 date. Defence counsel said Seferovic who gave evidence about

Page 8867

1 the church killings on the morning of 26th May, and went on to

2 discuss that this was a problem for the Prosecution case because

3 now we had the accused being here killing someone in the

4 morning, being seen at the triangle by Q in the morning, being

5 seen at Keraterm in the morning.

6 Let us turn to Nihad Seferovic's testimony at 1770.

7 "Can you remember what time of the day it was you went to go to

8 your brother's house? It was in the early afternoon." Then if

9 we go to 1773 the question is, "When you were going through the

10 backyards and gardens, down to the orchard, after you had been

11 to your brother's house, you said that you could see the church

12 clearly? Yes, yes. It was not in the morning. It was in the

13 afternoon.

14 THE PRESIDING JUDGE: But did not S testify, was it S, that he saw

15 the accused at Keraterm on that same day in the afternoon?

16 MISS HOLLIS: No, ma'am, he testified that on 26th he saw the accused

17 there after 10 o'clock in the morning. On 27th he said he saw

18 the accused there in the afternoon.

19 THE PRESIDING JUDGE: Well, you will provide the transcript cite once

20 again.

21 MISS HOLLIS: I believe you have that in the materials already, your

22 Honour.

23 THE PRESIDING JUDGE: In the large volume?

24 MISS HOLLIS: Yes, your Honour. In regard to Nasiha Klipic the

25 Defence, my goodness, she saw the accused coming from the

26 direction of Prijedor, and by the way, this would have been on

27 the day that Witness S said he saw him in Keraterm in the

28 afternoon, and then she sees the accused coming from the

Page 8868

1 direction of Prijedor passing her toward Kozarac, but then she

2 is in this long column. She gets to the separation point and

3 there he is. How did that happen? Judge Stephen indicated,

4 well, perhaps there were cross-over points from the old road but

5 I do not see on any map, I believe, sir, is what you indicated. We

6 looked at Prosecution Exhibit 280. We have blown up that

7 portion and, indeed, there are cross-over points and we do have

8 the blown-up portions of that map available for you, if you

9 wish, as well as for the Defence.

10 So we suggest that is exactly what he did. He went

11 that way. He came back along the old road. You will remember

12 Witness V said that when they were moving into Kozarac at a

13 junction around Kozarusa/Sujica somewhere they branched off,

14 half his unit branched off, and went down the old road through

15 Kozarusa, so that old road was controlled by the Serbs. He went

16 in along the main highway, came back by the old road. He was in

17 a car. No one was blocking him. That is how he was able to be

18 there at the separation point for her to see him. Indeed, your

19 Honour, Witness S with the two sightings is with the material you

20 have under the Keraterm persecution count.

21 The Defence also went back to clothing and made some

22 comments about Sulejman Besic and Salko Karabasic saying that is

23 it not peculiar that these two men said they saw the accused in

24 a civilian suit. If we go to Mira Tadic's testimony at 4844 she

25 talks about this summer camouflage uniform and says: "Can you

26 describe it? What were the colours? It is a uniform that looks

27 like a sports outfit, like a jump suit. You put it on top of

28 your civilian clothes. It was beige, yellow, brown with

Page 8869

1 spots." So a jump suit, casual clothes, it is not inconsistent

2 with what these witnesses talked about, but they did believe it

3 was camouflage. Indeed he was wearing this suit, it was

4 camouflage, but it was of the yellow, brown, white colour

5 camouflage.

6 THE PRESIDING JUDGE: When the witness placed Mr. Tadic in civilian

7 clothes, did he testify that it was multi-coloured?

8 MISS HOLLIS: Your Honour, that was a prior statement about civilian

9 clothes and in the courtroom they testified about camouflage type

10 clothes.

11 THE PRESIDING JUDGE: In the prior statement did he describe the

12 civilian clothes?

13 MISS HOLLIS: That I am not sure.

14 THE PRESIDING JUDGE: If the statement was not introduced the

15 question becomes whether it was elicited. So we will check the

16 transcript. Did you give us the transcript cite for that?

17 MISS HOLLIS: The page for Mira Tadic was 4844.


19 MISS HOLLIS: For the prior statement?

20 THE PRESIDING JUDGE: When that is discussed, yes.

21 MISS HOLLIS: That is in ----

22 THE PRESIDING JUDGE: You can do it later.

23 MISS HOLLIS: I will submit that to you later. In regard to these

24 two witnesses and the event that they testified concerning,

25 I would express again that the Prosecution theory of that event

26 was that the men that Ferid Mujcic saw being taken across the

27 road were brought back. We know there was a lot of movement

28 back and forth that day. We believe the explanation is the men

Page 8870

1 were brought back.

2 In regard to Judge Stephen's question about is it not

3 true that the man behind, the man in the rear, was the one who

4 said he also saw them brought out while the man who must have

5 been in the middle said he did not, I would suggest you look

6 very carefully at those portions of the testimony of Sulejman

7 Besic. I believe there is some ambiguity there as to exactly

8 where those men were at the point he saw him.

9 I would also suggest that as this column went down

10 that road, this huge column in this very traumatic and chaotic

11 environment, that people were looking up and looking about at

12 different times, and he behind Ferid Mujcic could very well have

13 been looking forward and to the side and seen this occurring,

14 while Ferid Mujcic did not see that as it happened, saw it when

15 he looked just a bit later and saw them against the kiosk.

16 I would suggest there is a reasonable explanation for what they

17 saw of this event that occurred there.

18 THE PRESIDING JUDGE: Miss Hollis, in Counts 24 through 28 the

19 Prosecutor charges that "Serb forces, including Dusan Tadic and

20 Goran Borovnica, ordered", and then you name the people, "from

21 the column and shot and killed them." If the Trial Chamber were

22 to find that the evidence supported a finding that these people

23 were called from the column but that the evidence did not

24 support a finding that they were shot and killed, would that be

25 a crime under any of the counts?

26 MISS HOLLIS: I think under Count 1, your Honour, because again it is

27 assisting in the roundup of these people and their forced

28 expulsion from Kozarac. In addition to that, your Honour, if

Page 8871

1 you were to find that Ferid Mujcic's version was correct and

2 Goran Borovnica had indeed struck one of them, I would suggest

3 that the accused's presence there was not innocent presence, and

4 he would be culpable in the striking of that civilian who had

5 been called out as well.

6 THE PRESIDING JUDGE: As to coverage in Count 1, the Defence says

7 that Counts 24 to 28 -- well, no, I guess not. That is May 27th

8 and 11 and 12.

9 MISS HOLLIS: I believe they mention 29 to 34, your Honour, as not

10 being included, is that correct?

11 THE PRESIDING JUDGE: Yes, 29 to 34 being June 14, therefore, after

12 May 27th but this count is May 27th.

13 MISS HOLLIS: In regard to 29 to 34, your Honour, I believe paragraph

14 4 would include it because the time period there I believe is

15 about 23 May until 31 December 1992. So I believe that is the

16 general prefatory paragraph for the persecution count.

17 THE PRESIDING JUDGE: Let me ask you about that then.


19 THE PRESIDING JUDGE: Paragraph 4 says between 23rd May 1992 and 31st

20 December 1992, and then you specify acts. Then 4.1 says between

21 the dates of 24th, 27th May -- from the dates 24th to 27th May

22 1992.

23 MISS HOLLIS: Yes, your Honour.

24 THE PRESIDING JUDGE: Then in the last sentence you refer to

25 paragraphs 11 and 12. The acts charged in 12 of course occurred

26 on June 14th, that is what you charge, and then 11 that occurred

27 on 27th. So you may not have a problem with paragraph 11, but

28 what about 12? That goes beyond May 24th to May 27th. You are

Page 8872

1 saying that paragraph 4 is the prefatory one?

2 MISS HOLLIS: That is correct, your Honour. I believe when we set

3 out the additional paragraphs there we were incorporating some

4 other offences that may not have been specifically alleged, set

5 out separately further on in the indictment, but I believe we

6 did incorporate the offences we set out separately in the

7 indictment. I believe they would be incorporated under that

8 prefatory paragraph.

9 THE PRESIDING JUDGE: Would that also apply to the beatings that were

10 charged at the Prijedor barracks?

11 MISS HOLLIS: I believe we have a prefatory paragraph that addresses

12 that. I believe there the issue is not so much if the --

13 I think you raised it yesterday perhaps in another context, and

14 that would be in terms of if we had charged beatings at Prijedor

15 barracks during a certain time period and the evidence proves

16 that it was beatings at Prijedor barracks but perhaps a short

17 time after the alleged time period, would that be a fatal

18 variance in pleading such as to render it a more serious crime

19 as to deprive the accused's notice so that he would not have

20 been prepared to meet the charge. I would suggest that would be

21 the issue there and that in these instances neither would be

22 true. That, in fact, if we are talking about a time period that

23 is toward the end of May and we have early June to 8th June,

24 that that is close enough in time that it would be included.

25 Secondly, I do not believe it would be fatal, because it is

26 specific enough in what it alleges and the facts were specific

27 enough so as to preclude a second trial for the same offence.

28 It does not by the time difference make it a more serious

Page 8873

1 offence, and the accused had sufficient information ahead of

2 time through disclosure that he was able to defend against it.

3 So I believe it would be included under the prefatory

4 paragraph, and I do not believe there would be a fatal variance

5 in the pleadings.

6 THE PRESIDING JUDGE: That was Judge Stephen's question I think, or

7 at least one that related to timing. My question in terms of a

8 fatal variance dealt with Counts 18 through 20 which I am sure

9 you will address.

10 MISS HOLLIS: That is correct. I believe it is the same principle you

11 are talking about. In regard, your Honour, in regard 18 to 20,

12 I think you are talking about the substance of acts, whereas

13 here we are talking about the dates. I would suggest again

14 there that using the same logic that is not a fatal variance,

15 because what we are looking at, I believe, when we talk about a

16 fatal variance is, is it such a difference that it would do one

17 of three things: Number one, it would change the crime and make

18 it more serious; number two, it would be so deficient that the

19 accused would not be on notice of it so would not be able to

20 prepare a defence against it, or, number three, that by changing

21 it this way it would open up the possibility of a second trial

22 for the same offence. Again, I believe because of the detail

23 provided that that would not occur, even though what we had

24 charged was the discharge of the nozzle of the contents of the

25 fire extinguishers, and what the proves is shoving the hose into

26 the person's mouth. Our position would be that is not a fatal

27 variance for the reasons I stated.

28 Your Honour, if we could move on now to some of the

Page 8874

1 areas they talked about with Counts 5 to 11. They talked about

2 Husein Hodzic and a prior statement of his. Again, I would ask

3 that you look at the explanation and the circumstances of that

4 prior Swedish statement they referred to in determining if, in

5 fact, there is a significant inconsistency. The Defence talks

6 about that prior statement in their cross-examination.

7 I would suggest to you that if Husein Hodzic wanted to

8 come in here and pin something on this accused there would have

9 been a much more direct way to do that. That way would have

10 been to come in here and say: "I was in that room that day.

11 I heard Emir Karabasic called out. I heard what he said about

12 Dule Tadic. I too went to that window and looked down into the

13 hangar and I too saw Dule Tadic." But the witness did not

14 testify to that. So either he is very subtle in his ways of

15 pinning it on the accused, he is not bright enough to think of

16 it or, in fact, he came in here and he testified to you about

17 what he recalled of that date. We suggest that it is the latter

18 explanation.

19 As far as Emir Karabasic is concerned, the Defence

20 said: Why did he say, "There he is"? Why did he not say, "There

21 they are"? Why did he say those things? The evidence tells you

22 why. He was afraid of this man. He had confirmed to Nihad

23 Seferovic that he was among the group Nihad saw on the Tuesday,

24 he thinks, when the surrender happened. He had not wanted to

25 talk about details, but he had confirmed to Husein Hodzic that

26 he his greatest fear was that the accused would come to that

27 camp and would get him.

28 There was discussion about how long he had been in the

Page 8875

1 camp. We do not how long, but there is no indication in the

2 record up until about five to seven days before this that the

3 accused committed any of these crimes at Omarska inside the

4 hangar. You recall Mr. Muslimovic testified that he first was

5 beaten by the accused five to seven days before the 18th June

6 incident, and that at that time the accused and the group

7 followed him into the hangar, but only to that stairwell that

8 went up to room 15. So had Emir Karabasic seen him in camp up

9 until that time? Very likely not. Emir Karabasic had been

10 beaten very badly. Was Emir walking around very much? Not

11 likely. He looked down there and he saw the man he feared and

12 that is why he said, "Dule is here, I am finished". That is

13 why.

14 THE PRESIDING JUDGE: I think that the Defence's position was that

15 Mr. Tadic had an opportunity to see him earlier at the camp.

16 This is June 18.

17 MISS HOLLIS: I do not know that anything says that a person is not

18 guilty of a crime if they hold off until a later date. There is

19 no indication as to why he waited until then. Many men were

20 brought out that day, including Emir Karabasic. I do not

21 believe the suggestion that he could have done it earlier

22 overcomes the evidence that indeed he was there and did it on

23 that day on 18th June. For the reasons I mentioned earlier, I

24 do not believe that a reasonable conclusion is that Mr. Hodzic

25 lied about what he heard on that date.

26 They talked about Witness H who among the living,

27 perhaps next to Meho Alic, is the one who was perhaps the most

28 affected for the rest of his life by this incident. They talked

Page 8876

1 about Witness H being there. They seem to indicate that the

2 incident was the castration of Fikret Harambasic. That was

3 certainly the most sensational part of that incident, but that

4 was by no means the incident, because when Fikret Harambasic was

5 emasculated by G five other men had already been severely,

6 savagely victimized that day. When H went out there those acts

7 had already been done.

8 When we look at H's testimony what does he say about

9 where he was looking and how he was looking when he went out?

10 When H went out and when G went out do you think they were

11 afraid of what was happening? I would suggest, yes, the

12 reasonable inferences are that they were. He said on page 2649

13 that when he came out of the room he was looking down. He said

14 when he saw Emir's body somebody asked: "Whom are we going to

15 take?" He was looking down. He did not tell you who said

16 that. He was asked: "Were you looking around in the garage and

17 looking these soldiers?" He told you: "Only in so far as

18 I could while we went up and down trying to pick up and drag

19 Jasmin's body just for a moment." This is a witness that the

20 Defence agrees is being truthful with you and is telling you how

21 limited his ability to see everyone in that area was while he

22 was out there. He also tells you after being pulled out of that

23 canal he was put on his stomach with a knife at his eye and told

24 to keep Fikret Harambasic's mouth closed or the knife would be

25 used, and that while he was on his stomach someone put a foot

26 on his neck and trampled him so that his chin and face were

27 pushed into the floor of that hanger. He was not looking around

28 at who was there when this was happening. If you look at his

Page 8877

1 testimony we suggest that indeed his testimony does not preclude

2 the presence of this accused at this time. He told you he did

3 not see him and we believe that is 100 per cent accurate. That

4 does not mean that the accused was not there.

5 Senad Muslimovic supposedly lied about his testimony

6 because there was this fellow Bakar or Bakan of some sort that

7 had beaten Senad Muslimovic, and he should have known about it.

8 I am sorry, your Honour, I am mixing up my people here. The

9 issue about Senad Muslimovic was that he claimed that at the

10 time he was being beaten by the accused Jasko Hrnic was also

11 being beaten by the accused, and it therefore entered his mind.

12 He links the two. Now at page 2536 he tells you how that

13 scenario played out. He said he had been unconscious, he came

14 too and he was not being beaten when he came too. At that time

15 he saw Jasko Hrnic dragged over there and he saw the accused

16 cutting him. He was not being beaten by the accused at that

17 time. He saw the accused cutting this other man. Then he said a

18 short time later he heard someone behind Muslimovic saying ----

19 THE PRESIDING JUDGE: We are having a problem with the transcript.

20 MISS HOLLIS: Did I blow the transcript right off the screen! The

21 interpreters want you to slow down, but we still have a problem

22 with the transcript, it is not operative. Let me ask you this

23 while the transcript is being repaired. How much longer do you

24 have, Miss Hollis?

25 MISS HOLLIS: Your Honour, I will conclude at 1 o'clock.

26 THE PRESIDING JUDGE: Does the Defence -- you had indicated you did

27 not have any rejoinder -- do you have any rejoinder and, if so,

28 how long?

Page 8878

1 MR. WLADIMIROFF: We may have altogether about a quarter of an hour.

2 THE PRESIDING JUDGE: Fifteen minutes?


4 THE PRESIDING JUDGE: We will continue until both sides have finished

5 then, expecting we will finish at 1.15, I hope.

6 MISS HOLLIS: Your Honour, to the extent my speaking too quickly

7 causes I do apologise.

8 THE PRESIDING JUDGE: You may continue.

9 MISS HOLLIS: Thank you, your Honour. Your Honour, I have gone

10 through the Defence argument and taken out many instances where

11 I believe you need to look very carefully at the transcript and

12 if you have no objection I would like to submit that to you as

13 an aid, as a package, if you have no objection to that, and I

14 will move on to other things.

15 THE PRESIDING JUDGE: Is there any objection? There will be a list

16 of transcript cites I gather.

17 MR. KAY: No, and it is what your Honour required of us in relation

18 to our argument and we are in the process of doing anyway.

19 THE PRESIDING JUDGE: Very good, thank you. That may be submitted.

20 MISS HOLLIS: Your Honour, there is only one other person I want to

21 speak of in relation to this incident, because I think it is

22 particularly significant to this entire issue of whether all of

23 these Prosecution witnesses have come in here out of revenge and

24 have lied about what they saw. That is, when the Defence spoke

25 of Meho Alic and they told you that: It is clear that he held

26 back from saying he saw Dusko Tadic, he could not go further

27 than saying, "I know he was there." They say that in terms of

28 description he said: "I could not see them, who they were, what

Page 8879

1 they were", and so he has held back from identifying Dusko Tadic

2 at the scene, but he has gone into some other much more subtle

3 way of trying to connect him with the crime.

4 What we suggest to you is this, that if Maho Alic

5 wanted to put the accused at the scene when his son was killed,

6 he would have told you, "I saw him there." There was nothing to

7 hold him back from that, nothing at all, except his own personal

8 integrity. He did not see him there. So he came in here and he

9 told you what happened as he knew it. He did not lie to you.

10 Because he is an honest man who came here in the light of his

11 tragedy he is an honest man. He told you no more and no less

12 than what he saw and heard that day. We suggest that is true

13 for the witnesses you have seen before you here, and that they

14 did not come here as part of some bloodthirsty revenge to exact

15 retribution against this accused for wrongs done to them.

16 In regard to the Defence witnesses I would like to

17 touch on a couple of those witnesses, and that is Mr. Brdar and

18 Mr. Prpos. The Defence would you have you believe that these

19 people are very important, and they are also very reliable. I

20 would ask that you look very carefully at their testimony as

21 well. If you look at Mr. Brdar what you will find, I suggest,

22 is a man who came in here to give the image that everything

23 worked perfectly at the checkpoint, that they were always on

24 time, that they were always there, that they never slept. They

25 had no trailer there in which to sleep, although other evidence

26 says that is not true. He tells you that every day when they

27 went to their shift, first they went to the police station, they

28 reported in, they got the keys to the car, he drove them out to

Page 8880

1 the shift and then they drove the car back in at the end of it.

2 Now the man who ran the traffic section told you that,

3 in fact, if there was a car they would come to the police

4 station, otherwise they went directly there, but Mr. Brdar was

5 very insistent that they always went to the police station to

6 check in. Again, he is trying to make this much more perfect

7 than it was, for what reasons, I do not know.

8 Another factor to consider. Mr. Brdar, if the accused

9 left there while he was on duty, do you think that Mr. Brdar

10 would report him if it had no significant adverse impact on the

11 functioning there? Judge Stephen asked: Why do we have three

12 grown men at this checkpoint when, apparently, there are not

13 that many civilian cars? I believe the evidence was that the

14 military side which was very busy only had two people.

15 I suggest Mr. Brdar would not have reported the accused's

16 absence, number one, because it would not have affected what

17 they were doing there, number two, because he would not want to

18 be informing on someone he was working with and, number three,

19 perhaps because he had no objections to what Mr. Tadic may have

20 been doing when he was not there.

21 Mr. Prpos also testified before you, and he testified

22 about the accuracy of these records. He talked primarily about

23 D66 and that was this log book, if you recall. Mr. Brdar

24 I believe had indicated that really it was Mr. Prpos who filled

25 that out and signed it and did all of this, but Mr. Prpos made

26 it clear that his administrative clerk actually filled out many

27 of those pages and signed Mr. Prpos's name to it. In fact, he

28 tells you that at page 5215, at page 5218. At page 5217 when he

Page 8881

1 was talking about this book and making up this book, on that

2 page he said: "Yes, one can see from here", and he is talking

3 about D66, "there is a certain equal rhythm if you look at the

4 actual distribution. If a person works one day, then he does

5 not work the next two days, for example." I suggest that is

6 not a hypothetical. He is looking at this book, he is telling

7 you very often what schedule may have been.

8 THE PRESIDING JUDGE: Slow down, Miss Hollis.

9 MISS HOLLIS: I am sorry, your Honour. It is interesting to note

10 that at page 5228 when he is talking about the accuracy of the

11 book, he is asked at one point: "Is there any reason why we do

12 not have a linking number here" and he is being shown a

13 particular entry "which would correspond to the numbers within

14 the official duty plan, the first book we look the at?" He

15 says: "That is an error, an omission on the part of Cvijic who

16 filled in this document." The next question is,

17 interestingly: "Again, could you comment upon the accuracy of

18 this document relating to the records of hours of duty for Dusko

19 Tadic," and after telling you this is an error he said: "These

20 records are accurate." Human beings made those records. There

21 were inaccuracies in those records. That is proven when we look

22 at the cross-examination of Mr. Vujanovic. During that

23 cross-examination he was asked about these patrol warrants for

24 Kozarac. These are Prosecution Exhibit 357. These are patrol

25 warrants for September in Kozarac.

26 Yesterday the Defence tried to say, well, there may

27 have been some minor inconsistency there. Look carefully at

28 those. There is not a minor inconsistency; there is a major

Page 8882

1 overlap on one of them. Then they want to say, but, you know,

2 Mr. Vujanovic he could not tell you anything about those patrol

3 receipts, they were not his. Well, look at those patrol

4 receipts and you are going to see a signature there, Dusko

5 Tadic. He could tell you about them, he signed them. He said

6 he was there when the record said he was somewhere else.

7 Inaccuracies, they do exist in these records.

8 The Defence in their argument has talked about Witness

9 L and has wanted you to use what happened with Witness L to say

10 that the entire Prosecution case is of absolutely no value

11 because of that. We suggest that, in many ways, what happened

12 with Witness L is certainly incredibly unfortunate and something

13 that should never have happened, but in many ways it shows that

14 the adversarial system works because the Defence had this man's

15 name, they had the ability to investigate, they came up with

16 information that was very relevant to this man, it was brought

17 to the Court's attention and appropriate action was taken.

18 I find it very interesting that the Defence says: This

19 man is a liar, that has been proven, he is liar, but you know

20 the one thing he is telling the truth about, the Muslims made

21 him do it. Our position is this. He certainly lied about his

22 family and we are not at all sure if he told the truth about

23 anything else, but we are not at all sure, that is the point,

24 because why would we automatically believe his last statement

25 when all of the rest of his statements are in such serious

26 doubt? Please recall the circumstances of that last statement.

27 That last statement came out only after he had been alone with

28 his father and brother who live in opstina Prijedor, and after

Page 8883

1 that he said: "The Muslims made me do it."

2 Also think about other information in this record,

3 such as when the Defence counsel first brought the information

4 about the family to this Court's attention, and you will recall

5 how that was brought to your attention. It was indicated that

6 during investigations in the area they happened almost by chance

7 upon this family. How were they led to that family? Someone

8 told them that a man by the name of Pero Opacic had been a guard

9 at Trnopolje. Then when they found Pero Opacic, well, Pero

10 Opacic is (redacted). knew things

11 about the camp. What did he tell that was the truth, if

12 anything, how much did he lie, we do not know.

13 We indicated that we would investigate the matter. We

14 began an investigation. We have initial results from that

15 investigation. It is not final results. The Defence's

16 contention that what we did was reluctantly, hesitatingly

17 beginning to investigate that is totally unwarranted. There

18 contention that we obstructed their ability to bring out the

19 truth is totally unwarranted. We acted appropriately in this

20 instance, but Witness L's situation, this one Serb witness we

21 had who said he saw crimes and then this issue arises, does not

22 mean that rest of the Prosecution's case should be dismissed out

23 of hand.

24 The Defence has raised also this idea of a fair trial

25 and have they been given a fair trial. They have not said it in

26 those words, but at the beginning of trial certainly

27 Mr. Wladimiroff raised the concern. He has raised it again

28 about their inability to get all of the witnesses they wanted,

Page 8884

1 the difficult conditions under which they worked. We suggest

2 to you that they have not been denied a fair trial under this

3 Statute. When it talks about the ability to obtain and present

4 evidence what we are talking about is equality of arms, and in

5 what way has the Prosecution or this Court acted to deprive them

6 of opportunities that the Prosecution had? The fact that

7 Prosecution witnesses many of them were not in Bosnian-Serb held

8 territories does not constitute a denial of equality of arms.

9 This Court went well beyond what many courts may have done to

10 provide them with the opportunity to get witnesses to testify.

11 So we suggest that there is no validity to this argument about a

12 potential denial of a fair trial.

13 They have also talked about the issue of

14 corroboration. We suggest to you that, in fact, it is not

15 uniform throughout civil law systems that corroboration is

16 required in criminal trials. Germany, France, those systems do

17 not require corroboration. This is an issue that this Tribunal,

18 these Chambers, have obviously decided that they are going to be

19 in line with the modern trend. If you as experienced jurists

20 believe a single piece of information beyond a reasonable doubt,

21 you may use that to convict. It is your assessment and your

22 determination of the evidence that counts. Can you use

23 corroboration as a factor? Certainly, always, and that is

24 available to you, but it is not a legal requirement.

25 There was something else that was raised in connection

26 with 18 to 20, and that was that Defence counsel said that

27 pertaining to 18 to 20 I had argued that you could base your

28 findings on a reasonable inference and that in fact lowered the

Page 8885

1 standard of proof. I believe that Defence counsel was talking

2 about reference to reasonable belief that or reasonable

3 inference that the victim was alive when the hose was shoved in

4 the victim's mouth.

5 I believe perhaps there are two issues here. As to

6 the ability to use reasonable inferences from the evidence and

7 use that as a basis to convict, I believe the law says you can

8 do that as long as you are convinced beyond a reasonable doubt.

9 But perhaps the issue there is, if there is more than one

10 reasonable inference and the other reasonable inference is

11 inconsistent with guilt, then of course that is a reasonable

12 doubt. But it is not a matter of being able to rely on

13 reasonable inferences. It is the matter of what is the one

14 reasonable explanation you are left once you do the assessment.

15 That, I believe, is the issue you face squarely on with 18 to

16 20, because the evidence there is very difficult evidence. It

17 may very well be you find there is more than one reasonable

18 inference and the other reasonable inference is inconsistent

19 with guilt, but that is your determination to make based on the

20 evidence and the reasonable inferences to be drawn from it.

21 The Defence many times in their oral argument to you

22 seemed to indicate that the Prosecution evidence should not be

23 believed because it comes from those of the other party; not to

24 be believed because it is based on sources that originated from

25 the other party to the conflict; not to be believed because our

26 evidence comes from victims of this persecution; only the other

27 party was heard and subsequently called; solely based its case

28 on witnesses of the other party.

Page 8886

1 We suggest to you it is most unfortunate that the

2 Defence has chosen to advance the same kind of thinking that led

3 to this conflict, that people should be judged for the group

4 they are assigned to rather than on an individual basis. In any

5 violent crime may the fact-finder consider that a victim might

6 have a prejudice? Yes, of course, just as you may believe that

7 a victimizer might have a prejudice or a bias also to be

8 untruthful. But that is an individual determination. It is

9 unfortunate indeed that the Defence should urge you not to

10 believe these people. Why is that? Because they had the great

11 misfortune of being the victims of Serbs in opstina Prijedor, to

12 be victimized and then to have it argued that victimization

13 alone renders them unreliable to testify about what was done to

14 them. That is a sad argument indeed.

15 The Defence speculates that the Prosecution witnesses

16 were willing, interested parties, quite willing to testify

17 because they were motivated to talk. That is truly

18 speculation. The Defence has no idea of the hesitation and

19 fear, of the difficulties some of the witnesses had to come here

20 to testify. The Defence has no idea of the number of potential

21 witnesses who refused to come here to testify. That is

22 speculation without any basis.

23 If one considers the witnesses who appeared in this

24 case, and you want to use a group analysis, we would suggest

25 that you have on the one hand the victims and say, does that

26 make them unbelievable, and, on the other hand, have members of

27 a group that perhaps has a very strong motive to rewrite history

28 to make the events in opstina Prijedor look less savage and less

Page 8887

1 brutal. We urge upon you that you not fall into those kinds of

2 group-based assessments of this evidence. This is not the

3 evaluation you should be making.

4 Going back to Witness S's remarks to you, you are

5 here. It is time to break the tradition that he spoke of.

6 Assess these individuals on both sides, the Prosecution and the

7 Defence witnesses as individuals, and of course that is what you

8 will do.

9 Your Honours, let me assure you I am not playing to

10 the Court when I tell you that you have dispensed justice

11 throughout these proceedings, ruling in such a way as to give

12 yourselves the most probative information available, but

13 limiting the information to that which was probative for you.

14 Please look carefully at the evidence that has been given to

15 you, look at it in context. Look at the inconsistencies and

16 determine if they are significant or minor, if they are the

17 result of interpretation or translation errors, if they are the

18 type of inconsistency you would expect from different people

19 saying the same event and testifying to it later in time or if,

20 in fact, the inconsistency is the product of intentional

21 untruth. Once you have assessed this evidence and assigned it

22 its proper weight, the weight of that evidence will lead you to

23 the only reasonable conclusion that the accused's guilt has been

24 proven beyond a reasonable doubt.

25 Thank you.

26 THE PRESIDING JUDGE: Any rejoinder, Mr. Orie?

27 MR. ORIE: Your Honour, I will just make a few remarks on the

28 character of the conflict and I will also tried to look up the

Page 8888

1 statement of Dr. Gow on the presence of JNA forces at the very

2 end of his statement. What I found as a matter of fact is not

3 the presence of JNA forces but, as Dr. Gow says, the shadow of

4 the JNA being present in 1994 where some pilots of the VJ were

5 flying aircraft. It is not very clear to me, but it is in a

6 totally different time frame, as far as I understand.

7 Then about Hambarine and the withdrawal of the JNA,

8 here again we have the confusion, whether it is the 19th or

9 23rd. Whatever part of the JNA that remained in Bosnia and

10 Herzegovina territory and that was not yet preparing or was

11 already busy leaving, would have been regarded as the VRS

12 because on from that moment the headquarters were changed from

13 Sarajevo to the other place I cannot pronounce. When the

14 Prosecutor refers to the resolution adopted on 30th May, I think

15 it is was 757, I am not sure about the number, then I would draw

16 your attention as well to the report of the Secretary General of

17 that same day, although released perhaps a couple of hours

18 later, where a totally different picture of the withdrawal of

19 the JNA is made.

20 I do not think that the Defence and the Prosecution

21 are in disagreement on the wordings of the Nicaragua case, agent

22 is acting on behalf of, but I emphasise the words prior to that

23 phrase and those words are "such a degree of control in all

24 fields as to justify treating the forces as acting on behalf".

25 That is what I tried to find, whether there was such a degree of

26 control in all fields in this case.

27 The Prosecution has told me that I had overlooked

28 Exhibit 180. I made a short remark on the testimony of Mr. Doko

Page 8889

1 referring to that same Exhibit. Exhibit 180 clearly shows that

2 there was a dispute between the President of the Serbian

3 autonomous region of Herzegovina and the VJ about whether or not

4 Podgorica Corps was withdrawing in an area east of Dubrovnik,

5 which is far away from what we are talking about. It seems to

6 be a rather isolated event, and it at least clearly indicates

7 that there was great disagreement between the Serbian

8 Herzegovinian autonomous region and Belgrade, which underlines

9 again that Belgrade was not in control of what the Serbs did in

10 Bosnia and Herzegovina.

11 The last remark I will make on the absurdity of the

12 outcome, Mr. Keegan when speaking on the Bosnian Serbs as

13 protected persons under the Geneva Convention said that one must

14 assume that the Appeals Chamber would find that they would have

15 been protected persons as well, and he continues for the rest of

16 his story, if that is the fact ... Well, it is not because the

17 outcome is absurd because the Appeals Chamber did in fact find

18 that the Bosnian Serbs would not be protected persons. So

19 Mr. Keegan tells us that we have to read it this way, but that

20 is core of the argument of the Appeals Chamber.

21 The final remark is that it is not a matter of how a

22 person considers their own citizenship as such, but whether they

23 are nationals of a state because that is the element, whether

24 they are nationals of one of the parties. Republika Srpska

25 could not possibly be regarded as a state, as the Appeals

26 Chamber learns us. Bosnian Serbs are presumed to hold

27 Bosnia-Herzegovina citizenship which would prevent them from

28 having the status of protected persons if the conflict would be

Page 8890

1 international.

2 THE PRESIDING JUDGE: Thank you. Mr. Wladimiroff.

3 MR. WLADIMIROFF: Thank you, your Honour. We have come to the stage

4 where the Prosecutor wants to have it both ways. When they

5 speak, for example, about Witness H they say that he could not

6 observe persons properly and suggest that, for this reason, he

7 may not have observed Dusko Tadic who, as the Prosecution

8 asserts, was there. But when it comes to other witnesses they

9 say that floating glances, for example, are good enough to

10 observe Dusko Tadic, and then they make references to the

11 evidence of Professor Wagenaar.

12 We may have done the same. So let us not continue

13 this war of words, and only deal with the evidence. The

14 evidence before you is clear and it is now for your Court to

15 decide the case. So it is in your hands and let us not touch on

16 it on any more.

17 Your Honours, I will only make one final remark about

18 identification since that issue seems to be very a important

19 issue also in the eyes of the Prosecution. I will confine

20 myself to three remarks, two in general, one in particular. The

21 general remark is that, indeed, it has been explained to us over

22 and over again that the only logical explanation is, as

23 Professor Wagenaar told us, that when a witness recognises or

24 better to say identifies an accused at the photospread the only

25 logical explanation is that the accused was seen at the scene of

26 the crime. Then the Prosecution puts a full stop. But we say

27 unless the image of the accused was shown before or had been

28 seen by the witness before, and that is the essence of the

Page 8891

1 evidence of Professor Wagenaar, that you have to exclude the

2 possibility that the witness saw the image of Dusko Tadic on

3 another occasion. That is my first remark.

4 Then I refer for all the details which have been

5 presented by the Prosecution as well as for the Defence about

6 what could have been known in public, and what is seen by

7 witnesses or what has been read by witnesses. May I say this.

8 Being a victim of the Bosnian conflict does not guarantee that

9 one would not read about the Tadic case or would not watch TV in

10 relation to Tadic. More specifically, being a Muslim victim of

11 the suppression of the Serbs, being a Muslim victim who has been

12 in the camps does not guarantee that such a victim would not be

13 interested when a person accused of his oppression stands

14 trial. It is in this context that we have reminded the Court

15 that all four witnesses were tested by the photospread during

16 the ongoing trial.

17 My second remark in general is that you only can be

18 certain about procedures if you would have received direct and

19 complete evidence about it, but you have not. You have not

20 heard evidence from Mr. Ackheim. You have not heard evidence

21 from Mr. Safer. You have not been provided with their notes, if

22 any. We only have the second-hand information of Mr. Reid.

23 My final remark on this is more in detail and for that

24 I will use two examples. First of all, Muslimovic. Indeed,

25 I am not suggesting that he might have been a regular watcher of

26 [redacted].

27 (redacted). But do keep in

28 mind that before he emigrated [redacted]

Page 8892

1 [redacted]

2 [redacted]

3 (redacted)

4 (redacted) to be exposed by information

5 concerning Dusko Tadic.

6 Your Honours, Draguna Jaskic, the point the Defence

7 has made was not that she has been shown the photospread twice.

8 The point we have made is that Professor Wagenaar was very clear

9 about his assessment that her statement does not include a

10 positive identification. Therefore, she is not one of the four

11 positive identification witnesses.

12 When it comes to Mr. Paepen who was involved in this

13 matter, we stress that there is no evidence that he ever

14 performed a photospread before, a photospread test before. It

15 may be that I am more careful in listening to language than

16 others because I am not a native speaker, but the Prosecution

17 during commenting on this aspect did not even suggest that he

18 ever did.

19 Finally, your Honour, dealing with interpretation and

20 translation, in Court we have had simultaneous interpretation.

21 The prior statements to which we referred were read back to the

22 witness. So, if we have problems in Court, we have told you

23 that these were of a minor importance. "Wheelbarrow" or

24 "wheelchair" does not bear any importance on the substance of

25 the evidence.

26 Let me close, your Honours, with the speculations

27 about the way we dismantled this pack of lies of witness L.

28 The assertions of the Prosecution about this are totally

Page 8893

1 unfounded, as are the allegations about Pero Opacic. It is

2 highly unfair to make that statement without proper evidence.

3 Let us only realise what the witness L story really means. It

4 means that we cannot simply rely on evidence given in Court by

5 witnesses, and that is what this case is all about.

6 Specifically when the evidence of both sides, your Honour, let

7 us face it, may be divided by ethnical lines, we trust and we

8 are convinced that this Court will find that the evidence

9 presented by both parties will not satisfy that Dusko Tadic is

10 guilty of any of the crimes.

11 THE PRESIDING JUDGE: Thank you, Mr. Wladimiroff. Does that conclude

12 the Defence rejoinder?

13 MR. WLADIMIROFF: Yes, your Honour.

14 THE PRESIDING JUDGE: Very good. Let me sign this last redaction

15 here. I did want to make just a few remarks, if I may?

16 Probably, as the participants know, it is over six months ago

17 that we began this trial. We have heard from over 120 witnesses

18 and I do not know how many exhibits we have received into

19 evidence, but I understand that we have over 6,000 pages of

20 transcript.

21 So I wanted on behalf of Judge Stephen and Judge

22 Vohrah and, of course, myself to thank the participants for

23 their very professional behaviour. May I say participants, it

24 is participants in this courtroom, but it is participants in the

25 booths and in places that you really cannot see. It is really

26 with their assistance that we have been able to proceed as we

27 have.

28 I think that the legal representation, as we said

Page 8894

1 previously, has been absolutely outstanding and that makes a

2 Judge's job much easier. So I want to thank the lawyers as well

3 on behalf of Judge Stephen, Judge Vohrah and myself.

4 This is the first trial before the International

5 Tribunal and, as I said, we have over 6,000 pages of

6 transcript. We have read many of the pages of transcript

7 ourselves, if not all of them, already but I am sure that we

8 will review them again, we will look at all of the evidence and

9 we will render a judgment in due course. So the Court is

10 adjourned.

11 1.05 p.m.

12 (The Court adjourned)