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
1 requires the existence of such an international conflict before
2 we can enter the area of individual responsibility for the grave
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
16 JUDGE STEPHEN: Yes.
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.
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
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
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
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.
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
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
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
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
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
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.
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
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
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
27 No authority has been provided by the Prosecutor for
28 such a solution. The consequence then would be that the
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
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
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 ----
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
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
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
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
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
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,
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.
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
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
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.
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
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
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?
1 THE PRESIDING JUDGE: Yes.
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.
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
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
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
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.
1 THE PRESIDING JUDGE: Thank you.
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
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
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?
19 THE PRESIDING JUDGE: No.
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
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
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
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
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
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
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
20 THE PRESIDING JUDGE: Well ----
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
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.
7 THE PRESIDING JUDGE: OK.
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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.
18 THE PRESIDING JUDGE: Mr. Keegan?
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
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
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
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
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
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
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
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
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
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
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
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]
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
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
27 THE PRESIDING JUDGE: I guess I do not want to prolong it, but what
28 was the date of the work report?
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
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
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,
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
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
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
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
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
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
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
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
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
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
28 Again in regard to Witness Q, the Defence indicated
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
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
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
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
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
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
21 MISS HOLLIS: I believe you have that in the materials already, your
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
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
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
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
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.
18 THE PRESIDING JUDGE: Then Mr. Besic?
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
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
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.
18 MISS HOLLIS: Yes.
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
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
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
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
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
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
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
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
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
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?
1 MR. WLADIMIROFF: We may have altogether about a quarter of an hour.
2 THE PRESIDING JUDGE: Fifteen minutes?
3 MR. WLADIMIROFF: Yes.
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
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
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
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
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
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,
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
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.
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
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
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
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
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
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
27 (redacted). But do keep in
28 mind that before he emigrated [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
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
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
28 I think that the legal representation, as we said
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
11 1.05 p.m.
12 (The Court adjourned)