1. 1 Wednesday, 9th February, 2000

    2 [Submissions on Appeal]

    3 [Open session]

    4 [The appellant entered court]

    5 --- Upon commencing at 9.37 a.m.

    6 JUDGE MAY: If the registrar would call the

    7 case.

    8 THE REGISTRAR: [Interpretation] Case number

    9 IT-95-14/1-A, the Prosecutor versus Zlatko Aleksovski.

    10 JUDGE MAY: Can we have the appearances,

    11 please. The Prosecution first.

    12 MR. YAPA: May it please Your Honours. I'm

    13 Upawansa Yapa and I appear for the Prosecutor with

    14 Mr. William Fenrick and Mr. Norman Farrell.

    15 JUDGE MAY: Thank you. For the appellant.

    16 MR. JOKA: Your Honour, I'm Srdzan Joka,

    17 Defence counsel for the accused Zlatko Aleksovski.

    18 JUDGE MAY: Thank you.

    19 This is the appeal of Zlatko Aleksovski

    20 against the judgement and sentence imposed by the Trial

    21 Chamber in this case. It will be heard together with

    22 an appeal by the Prosecutor, a cross-appeal, also

    23 against the judgement and sentence.

    24 The appellant's notice, the accused's notice

    25 was, in fact, filed first in this case and therefore we


  2. 1 propose to hear his appeal first. We will hear the

    2 Prosecution in reply. There will be a right of the

    3 appellant to respond briefly to that. Thereafter, we

    4 will hear the Prosecution appeal and then the appellant

    5 in reply. Unless there are any objections, that is the

    6 course which we propose to follow.

    7 But I would add this, that there have been

    8 voluminous written pleadings in this case and there is

    9 no need for counsel to repeat them. What we want to

    10 hear today is fresh argument and clarification of

    11 matters which may not be clear from the pleadings.

    12 The timetable which we will follow is to sit

    13 from now until 11. We'll then adjourn for half an

    14 hour. We will sit from 11.30 to 1 and there will

    15 then be the luncheon adjournment. We will sit again

    16 then from half past two to four. By this time, we hope

    17 to have concluded the hearing, but if we haven't, there

    18 will be the possibility of extending the hearing.

    19 Now, unless there are any objections, I

    20 propose to turn to the appellant's case.

    21 Mr. Joka, I propose to summarise the grounds

    22 of appeal as I understand them. If I have any of them

    23 wrong, would you kindly say so and explain what the

    24 ground is to us so that we have it fully in mind. But

    25 as I understand the position, the first ground of

  3. 1 appeal is that the Trial Chamber failed to establish

    2 that the accused had a discriminatory intent which you

    3 say is necessary to convict him for the offences under

    4 Article 3 of the Statute.

    5 The second ground, as I understand it, is

    6 that the conduct proved, in particular, the violence

    7 against the detainees, was not sufficiently grave as to

    8 warrant a conviction under Article 3 and, secondly,

    9 that it may have been justified by necessity.

    10 Pausing there, that is, in effect, two

    11 grounds, and I would add this, that we asked for

    12 additional briefs on the issue of necessity and,

    13 Mr. Joka, you said that you would expand, you're

    14 prepared to expand your brief in argument and, indeed,

    15 we shall invite you to do that.

    16 The third ground is that the Trial Chamber

    17 erred in relying on evidence which was inherently

    18 unreliable and did not meet the standard of proof

    19 required for conviction, that is, proof beyond

    20 reasonable doubt, and in this connection, you refer to

    21 an absence of medical reports or scientific evidence.

    22 The fourth ground is that the Trial Chamber,

    23 you say, erred in their application of Article 7(3) of

    24 the Statute, i.e., they erred in their finding that the

    25 appellant was in a position of superior responsibility,

  4. 1 and as far as that ground is concerned, we would be

    2 grateful for your assistance as to whether you're

    3 saying that this was an error of fact or an error of

    4 law or both, and perhaps you could clarify that for

    5 us.

    6 Now, Mr. Joka, would you confirm that I have

    7 stated the grounds of appeal accurately, and if not,

    8 could you kindly indicate what the grounds are.

    9 MR. JOKA: [Interpretation] As far as I can

    10 see, Your Honour, you have listed all the grounds of

    11 appeal which we indicated in our brief in which we

    12 challenge the guilty judgement regarding Count 10.

    13 Valuing your time and bearing in mind the

    14 fact that you have just said that you do not wish any

    15 repetitions to be made but merely any additional

    16 elaborations to be provided, in view of that, I would

    17 not have anything to add to what we have stated in our

    18 appeal regarding, first, discriminatory intent and,

    19 secondly, our claim that the violence committed was not

    20 sufficiently serious to warrant a condemnation. Those

    21 are the first two points that you have made.

    22 Third is the question of necessity or extreme

    23 necessity.

    24 JUDGE MAY: Let's deal with the first two

    25 points, and you can assist us in some matters. There's

  5. 1 a matter which I wish to raise in relation to the

    2 second of those grounds. You're saying, in effect,

    3 Mr. Joka, that the conduct for which the accused was

    4 convicted was not a serious violation of international

    5 humanitarian law as provided in Article 1; is that

    6 right?

    7 MR. JOKA: [Interpretation] Yes. Yes, Your

    8 Honour.

    9 JUDGE MAY: And you say that this is a point

    10 which you can take at this stage in the proceedings,

    11 although essentially it is a point against the

    12 jurisdiction of the Tribunal, isn't it?

    13 MR. JOKA: [Interpretation] We are not

    14 challenging the jurisdiction of the Tribunal.

    15 JUDGE MAY: Whatever the merits of that are,

    16 supposing we did come to the conclusion that it was a

    17 point that you could take even at this stage of the

    18 proceedings, in an appeal against conviction, you're

    19 saying, are you, that the conduct which the Trial

    20 Chamber found proved, and for a moment assuming that

    21 that is what has been proved and that that conviction

    22 was correct, you're saying that it's not serious enough

    23 to come within the serious violations; is that right?

    24 MR. JOKA: [Interpretation] Precisely so.

    25 That is our position.

  6. 1 JUDGE MAY: That's the position you held

    2 despite the fact that what the Trial Chamber found, and

    3 of course this is subject to your appeal, but assuming

    4 for a moment that it's correct -- we will have to

    5 decide whether it is or not -- that he was -- the

    6 accused, the appellant, was the warden of this

    7 detention centre; he mistreated, they say, the Trial

    8 Chamber found, at least two of the detainees; himself

    9 was involved directly in it; that as the warden he

    10 failed to prevent the mistreatment, violence to, and

    11 abuse of detainees; and that he was involved in the

    12 selection of detainees for trench digging and the use

    13 as human shields. That's the findings, if I've

    14 summarised them correctly.

    15 Are you saying that, particularly that latter

    16 finding, that he was involved in the selection of

    17 people and the conditions that existed at that time,

    18 trench digging and the use of human shields, so that is

    19 under the possibility of fire, that that's not a

    20 serious violation of International Humanitarian Law for

    21 a warden or a commander of a prison to be found guilty

    22 of?

    23 MR. JOKA: [Interpretation] Your Honour, with

    24 your permission, I should like to make a distinction.

    25 Such behaviour, conduct, is indeed a violation of

  7. 1 humanitarian law, but our position is that this has not

    2 been proven, that facts have not been established that

    3 the appellant committed those acts and such conduct.

    4 JUDGE MAY: I may have misread your pleading,

    5 but I don't remember that point being specifically

    6 pleaded. Mr. Joka, I can't remember you pleading

    7 that.

    8 MR. JOKA: [Interpretation] Your Honour, we

    9 never claimed, nor gave any indication that such

    10 conduct, speaking in abstract terms, can be considered

    11 permissible and acceptable; on the contrary.

    12 If I may add, Your Honour. What was going on

    13 regarding human shields and trench digging, it is our

    14 submission and it was our position that this was

    15 outside the jurisdiction of the appellant. This was

    16 something carried out by the military police and under

    17 its control.

    18 JUDGE MAY: Well, going on to the second

    19 ground -- I call it the second ground, but I may say it

    20 is attached, in light of what you just said -- you say

    21 that his conduct may have been justified by necessity.

    22 And as I understand your brief, you say that he acted

    23 out of necessity because he was thrown into a

    24 situation, after the conflict had begun, and he had to

    25 choose a lesser evil in what he had to do and,

  8. 1 therefore, you say that the principle applies of

    2 exceptio causa necessitatio, not necessarily a

    3 principle which is familiar to common lawyers.

    4 You say, first of all, that that provides a

    5 defence to him. How do you explain that? You said you

    6 would expand on it and perhaps you'd do that now.

    7 MR. JOKA: [Interpretation] I should like to

    8 try to provide a general framework. We lawyers were

    9 educated in the civil law system and as such, we have

    10 certain philosophies which we apply more or less

    11 automatically. Within that context, we offered, as a

    12 possible topic of discussion, that certain acts

    13 committed by the appellant were done so because he was

    14 in a situation of extreme necessity. What we implied

    15 under extreme necessity was summarised by you quite

    16 accurately a moment ago.

    17 We didn't claim extreme necessity as a

    18 defence in the course of the proceedings in view of the

    19 system in which we were educated and which we are

    20 working, because it is not customary in a common-law

    21 system, nor would it be right for us to lecture the

    22 Tribunal. That would be pretentious on our part. We

    23 just wished to highlight the facts to which the

    24 Tribunal will apply the law.

    25 We realised that according to the Rules of

  9. 1 this Tribunal, there are only two defences, the alibi

    2 of defence or the alibi of limited mental capacity, and

    3 neither of these applied to our case. So we didn't

    4 think it necessary to use extreme necessity from the

    5 beginning.

    6 JUDGE MAY: Just a moment. Mr. Joka, let me

    7 just understand. You're not saying that those are the

    8 only two defences which are open to an accused before

    9 this Tribunal, are you? They are defences to which

    10 particular rules apply, rules about disclosure, but an

    11 accused is free, of course, to raise any defence that

    12 he may legally raise and one which is relevant. You

    13 understand that, surely.

    14 MR. JOKA: [Interpretation] Yes, I do. Maybe

    15 I don't quite understand what is expected of me.

    16 JUDGE MAY: Well, the point which has been

    17 made is that you didn't raise this defence before the

    18 Trial Chamber. You are raising it now. You're saying

    19 that it's a defence, that the accused acted out of

    20 necessity. The common lawyers might talk of duress, if

    21 you follow that. But how is it right for you to raise

    22 it on appeal when you didn't raise it before the Trial

    23 Chamber? Do you understand the point?

    24 MR. JOKA: [Interpretation] I do. Perhaps we

    25 expected the Trial Chamber would itself take that into

  10. 1 consideration. Since they didn't do that, we thought

    2 it necessary to draw attention to this possibility in

    3 the appeals proceedings.

    4 JUDGE HUNT: Mr. Joka, there is no material

    5 before the Trial Chamber from which any findings could

    6 have been made about that, is there? Surely you had an

    7 obligation as counsel to put the facts before the Trial

    8 Chamber from which it could have possibly made a

    9 finding of this defence of necessity.

    10 MR. JOKA: [Interpretation] That is correct,

    11 Your Honour. We feel that we did provide the facts.

    12 That is our submission.

    13 JUDGE HUNT: Where is the evidence? Can you

    14 just tell us what the evidence is so then we can

    15 understand what you're taking about? Where is the

    16 evidence of necessity?

    17 MR. JOKA: [Interpretation] There is no doubt

    18 as to the period in which Zlatko Aleksovski was prison

    19 warden. There is also no dispute that before he took

    20 over, a certain number of detainees were already

    21 there. So as you yourself, Your Honour, mentioned, he

    22 found himself in a certain situation, and it is our

    23 submission that being in such a terrible situation,

    24 that this question of a lesser evil could be accepted,

    25 and in that sense, also the question of necessity, only

  11. 1 insofar as that goes, generally speaking.

    2 JUDGE MAY: Let me interrupt so that we have

    3 it. I summarise what I understood your brief to say,

    4 and you are saying, are you, that from those matters

    5 which you say were part of the evidence, the Trial

    6 Chamber should have inferred or concluded that there

    7 was a defence of necessity open to your client? That's

    8 the way you put it, I understand it.

    9 MR. JOKA: [Interpretation] It is our position

    10 that the Trial Chamber could have but need not have

    11 taken that into consideration. But if it felt that

    12 there were elements in support of such an inference, it

    13 should have done that.

    14 But, Mr. President, with your leave, let me

    15 say extreme necessity is not a crucial grounds of our

    16 appeal, if that is helpful in any sense in providing an

    17 explanation.

    18 JUDGE MAY: Yes.

    19 JUDGE MUMBA: Before we leave that defence of

    20 extreme necessity, which you're now saying is not

    21 crucial to your appeal, I just want to be clear. Does

    22 the defence of necessity, if we are to accept it, does

    23 it go to the manner in which the accused treated the

    24 detainees or just the fact of detention? Because if

    25 you recall, the accused was found guilty of the manner

  12. 1 in which he treated the detainees inside the prison and

    2 also allowing them to be -- selecting them for work

    3 outside the prison. So is the defence of necessity

    4 going to the fact of detention only, or to the manner

    5 in which the accused treated the detainees?

    6 MR. JOKA: [Interpretation] If you mean the

    7 fact of detention, you probably mean the conditions of

    8 detention. I'm asking you so that I can give you a

    9 precise answer. In that case, it applies only to the

    10 treatment of prisoners, the latter point you made.

    11 JUDGE MUMBA: By the accused, yes.

    12 MR. JOKA: [Interpretation] Exactly, yes.

    13 JUDGE ROBINSON: Mr. Joka, in explaining the

    14 defence of necessity as you understand it, you said the

    15 accused chose a lesser evil, presumably as against the

    16 greater evil, but wouldn't it be open to him to have

    17 chosen no evil at all? Wouldn't that have been an

    18 option to him?

    19 MR. JOKA: [Interpretation] I'm afraid I don't

    20 know how to answer that question. That is a question

    21 of fact.

    22 JUDGE MAY: Very well.

    23 JUDGE ROBINSON: The point, really, is that

    24 he had an option, and if he had an option, I don't see

    25 how necessity could apply.

  13. 1 MR. JOKA: [Interpretation] Your Honour, we

    2 are entering the sphere of hypotheses. He certainly

    3 couldn't have released the people, he couldn't have let

    4 them free. If he could have helped them in other ways,

    5 I don't know, that's a question of fact. We are just

    6 comparing the evil committed with a lesser evil.

    7 Radical solutions in that generalised madness were not

    8 possible.

    9 JUDGE MAY: Very well. Let's move on to the

    10 more crucial grounds, as you call them.

    11 MR. JOKA: [Interpretation] If I may follow

    12 the order that you have suggested, Your Honour.

    13 As a fourth [sic] ground of appeal, which we

    14 discuss in our appeal brief, we claim that the

    15 conclusion is wrong because the evidence is not

    16 reliable beyond any reasonable doubt, that the

    17 treatment of detainees was such that resulted in

    18 certain bodily injury. We elaborated those points in

    19 detail saying what we meant by harm to body, how

    20 serious that injury must be and what the intention

    21 behind it must be. As far as I understand, maybe there

    22 is some doubt as to the question of evidence, that is,

    23 the medical documents and reports, or some other

    24 objective corroboration of the injuries sustained.

    25 That is how I understood your summary, Your Honour. In

  14. 1 our appeal brief, we set out those grounds.

    2 May I just add that such a position of the

    3 Defence is also the consequence of the legal system we

    4 come from, and I think this is something that cannot be

    5 ignored, for the simple reason that everything relates

    6 to a state that fell apart, one could go further and

    7 say the whole of the Balkans, where relations are

    8 different and the philosophy and law is different than

    9 it is in Western Europe. It is difficult to make

    10 comparisons in the consciousness of an average Muslim

    11 man or a Croat man from Busovaca with an average person

    12 living in Lyon, for instance, France. The level of

    13 consciousness is quite different. Mentality,

    14 traditions are different. We cannot escape from our

    15 own traditions, nor are we trying to do that, nor can

    16 we ignore our legal system.

    17 Therefore, when we underline this point, that

    18 we feel that some objective evidence was needed to

    19 corroborate serious injuries sustained by those

    20 detainees, we do so because that is how we were trained

    21 and we are convinced that something that can be

    22 verified must be verified.

    23 To be more specific, in the case of injuries,

    24 this was left to each of the victims to tell the truth

    25 or not. It is up to His Honour. But there was a

  15. 1 possibility to verify those things because there were

    2 medical centres, there were medical reports. We said

    3 all this in the course of our case, and that is why we

    4 feel that the evidence was not reliable beyond

    5 reasonable doubt.

    6 JUDGE MAY: In fact, that was Ground 3. You

    7 said Ground 4, but it was Ground 3.

    8 MR. JOKA: [Interpretation] Yes, I'm sorry.

    9 JUDGE MAY: The issue there is a matter for

    10 the Trial Chamber, is it not? They saw and heard the

    11 witnesses. It was for them to decide whether they were

    12 truthful witnesses and accurate witnesses. Therefore,

    13 if a witness said he was injured in a particular way,

    14 is there any reason -- if the Trial Chamber finds that

    15 he's telling the truth, he's accurate, isn't that

    16 sufficient evidence that he did sustain the injuries?

    17 MR. JOKA: [Interpretation] The position of

    18 the Defence is that it is not.

    19 Allow me to make a comparison. Regardless of

    20 where a murder has occurred, a post-mortem will be

    21 carried out, some objective evidence must be provided,

    22 and there is a possibility to establish in an objective

    23 manner whether somebody sustained physical injury.

    24 We're not talking about mental harm, we're talking

    25 about bodily injury, serious bodily injury.

  16. 1 JUDGE MAY: Very well. Unless there's

    2 anything else you would like to add, perhaps you can

    3 deal with the next ground.

    4 MR. JOKA: [Interpretation] The next ground

    5 was the question of superior responsibility, was it

    6 not? To be quite frank, I don't know what I could add

    7 to what we have already stated in our written brief. I

    8 think that our position is stated clearly.

    9 You asked whether it was an error of law or

    10 an error of fact. In answer to that, one must consider

    11 the relationship between the prison warden, a civilian,

    12 and the guards who were members of the military police,

    13 and his competencies in relation to them, those are

    14 facts. As to whether, in view of those facts, the law

    15 was properly applied, it is, of course, up to you to

    16 say and to judge.

    17 JUDGE MAY: Is there anything you want to

    18 add, Mr. Joka? Is there anything you want to add to

    19 your submissions?

    20 MR. JOKA: [Interpretation] Your Honours, I

    21 have nothing to add to the arguments presented in our

    22 appeals brief.

    23 JUDGE MAY: We have those arguments and, of

    24 course, we will consider them in due course. Thank

    25 you.

  17. 1 MR. JOKA: [Interpretation] Thank you.

    2 JUDGE MAY: Mr. Yapa, it may be that we can

    3 deal fairly briefly with these matters in the light of

    4 the brief arguments that we've heard. I don't think we

    5 need trouble you certainly on the first ground since no

    6 additional argument has been added.

    7 As to the other three grounds, there has been

    8 some matter on Ground 2; Ground 3 appears to be a

    9 straightforward matter of whether we think it right

    10 that the Trial Chamber were right in accepting the

    11 evidence or not in the form in which it was put before

    12 them; Ground 4, I don't think very much has been added

    13 to what we knew from the written submissions. But if

    14 there's anything you would like to add on Grounds 2, 3,

    15 and 4, perhaps you could do that briefly.

    16 MR. YAPA: I thank you, Your Honour.

    17 In fact, when the appeal brief of my learned

    18 friend was received by us, on the ground of necessity,

    19 I mean no disrespect to my learned friend, we had

    20 certain difficulties in understanding as to what

    21 actually the Defence was speaking of. As Your Honour

    22 was pleased to ask him for an explanation to the

    23 defence of necessity, it appears that there isn't

    24 anything further that has to be added to whatever has

    25 been stated in the appeals brief and in the subsequent

  18. 1 filings.

    2 We have, in our response, tried our best, as

    3 far as possible, to provide a comprehensive response to

    4 the appeal made by the appellant. I do not have

    5 anything further to add to the submissions that have

    6 been made. If Your Honours are inclined, if it is

    7 necessary for Your Honours' consideration, on the

    8 ground of necessity that has been raised, it may be

    9 possible to make further submissions.

    10 [Appeals Chamber confers]

    11 JUDGE MAY: There's not much which you can

    12 assist us. Thank you.

    13 MR. YAPA: I thank you.

    14 JUDGE MAY: Very well. We'll turn next to

    15 the Prosecution appeal.

    16 Mr. Yapa, we will hear your submissions.

    17 Again if you could bear in mind that we have had the

    18 written submissions for some time, and not go over them

    19 again, please. I know you won't.

    20 Part of your appeal is an appeal against

    21 sentence.

    22 MR. YAPA: Yes, Your Honour.

    23 JUDGE MAY: When you deal with that, I would

    24 be grateful if you would help us by pointing out

    25 precisely what it is you say -- what conduct you say

  19. 1 that the accused was sentenced for. I have summarised

    2 it and, of course, we have read the judgement, but I

    3 think it's important, if we are to reconsider the

    4 sentence, we know precisely what it is that we have to

    5 pass sentence upon and to make sure there's no dispute

    6 about it. And I will give the appellant, obviously,

    7 the opportunity to respond to what you say the conduct

    8 is for which the appellant has been sentenced, but you

    9 will come to that, of course, in due course.

    10 MR. YAPA: Yes, Your Honour.

    11 JUDGE MAY: But we will hear your

    12 submissions.

    13 MR. YAPA: Thank you, Your Honour. In the

    14 appeal by the Prosecutor, I intended to, at the

    15 commencement, make certain introductory remarks on the

    16 appeal made by us, but it appears that at the present

    17 moment, in the context of the proceedings now taking

    18 place, it may not be necessary for me to refer to all

    19 the items that I proposed to refer to.

    20 We have appealed on three grounds before Your

    21 Honours. They deal with -- the first ground of appeal

    22 is concerning the finding that it had not been proved

    23 that the victims were protected persons. It is our

    24 submission that the Trial Chamber erred in its

    25 judgement in deciding that Article 2 of the Statute was

  20. 1 inapplicable because the Bosnian Muslims who were held

    2 in the Kaonik prison between January 1993 and the end

    3 of May 1993 were not protected persons within the

    4 meaning of Article 4 of the Geneva Conventions. This

    5 will be a ground of appeal on a matter of law, which

    6 will come under Article 25(1)(a) of the Statute.

    7 The second ground of appeal is that the Trial

    8 Chamber erred in holding that the accused did not incur

    9 responsibility under Article 7(1) of the Statute for

    10 mistreatment suffered by the detainees outside the

    11 Kaonik prison compound.

    12 This ground of appeal may be identified as

    13 one of mixed question of law and fact. I say so

    14 because it is our submission that the Trial Chamber

    15 made a factual error in finding that the Prosecution

    16 had not claimed that the appellant was liable under

    17 Article 7(1) for mistreatment of the prisoners outside

    18 the prison other than their use as trench diggers and

    19 human shields. Further, it is our submission that the

    20 Trial Chamber erred in law in holding that the accused

    21 appellant did not incur responsibility on the basis of

    22 Article 7(1) for his participation in the mistreatment

    23 that the prisoners suffered while outside the prison

    24 compound.

    25 The third matter is the matter -- Your

  21. 1 Honour, the precedent referred to is on the question of

    2 sentence. It is our position that the Trial Chamber

    3 erred in sentencing the accused to a term of two and a

    4 half years imprisonment.

    5 These grounds of appeal will be referred to

    6 and explained as we proceed. Your Honours' court has

    7 had occasion to pronounce on the function of the

    8 Appeals Chamber when it exercises it's appellant

    9 jurisdiction. In the Tadic decision, it was held that

    10 the jurisdiction of the Appeals Chamber was of a

    11 corrective nature, and as far as the Statute of the

    12 Tribunal is concerned, an appeal before Your Honours'

    13 court did not involve a trial de novo.

    14 We are mindful of the principle that we, as

    15 the appealing party, bear the burden of establishing

    16 the grounds of appeal we urge before Your Honours'

    17 court. It is for us to satisfy Your Honours that there

    18 is an error of law invalidating the decision or that

    19 there is an error of fact resulting in a miscarriage of

    20 justice.

    21 In the appeal brief of the Prosecution, we

    22 have made certain submissions on the nature of the

    23 standard that an appeal party must satisfy before the

    24 Appeals Chamber. Perhaps the subject needs further

    25 elucidation.

  22. 1 On the premise that there is a standard that

    2 should be achieved and established on the first ground

    3 as stipulated in Article 25(1)(a), we illustrate two

    4 ways in which the errors of law may occur. Firstly, in

    5 regard to the substantive law and, secondly, in respect

    6 of the exercise of judicial discretion.

    7 On the first category, it is our submission

    8 that the Appeals Chamber has the authority to review

    9 the question or the matter of law, sitting as an

    10 appellate body. Of course, it is not to say that the

    11 Appeals Chamber acts oblivious of the judgement on the

    12 matter, by the Trial Chamber. It is for the parties

    13 seeking --

    14 THE INTERPRETER: Counsel, slow down,

    15 please.

    16 MR. YAPA: It is for the party seeking to

    17 appeal on a matter of law to satisfy the Appeals

    18 Chamber that the Trial Chamber has erred in law.

    19 On the question of the manner of exercising

    20 judicial discretion, our submission is not that the

    21 Appeals Chamber could substitute its will for that of

    22 the Trial Chamber. What is of necessity is that it has

    23 to be shown that the Trial Chamber abused its

    24 discretion, thereby causing prejudice to the

    25 appellant.

  23. 1 For the purposes of the submission, we have

    2 identified certain situations typifying the exercise of

    3 judicial discretion by a Trial Chamber. It is our

    4 submission that in the absence of objection taken at

    5 the relevant time in the Trial Chamber in the proper

    6 manner, a party is not entitled to seek -- to seek to

    7 appeal upon that ground.

    8 On the second broad category of grounds of

    9 appeal, namely the ground of appeal under

    10 Article 25(1)(b), we make reference to two ways in

    11 which errors of fact may arise. The first is when

    12 additional evidence is available to show that an error

    13 of fact has occurred. It may be said that this

    14 situation does not strictly fall within the area of

    15 error of fact for the reason that the decision of the

    16 Trial Chamber was on the basis of the facts available

    17 at that time. The second type of error, error of fact,

    18 is that that is apparent on the face of the record.

    19 In the Tadic appeal decision, Your Honours'

    20 court set down a standard to be used in construing an

    21 issue of error of fact. It is very clearly stated that

    22 the task of hearing, examining, and weighing the

    23 evidence was a matter for the Trial Chamber.

    24 If the position is that the decision arrived

    25 at by the Trial Chamber could not reasonably have been

  24. 1 arrived at by any reasonable person, then it is open to

    2 the Appeals Chamber to substitute its own finding for

    3 that of the Trial Chamber. This reasoning makes it

    4 clear that there can be differing opinions expressed by

    5 the trial Judges on the facts. The test of

    6 reasonableness is the test that is recognised by the

    7 Appeals Chamber.

    8 Although strictly not relevant to this part

    9 of the proceedings, there is one other matter I wish to

    10 refer to at this stage. Your Honours were pleased to,

    11 by the scheduling order of the 8th of December, 1999,

    12 make order on both parties to file additional

    13 submissions on the doctrine of stare decisis and the

    14 defence of necessity.

    15 On the defence of necessity, it may not be

    16 necessary for us to make submissions. I wish to,

    17 without going into detail, refer to the general

    18 position we take as regards stare decisis. We opted to

    19 use the term "precedent" on the basis that the

    20 principle known as stare decisis is not a general

    21 principle of law. The Appeals Chamber is the superior

    22 court or the superior court in this Tribunal or the

    23 final court in this Tribunal.

    24 We have, in our written submissions, stressed

    25 on certain reasons as to the desirability of the

  25. 1 Appeals Chamber following the previous decisions of the

    2 Appeals Chamber on issues of law.

    3 I come next - to the question of the

    4 third ground of appeal. That is on the

    5 matter of sentence, which will be in detail presented

    6 by Mr. Norman Farrell. On the first two grounds,

    7 detailed submissions before Your Honours will be made

    8 by Mr. William Fenrick. I thank Your Honours.

    9 JUDGE MAY: Thank you. Yes, Mr. Fenrick.

    10 MR. FENRICK: Your Honour, in fact, I will

    11 speak to the first ground of appeal, and Mr. Farrell

    12 will address the other ones. I will bear in mind your

    13 admonition to be as brief as possible. I must,

    14 however, point out that at least to me, this is a

    15 particularly complicated issue and may take a little

    16 more time to address than some of the other ones.

    17 As its first ground of appeal, the

    18 Prosecution is appealing the finding by the majority of

    19 the Trial Chamber that the Prosecution had failed to

    20 prove that the Bosnian Muslim civilian detainees, who

    21 were the victims referred to in Counts 8 and 9 of the

    22 indictment, were protected persons under Article 2 of

    23 the Statute.

    24 To reach this finding, the majority of the

    25 Trial Chamber posed two questions and answered both of

  26. 1 them in the negative. The two questions were, first,

    2 did the alleged mistreatment occur during an

    3 international armed conflict; and consequently, second,

    4 were the victims protected persons under the Fourth

    5 Geneva Convention, which is concerned with the

    6 protection of civilians.

    7 It is the submission of the Prosecution that

    8 the majority of the Trial Chamber erred because it

    9 applied the wrong test when endeavouring to answer each

    10 of the questions. If the correct tests had been

    11 applied to the facts, both of the questions would have

    12 been answered in the affirmative and the accused would

    13 have been convicted on Counts 8 and 9 of the

    14 indictment.

    15 Concerning the first question, which relates

    16 to the existence of an international armed conflict, it

    17 is the submission of the Prosecution that the proper

    18 test is the overall control test as set forth in the

    19 Tadic appeals judgement. As Your Honours will, of

    20 course, recollect, the incidents with which the Tadic

    21 Chambers were concerned occurred during the conflicts

    22 involving Bosnian government forces and Bosnian Serb

    23 forces. The Appeals Chamber, in that case, had to

    24 consider whether that particular conflict should be

    25 regarded as international because of the nature of the

  27. 1 control exercised by Yugoslavia and its armed forces

    2 over the Bosnian Serbs and their armed forces.

    3 The test identified by the Appeals Chamber,

    4 which the Prosecution is referring to as the overall

    5 control test, is elaborated upon in paragraph 137 of

    6 the judgement, which states, in part, that control by a

    7 state over subordinate armed forces or militias or

    8 paramilitary units may be of an overall character and

    9 must comprise more than the mere provision of financial

    10 assistance or military equipment or training. This

    11 requirement, however, does not go so far as to include

    12 the issuing of specific orders by the state for its

    13 direction of each individual operation.

    14 Under international law, it is by no means

    15 necessary that the controlling authorities should plan

    16 all the operations of the units dependent on them,

    17 choose their targets, or give specific instructions

    18 concerning the conduct of military operations and any

    19 alleged violations of international humanitarian law.

    20 Now, as Your Honours will also recollect, of

    21 course, in the Tadic case, there were a variety of

    22 different tests put forward for specific situations or

    23 specific groups. It's our submission that the overall

    24 control test, which was one of three tests discussed,

    25 was the appropriate one both for determining the

  28. 1 relationship between Yugoslavia and the Republika

    2 Srpska in the Tadic case and for assessing control, in

    3 this particular case, between Croatia and the Bosnian

    4 Croat entity and the Bosnian Croat forces.

    5 The majority of the Trial Chamber in this

    6 case failed to apply the overall control test and

    7 incorrectly decided that the Prosecution needed to

    8 demonstrate that Croatia had given a specific mandate

    9 or specific instructions to the Bosnian Croats with

    10 respect to the conflict in the Lasva Valley area, which

    11 is where, of course, the incidents related to this case

    12 occurred. It is submitted, this was the wrong question

    13 and imposed the wrong frame of reference for examining

    14 the evidence.

    15 The Prosecution submits that if the overall

    16 control test was applied correctly to the factual

    17 findings made by the Trial Chamber, it would have

    18 established that in the circumstances of the case, the

    19 Croatian authorities exercised overall control over the

    20 HVO in the first half of 1993. Further, it submits

    21 that in applying the test, one must have regard to the

    22 overall situation in Bosnia and Croatia. If Croatia

    23 exercised overall control, it did so for the entire HVO

    24 or the entire Bosnian Croat entity; it did not do so

    25 for parts of the HVO, in particular, parts of Bosnia.

  29. 1 Second, if there is, in fact, or if the Court

    2 is convinced there is an international armed conflict

    3 between Bosnia and Croatia, the law for international

    4 armed conflict applies to all relations between Bosnia

    5 and Croatia, including the relations between the

    6 Bosnian Croats and Croatia, throughout the territory of

    7 both states not just to certain activities in

    8 particular areas.

    9 JUDGE MAY: What was the evidence --

    10 supposing that we accepted your submission that the

    11 Trial Chamber applied the wrong test or the majority

    12 applied the wrong test, what, in brief, was the

    13 evidence which points to the fact that if they had

    14 applied the right test they would have come to the

    15 right conclusion? After all, I think they referred to

    16 overall control at one stage in the judgement, as I

    17 recollect it.

    18 MR. FENRICK: Your Honour, they certainly

    19 used the word, or the two words, and they may have used

    20 them more than once, but it was certainly -- first of

    21 all, you may recollect that this particular decision

    22 came out before the Tadic appeal decision was issued,

    23 and what had been discussed prior to that was a variety

    24 of tests related to the Nicaragua case as has been put

    25 forward in the Tadic trial decision and a variant of

  30. 1 that was put forward in the Celebici decision, but it's

    2 our view that essentially what seemed to be focused

    3 on by the Trial Chamber was this concept of having

    4 orders being given to -- or a requirement, rather, that

    5 orders be given by Croatia to the Bosnian Croats in

    6 order for the test, whatever one called it, to be

    7 successfully applied.

    8 Our submission here is that we have a variety

    9 of things which are indicated in the evidence which

    10 would support effective application of the overall

    11 control test. One, in particular, would be the

    12 evidence of Croatian control over the Bosnian Croat

    13 entity. Now, we do have evidence, for example, which

    14 the Court accepted, that at a particular point in 1996,

    15 Mr. Tudjman was able to remove Mate Boban who was the

    16 head of the Bosnian Croat entity because he apparently

    17 was not following policies that Mr. Tudjman wished

    18 followed. If, as late as 1996, that kind of control

    19 could be exercised over the political leadership of the

    20 Bosnian Croats, and that is as late as 1996, it would

    21 be our submission that, if anything, you had a greater

    22 degree of control prior to that time. That linkage

    23 between the Bosnian Croat and the Croatian political

    24 entities would, from our perspective, be sufficient to

    25 establish overall control virtually by itself.

  31. 1 We also, of course, have evidence which was

    2 accepted by the Court at the trial level that there

    3 were Bosnian Croatian -- excuse me, Croatian forces in

    4 Bosnia, uncontested evidence of that. That alone would

    5 not be sufficient, from the Prosecution's perspective,

    6 to establish that you had overall control over the

    7 Bosnian Croat forces. What we really have to do, we

    8 submit, or what the Court must be convinced of, is that

    9 there is a sufficient degree of control exercised over

    10 the Bosnian Croat military forces by the Croatian

    11 authorities, whatever they may be.

    12 Our submission is that there is ample

    13 evidence to support a conclusion of successful

    14 application of the overall control test with relation

    15 to the military aspect of things alone. What we have,

    16 the Trial Chamber -- well, perhaps if I might step back

    17 a bit.

    18 In the Tadic case, the way in which the

    19 various armed forces evolved was something like this:

    20 Initially, what we had was one state, Yugoslavia; one

    21 armed force, essentially the JNA. As things went

    22 along, as Bosnia broke away from Yugoslavia, of course

    23 the Socialist Federal Republic of Yugoslavia became the

    24 Federal Republic of Yugoslavia. In April of 1992, we

    25 have sort of roughly the date of creation of two armed

  32. 1 forces where there had been one before. You get the

    2 creation of the VJ, the Federal Republic of Yugoslavia

    3 armed forces, and the VRS, the Republika Srpska armed

    4 forces. But essentially it's the same armed force

    5 breaking into two. The Court in the Tadic appeals case

    6 essentially decided that this separate armed force,

    7 this VRS, was still under the overall control of

    8 Yugoslavia and that there were such links between the

    9 Yugoslav armed forces and the Republika Srpska armed

    10 forces that we could establish this overall control

    11 test and have an international armed conflict.

    12 We don't have precisely the same situation

    13 here. What we have is a different history, for

    14 starters, because, of course, Croatia didn't attempt to

    15 develop its own armed forces before, or at least not

    16 much before, it became or purported to become an

    17 independent state. So we don't have the equivalent of

    18 the JNA in Croatia as the Croatian armed forces. What

    19 we've got is the development of the HV which presumably

    20 is created roughly about the same time Croatia becomes

    21 an independent state.

    22 Shortly thereafter, we have the creation of

    23 Herceg-Bosna and we have Herceg-Bosna purporting to

    24 create its own armed forces, the HVO. We don't have

    25 this long history for the Croatian armed forces, but

  33. 1 our submission is that there are very strong links

    2 between the two armed forces, that what we've got are,

    3 first of all, the existence of an integrated command

    4 structure which applies to the HVO and the HV both. In

    5 the particular exhibit referred to in the judgement,

    6 there is, of course, an indication that that applies

    7 to a particular period in 1992, but there's nothing

    8 that indicates it ever changes. In fact, it depends, I

    9 suppose, on what reading one gives to a variety of

    10 these documents.

    11 Our submission is you've got a joint command

    12 structure; you've got a lot of officers from the HV

    13 going to the HVO, in fact, manning a number of senior

    14 positions in the command structure; you've got the

    15 salaries of these officers continuing to be paid by the

    16 HV; we've got people moving back and forth between the

    17 two forces as if you, in fact, have a single armed

    18 force. They're moving back and forth and continuing to

    19 progress upwards in their careers.

    20 Essentially, it's our submission that not

    21 withstanding the fact there is not this prior history,

    22 as there could only be with the JNA, where the JNA

    23 splits up, what you've got here is essentially the

    24 creation of a combined structure over which Croatian

    25 military officers exercise substantial control. Armed

  34. 1 forces, we can refer to it perhaps as some form of

    2 financial assistance, but armed forces are not in the

    3 habit of sending their officers on duty and continuing

    4 to be paid by them to fight other people's wars. They

    5 go to fight the wars of the country which employs them

    6 in the first place, and that country in this case is

    7 clearly Croatia.

    8 That's the fundamental way in which, it would

    9 be submitted by the Prosecution, Croatia exercises

    10 control over the HVO, and we submit that that, in fact,

    11 is sufficient, Your Honour.

    12 Now, I don't know if there are particular

    13 other points that you'd like referred to in connection

    14 with the overall control test. If we -- well, perhaps

    15 if I might conclude in connection with the overall

    16 control. Once again, as I move back to the beginning

    17 of my oral -- our oral submission, the point is that if

    18 there's overall control for part of the HV -- excuse

    19 me, the HVO, there's overall control for all of the

    20 HVO. This is not something where we've got bits and

    21 pieces, and there is enough evidence before -- or there

    22 was enough evidence before the Trial Chamber to

    23 establish this high degree of both military control by

    24 the HV over the HVO, because of the continued movement

    25 of officers, the integrated command structure, the

  35. 1 continued payment of a large number of people, and a

    2 variety of other things that are mentioned in the brief

    3 of the Prosecution, and there is also this high degree

    4 of political control evidenced by the ability of then

    5 President Tudjman to remove Mate Boban, in particular,

    6 from the senior position in Herceg-Bosna.

    7 Now, if one accepts that this overall control

    8 test has been successfully met, then whether or not

    9 there is an armed conflict going on between Croatian

    10 troops as such, the HV and the ABiH, the army of

    11 Bosnia, we still have an international armed conflict

    12 because Croatia exercises -- provided you've got an

    13 armed conflict between Bosnia and the Bosnian Croats,

    14 if the Croats exercise overall control over

    15 Herceg-Bosna, then you've got an international armed

    16 conflict. To have an international armed conflict, we

    17 don't need to have fighting between the HV and the

    18 ABiH.

    19 The second question posed by the Trial

    20 Chamber in trying to determine whether or not the

    21 victims were protected persons is, in fact, if we take

    22 it as established that what we have is an international

    23 armed conflict in being between Croatia and Bosnia,

    24 then is the victim group, in this particular case,

    25 entitled protected persons status under Article 2 of

  36. 1 the Geneva Conventions -- excuse me, under -- well,

    2 yes, entitled protected person status under Article 2

    3 of our Statute.

    4 Now, under the Geneva Conventions, first of

    5 all, the victim group here is a group of Bosnian Muslim

    6 civilian detainees. The only possible Geneva

    7 Convention that they could have protected persons

    8 status under is the Fourth Geneva Convention which is

    9 concerned with the protection of civilian persons. If

    10 they are to be protected persons under the Fourth

    11 Convention, then Article 4 of the Fourth Convention

    12 defines protected persons, in part, as those who are

    13 "in the hands of a party to the conflict or occupying

    14 power of which they are not nationals."

    15 Now, what happened in this particular case is

    16 the Trial Chamber said, "Well, what we've got are

    17 Bosnian Muslim civilian detainees who have got Bosnian

    18 nationality, who are in a camp controlled by Bosnian

    19 Croats who may or may" -- some of them may or may not

    20 have Croatian citizenship because of Croatian

    21 legislation, but certainly it was not proved in court

    22 that they were Croatian citizens. The Court then

    23 concluded, "Well, you have Bosnians in the hands of

    24 Bosnians and, therefore, they were not protected

    25 persons, the victims were not protected persons."

  37. 1 JUDGE MAY: At first blush, an attractive

    2 proposition.

    3 MR. FENRICK: Yes, but not at second blush,

    4 Your Honour.

    5 JUDGE MAY: Okay.

    6 MR. FENRICK: Because if the first threshold

    7 has been crossed and what you have is an international

    8 armed conflict -- if there is no international armed

    9 conflict, this argument doesn't work, but if there is

    10 an international armed conflict, then what happens is

    11 you've only got two parties to the international armed

    12 conflict, two things that are states. On the one side,

    13 what you've got is Bosnia; on the other side, what

    14 you've got is Croatia. You don't have a Bosnian Croat

    15 entity. That Bosnian Croat entity, whatever it is, is

    16 assimilated to or linked under or scooped up with

    17 Croatia. And notwithstanding the fact that,

    18 technically speaking, you may have the victim group in

    19 the hands of people who could be regarded as Bosnian

    20 Croats, when you interpret the Geneva Conventions even

    21 in the strictest sense, it would be our submission that

    22 those particular victims are in the hands of Croatia

    23 and couldn't possibly be in the hands of anybody else.

    24 There are two choices, and the two choices

    25 are Bosnia and Croatia, and they certainly aren't in

  38. 1 the hands of Bosnia. Bosnia didn't put them in the

    2 detention facility. Bosnia didn't control their

    3 conditions of contention. Bosnia didn't decide that

    4 they were going to be released. The only state that's

    5 there, and it is a state, must be a state that's

    6 responsible for these people in detention, the only

    7 possible state is Croatia.

    8 So if we get over the overall control test,

    9 then the victims here are in the hands of a party to

    10 the conflict or occupying power, and that is Croatia,

    11 of which they are not nationals.

    12 It's submitted, although, frankly, it's not

    13 necessary to establish the protected person's status in

    14 this case, that if one has regard to the Tadic Appeals

    15 Chamber decision, they, in fact, tended to adopt a

    16 broader scope or a broader application of Article 4 of

    17 the Geneva Conventions, and they talked in terms of

    18 sort of ethnic allegiance, and they were talking in

    19 terms of, say -- well, for example, if you have, and

    20 this is not what we have here, but if what you had was

    21 a camp where you had the Bosnian authorities having

    22 Bosnian Croats in custody, the fact that the Bosnian

    23 Croats may have some allegiance to Croatia may also

    24 entitle them to protected people status, but that's not

    25 what we've got here.

  39. 1 What we've got is in the hands of a party to

    2 the conflict or occupying power, the only possible

    3 party to the conflict or occupying power, if the

    4 overall control test applies, that is Croatia, and that

    5 meets the criteria for protected persons.

    6 JUDGE MAY: So that's the way you put it in

    7 this case. You're not going to rely on the Tadic

    8 argument. Yours is a more straightforward one, if I

    9 may say so.

    10 MR. FENRICK: Oh, yes. Yes. In fact, the

    11 Tadic argument is, strictly speaking, not relevant

    12 here, Your Honours. The only way in which it fits in,

    13 after a fashion, is to counter an argument by the

    14 Defence that this is some form of unequal application

    15 of the law, that perhaps you might find yourself in a

    16 situation where we've got Bosnian Muslims detained by

    17 Bosnian Croats and applying a stricter interpretation.

    18 Those Bosnian Muslims would be regarded as protected

    19 persons, but you flip it around and you have Bosnian

    20 Croats in the hands of Bosnian Muslims, and then the

    21 Bosnian Croats wouldn't be protected persons.

    22 Now, that may be an end result if you apply

    23 the Geneva Conventions in a strict sense. If you adopt

    24 the Tadic approach that's not the result. Both groups

    25 are treated absolutely equally under the law.

  40. 1 That, in substance, addresses the particular

    2 arguments that I was intending to make in this

    3 submission, Your Honours. We, of course, as a matter

    4 of remedies, would suggest that the criminal

    5 liability -- if one establishes this overall control

    6 test applies and the victims are protected persons,

    7 it's our submission that the criminal liability of the

    8 appellant on Counts 8 and 9 can be determined by the

    9 Appeals Chamber on the basis of the established factual

    10 findings of the Trial Chamber, and there's no need to

    11 refer the case back to the Trial Chamber for a

    12 redetermination of those counts.

    13 We would also submit, however, that if this

    14 is what is -- what your decision turns out to be, that

    15 of course for a matter of sentencing, the case should

    16 be sent back -- on these counts should be sent back to

    17 the Trial Chamber.

    18 That is the end of my submissions, Your

    19 Honour. I'm available for questions.

    20 JUDGE MAY: It may be more convenient to deal

    21 with this question of sentence when we're dealing with

    22 the overall sentence question, but, Mr. Fenrick, of

    23 course, we haven't decided anything yet, but it may be

    24 convenient to have your submissions were we to be with

    25 you on reversing this verdict.

  41. 1 Do you submit that it is necessary that the

    2 matter goes back to a Trial Chamber for re-sentencing,

    3 or we can deal with it? Again, I merely ask you

    4 because I want to know what your procedural submissions

    5 are.

    6 MR. FENRICK: Our recollection, Your Honours,

    7 is that in the Tadic case it, in fact, did go back.

    8 JUDGE MAY: That is correct. It happened in

    9 Tadic, but in fact, it was at the submission of both

    10 parties that that should happen.

    11 It's now time for the adjournment. You may

    12 like to consider this. Is there any reason, you say,

    13 why we shouldn't deal with the matter ourselves?

    14 MR. FENRICK: If I may have --

    15 JUDGE MAY: Think about it.

    16 MR. FENRICK: Yes. We will adjourn now.

    17 Mr. Aleksovski, you are now under the

    18 authority of the Court. You are free to go during this

    19 adjournment, but would you please make sure you're back

    20 here in good time for half past 11, and the same

    21 will apply in the later adjournment.

    22 Very well. Half past 11.

    23 --- Recess taken at 11.02 a.m.

    24 --- On resuming at 11.30 a.m.

    25 JUDGE MAY: Mr. Fenrick, if you have an

  42. 1 answer to the question I asked, and then Judge Robinson

    2 has a point.

    3 MR. FENRICK: Very briefly, Your Honours. It

    4 would be our submission that unquestionably Your

    5 Honours have the authority to impose the sentence. We

    6 would suggest or submit that the issue be remitted back

    7 to the Trial Chamber so that the accused would have a

    8 right of appeal.

    9 JUDGE MAY: If, on the other hand, there was

    10 no increase in the sentence as a result of any sentence

    11 we might pass, then of course that would not be a

    12 point.

    13 MR. FENRICK: That's correct, Your Honour.

    14 JUDGE MAY: If it were a concurrent

    15 sentence.

    16 MR. FENRICK: Yes, Your Honour.

    17 JUDGE MAY: Thank you very much.

    18 Judge Robinson.

    19 JUDGE ROBINSON: Mr. Fenrick, you are relying

    20 on the overall control test, but as I understand it,

    21 you're not suggesting that this Chamber should visit

    22 this matter afresh. You didn't, however, deal with the

    23 question whether this Chamber is bound to follow the

    24 decision of the Appeals Chamber on that matter. That's

    25 the stare decisis issue or the precedent issue, or more

  43. 1 generally, simply just the question whether the Appeals

    2 Chamber is bound to follow a previous decision.

    3 MR. FENRICK: If I might, Your Honour, in

    4 brief, recapitulate what's submitted in some of our

    5 briefs, and we don't argue that the Appeals Chamber is

    6 bound by a rule of stare decisis to apply its own prior

    7 decisions. Our submission would be that the Appeals

    8 Chamber should not depart from its own previous

    9 decisions unless it concludes that a prior decision was

    10 clearly erroneous and cannot stand.

    11 If at the time of the prior decision the law

    12 was uncertain, which may well have been the case in

    13 this particular instance, and it was open to different

    14 Judges to take a different view of the matter, the view

    15 that was taken by the Appeals Chamber in the prior

    16 decision should subsequently be accepted as the settled

    17 law. Departure from that decision might be justified,

    18 if it is plainly inconsistent, with settled legal

    19 principles if it was given per in curiam or other

    20 justifiable circumstances. However, the Prosecution

    21 submits it should certainly not be the general practice

    22 of the Tribunal to allow parties simply to relitigate

    23 matters which have already been settled in a previous

    24 decision of the Appeals Chamber.

    25 Here, we've got a decision in favour of the

  44. 1 overall control test, admittedly to -- and it was

    2 applied to a different conflict, but we would submit

    3 that in this particular case, Your Honours should also

    4 adopt the overall control test.

    5 JUDGE ROBINSON: The position, as you have

    6 enunciated it, is generally the position followed in

    7 most common law countries. As I understand it, that's

    8 not the position followed in civil law countries. Why

    9 do you say that the Chamber, the Tribunal, should

    10 follow that particular approach?

    11 MR. FENRICK: Your Honour, certainly civil

    12 law countries don't adopt a rule of stare decisis or

    13 they don't use the expression, but it would be the

    14 submission of the Prosecution that, as a matter of

    15 simple judicial economy, most tribunals in most

    16 countries would be reluctant to review issues which

    17 they have already looked at in some detail in the

    18 past.

    19 JUDGE ROBINSON: Thank you.

    20 JUDGE MAY: Thank you, Mr. Fenrick.

    21 MR. FARRELL: Your Honours, I'll be

    22 addressing the second ground on behalf of the

    23 Prosecution which is the failure of the Trial Chamber

    24 to convict for the mistreatment which occurred outside

    25 the prison. That's not the trench-digging or the human

  45. 1 shields. I'll also address the sentence appeal and

    2 hopefully address your questions, Your Honour, on the

    3 facts as found by the Trial Chamber.

    4 Regarding Ground 2, the liability under 7(1),

    5 direct participation, as they call it, for mistreatment

    6 outside the prison, the general position of the

    7 Prosecution is fairly straightforward and is set out in

    8 our brief. The Trial Chamber erred, in our submission,

    9 in finding that the accused was not liable for the

    10 mistreatment outside the prison carried on by the

    11 soldiers; that the Trial Chamber erred in its

    12 application of 7(1), and I'll specifically refer to the

    13 fact that they make reference to the necessity of

    14 direct participation; and, thirdly, that if you look at

    15 the facts as found by the Trial Chamber both with

    16 respect to the mental element and the act element, it's

    17 our submission that there can be no other conclusion,

    18 no other reasonable conclusion than he should have been

    19 convicted.

    20 I know it's clear to Your Honours, but there

    21 were three categories of conduct that were placed

    22 before the Trial Chamber which they addressed. The

    23 first was in relation to the human shields, that they

    24 were released from the prison through the assistance,

    25 by aiding and abetting by the appellant, for the use as

  46. 1 human shields. The second was that they were released

    2 with the assistance of the appellant as an aider and

    3 abettor for the use as trench-diggers. The third basis

    4 which was addressed by the Trial Chamber, and it's the

    5 submission of the Prosecution that they should have

    6 found him guilty, is the mistreatment of the detainees

    7 for the abuse they suffered, that is, the physical

    8 abuse once they were outside of the prison.

    9 The focus, in our submission, is on at least

    10 apparently the actus reus. In paragraph 130 of the

    11 Trial Chamber's determination, they found that "It was

    12 not proved, however" -- I'm quoting: "It was not

    13 proved, however, that the accused participated directly

    14 in the mistreatment meted out to prisoners there,"

    15 meaning outside during the time that they were

    16 trench-digging and they were human shields. It

    17 appears, therefore, that there is a lack of the act

    18 element, in other words, there wasn't the

    19 participation.

    20 It's respectfully submitted that the Trial

    21 Chamber was in error in that the actual facts that they

    22 found for both trench-digging and human shields, the

    23 act element, that is, is exactly the same, and that's

    24 the release of the detainees. The question of whether

    25 he knew they were being used for abuse, that's the

  47. 1 secondary intent element, and that's found by the Trial

    2 Chamber. They find that he could not have been unaware

    3 that they were abused when they were returned

    4 recurringly.

    5 This isn't a case, in my submission, where

    6 they are released for a particular purpose,

    7 trench-digging or human shields, and while they're out

    8 there, randomly, unbeknownst to the appellant, they are

    9 beaten. This is a case where the Trial Chamber finds

    10 that on a recurring basis they are brought back and

    11 he's fully aware of the fact that they are beaten, and

    12 it's part of the process through which they are taken

    13 out.

    14 When you consider that they find that he has

    15 the mens rea or the mental element, we then go to the

    16 relevant findings of their findings with respect to the

    17 act element or the actus reus. In the Prosecution's

    18 submission, the actus reus for human shields and for

    19 trench-digging is actually the same for the beating.

    20 The actus reus is the encouragement, assistance for the

    21 aspect of their release with the knowledge that they

    22 are being released and that this is taking place.

    23 If you look at the facts found for the act

    24 element for human shields and trench-digging, you have

    25 his participation in the release, the designation and

  48. 1 the selection sometimes when he's present, and he's

    2 almost always present upon their return to make sure

    3 that they return back.

    4 There's the recurring nature of the crimes,

    5 all three. The evidence is clear that the

    6 trench-digging is on a recurring basis. The witnesses

    7 testify that happens almost on a daily basis, the

    8 sending out for trench-digging, and they find that

    9 there were two occasions when the detainees were used

    10 for human shields.

    11 In fact, if you look at it in terms of the

    12 act element with respect to the human shields, the

    13 Trial Chamber finds, despite the Defence's position

    14 that the accused had no involvement in the human

    15 shields and had no knowledge in the human shields, if

    16 you recall the Defence position at trial, the Defence

    17 position with respect to the human shields issue was

    18 that they were not being used for human shields, or he

    19 didn't know they were being used for human shields. He

    20 acknowledges that they were released but not for human

    21 shields. The Trial Chamber finds that the act element

    22 is committed, just like trench-digging, by the

    23 release. That provides the assistance in that he could

    24 have taken action which might have prevented it.

    25 What they find for human shields, despite his

  49. 1 denial of knowledge, is that in fact he must have known

    2 with respect to the incidents because of the acts of

    3 which he was aware, the conduct, the return. With

    4 respect, the human shields as found by the Trial

    5 Chamber was only on two occasions. The mistreatment

    6 outside the prison was a recurring event, according to

    7 the testimony of the witnesses, which appears to be

    8 accepted by the Trial Chamber, on a regular basis every

    9 time they went out, and the witnesses testified that

    10 they went out almost every single day.

    11 So if you accept the act element for the

    12 purposes of human shields, the offence of human shields

    13 for outrages upon personal dignity, it naturally

    14 follows that you must find that the act element is the

    15 same with respect to the mistreatment.

    16 It appears, and it's not clear, but it

    17 appears that the Trial Chamber takes the position that

    18 since he wasn't directly participating in the issue

    19 regarding the mistreatment, he can't be found guilty.

    20 Now, with respect, it's unclear what the Trial Chamber

    21 means. If what they mean by "direct participation" is

    22 a form of principal or perpetrator, in other words, he

    23 didn't plan the beatings, they were something that took

    24 place outside of the prison after they left; he didn't

    25 order the beatings because the Trial Chamber finds that

  50. 1 he has no control over the HVO soldiers, accepting that

    2 to be factually accepted by the Trial Chamber, direct

    3 participation in those forms is not the allegation that

    4 he should have been found guilty for, it's aiding and

    5 abetting.

    6 If, by what the Trial Chamber said is direct

    7 participation, if what they mean is 7(1) liability, in

    8 other words, it's just the way it's phrased --

    9 THE INTERPRETER: Could counsel slow down,

    10 please.

    11 JUDGE HUNT: You're being asked to slow

    12 down.

    13 MR. FARRELL: Thank you, Your Honour. My

    14 apologies to those who have to keep up.

    15 With respect to the second aspect of it,

    16 being if direct participation -- if the Trial Chamber

    17 means by "direct participation" 7(1) liability, if they

    18 mean that, then, with respect, they are in error

    19 because the facts that they find which are that he has

    20 the knowledge clearly and his acts, as in

    21 trench-digging and in human shields, facilitate the

    22 release, then there can be no other conclusion that he

    23 had the mens rea and the actus reus, the act and mental

    24 element, for the offence of mistreatment outside the

    25 prison and should have been convicted for outrages upon

  51. 1 personal dignity for this category of conduct.

    2 That, in summary, is the position.

    3 JUDGE HUNT: I wonder if you can help me with

    4 this: There has to be a finding by the Trial Chamber

    5 of the mistreatment, and apart from the reference in

    6 paragraph 128 about "... he would have seen the marks

    7 of repeated abuse which was clearly visible on the

    8 prisoners upon their return ..." I cannot find any

    9 finding as to what that mistreatment was.

    10 MR. FARRELL: That's a fair enough question,

    11 Your Honour.

    12 JUDGE HUNT: Well, you see, there was a

    13 fundamental problem at the trial as to the way in which

    14 it was pleaded that you had an ambiguous statement as

    15 to whether you were relying upon beatings inside and

    16 outside or one or the other. The Trial Chamber, as

    17 you've pointed out, in fact, acknowledged that you were

    18 making an allegation of mistreatment outside the

    19 prison, but it's not clear from any finding they make

    20 and it's not clear from the indictment what the

    21 mistreatment was. You said that they have obviously

    22 accepted the testimony of some witnesses. We don't

    23 have that testimony here.

    24 MR. FARRELL: That's true, Your Honour.

    25 Just in response. There was a conclusive

  52. 1 finding in the judgement, as you've indicated, that

    2 abuse took place outside the prison. There are

    3 references, and I'll give you the paragraph numbers, if

    4 I may. Paragraphs 116 and 117 of the judgement do not

    5 deal specifically with the abuse that took place

    6 outside the prison but it refers to the position of the

    7 Defence which is that there were exhibits submitted,

    8 116 and 117 refer to Exhibit 22, I think it is.

    9 Exhibit 22 is the Defence Exhibit put forward to say

    10 that the appellant submitted a report to the

    11 authorities with respect to two killings that took

    12 place outside the prison. Now, my understanding from

    13 looking at the evidence is those killings took place on

    14 February the 7th, it's in the first period of

    15 detention. The Trial Chamber doesn't appear to

    16 distinguish which period he's speaking about in the

    17 passage you referred to, Your Honour.

    18 If it's found, and it's submitted that it is

    19 found, that these individuals were killed while they

    20 were out on trench-digging duty on February the 7th,

    21 the accused was found by -- the appellant was found by

    22 the Trial Chamber to have taken over responsibility, I

    23 think it is, January 23rd, and the testimony accepted

    24 by the Trial Chamber is that the abuse took place over

    25 a considerable period of time and was reoccurring. One

  53. 1 can assume that the period of detention of the first

    2 period, which I understand went from January 23rd to

    3 February the 8th, that there was the sending them out

    4 for trench-digging during this period of time as a

    5 recurring basis. On that basis, he must have known

    6 that there was abuse taking place.

    7 My understanding from the exhibit, I stand to

    8 be corrected because I was trying to sort this out, is

    9 that the killings took place on February 7th, the day

    10 before the ultimate release of the detainees on

    11 February the 8th. So at that point in time, it would

    12 be the Prosecution's submission that certainly if there

    13 is knowledge found that they're recurring during this

    14 period and trench-digging does take place, then he

    15 certainly has at that point in time knowledge of one

    16 act which, we would submit, would constitute the aiding

    17 and abetting.

    18 Secondly, I'll refer you to paragraph 128

    19 that you've referred to, Your Honour.

    20 JUDGE HUNT: That obviously refers to

    21 something more than killings; that refers to physical

    22 abuse to the prisoners which would have been clearly

    23 visible.

    24 MR. FARRELL: That's correct. Thank you.

    25 JUDGE HUNT: There seems to be no findings in

  54. 1 the circumstances or anything like that.

    2 MR. FARRELL: If I just may refer to a few

    3 other matters, Your Honour. There is -- once again,

    4 it's not of great assistance, Your Honour, but under

    5 paragraph 224, once again, it's just a general finding,

    6 Your Honour, not a specific finding, and it's a short

    7 summary by the Trial Chamber of the evidence in

    8 relation to which this appellant can be found liable

    9 for. The sentence simply states, and I'm into the

    10 third sentence -- the third line down: "The state in

    11 which some of the detainees returned from digging

    12 trenches ..." So once again, Your Honour, that's the

    13 extent of the finding.

    14 If I may, the Prosecution relies on -- there

    15 were at least five witnesses, and I'll just read them

    16 into the record, if I may. Witness M, the transcript

    17 reference is 1431 to 1449, 1457 to 1462, and 1470 to

    18 1481. Second witness is Witness L, 1378 to 1399.

    19 Third witness is witness O, 1576 to 1586. The fourth

    20 witness is

    21 Witness H, a transcript reference, 914 to 926. And the

    22 fifth is Witness B, transcript reference page 573 and

    23 pages 581 to 588.

    24 Most of these reference were attached to the

    25 closing brief in the annexes by the Prosecution, and in

  55. 1 light -- and these witnesses speak of the abuse that

    2 took place during the time that they were out in the

    3 field doing trench digging.

    4 In light of the two very specific findings in

    5 paragraph 128 and paragraph 224 that the appellant must

    6 have known and that there was repeated abuse, the

    7 Prosecution would rely on the statements of these

    8 witnesses, which is uncontradicted and, in the

    9 Prosecution's submissions, by inference accepted by the

    10 Trial Chamber as being correct in light of their

    11 findings.

    12 JUDGE HUNT: Do you understand that the

    13 Prosecution is seeking to make the accused or the

    14 appellant, as he now is, liable for the acts of

    15 others. Then, of course, the Prosecution asks the

    16 Chamber to impose a sentence in relation to that. We

    17 have to know what those acts are, and so far as I can

    18 see from the judgement, they are stated in the most

    19 general of terms.

    20 MR. FARRELL: I can't dispute that, Your

    21 Honour. I can take it to its highest and indicate that

    22 in light of the fact that there was no contrary

    23 findings, all the testimony of the witnesses regarding

    24 the abuse was found by the Trial Chamber. All the

    25 testimony that we've referred to in those five

  56. 1 witnesses and others appears to be the basis upon the

    2 finding.

    3 And the fact that the Trial Chamber -- I

    4 understand the predicament the Appeals Chamber is in,

    5 Your Honour, but the fact that the Trial Chamber makes

    6 findings of fact and then -- general findings of fact

    7 in respect of the abuse and concludes at that it's

    8 unnecessary to go into it because they find that he

    9 wasn't directly participating in the form that they

    10 find, shouldn't necessarily go to the detriment of the

    11 Prosecution when the Trial Chamber is in error, an in

    12 light of their general findings, we would submit that

    13 the evidence put forward in relation to the abuse has

    14 been accepted by the Trial Chamber and, therefore, is

    15 basis upon which we would submit that the finding of

    16 guilt should be made and the facts in relation to that

    17 should be relied on for sentence, but that's the

    18 highest I can put it, Your Honour. I appreciate your

    19 concern.

    20 JUDGE HUNT: Thank you.

    21 MR. FARRELL: Thank you. That being the

    22 case, those are essentially the submissions that I

    23 wanted to add in relation to the second ground of

    24 appeal. Subject to any other questions, I'll move on

    25 to the sentence.

  57. 1 JUDGE MAY: Yes. Mr. Farrell, you can

    2 assist, at the outset, by ensuring that there is no

    3 dispute, and we have to be clear as to the what the

    4 accused is to be sentenced for and what the findings of

    5 the Trial Chamber were. It may be of assistance if I

    6 summarise the position as I understand it.

    7 Dealing with the liability under

    8 Article 7(1), the Trial Chamber found the accused

    9 guilty of aiding and abetting mistreatment. I'm using

    10 this in a general sense rather than a technical sense,

    11 because of course it's the effect we want of the

    12 crimes, the effect of them generally, not particularly

    13 their legal classification at this stage, which we need

    14 to consider. Aiding and abetting the mistreatment of

    15 several detainees during body searches on the 15th and

    16 16th of April, and that included insults, threats,

    17 thefts, and assaults upon them.

    18 Next, ordering or instigating and abetting

    19 violence on two witnesses, L and M, when the accused

    20 was present, and ordered the guards to continue. And

    21 M's injuries included his fainting as a result of his

    22 being beaten; traces of blood in his urine; and was

    23 said, at the time of the trial, to still be suffering

    24 from back and chest pain.

    25 The next allegation or the next matter that

  58. 1 was proved, rather, aiding and abetting the physical

    2 abuse of detainees. It was said to be frequent, day

    3 and night, near the appellant's office, but he did not

    4 stop it. And there were various injuries sustained by

    5 detainees, serious spinal injuries and a broken nose.

    6 There was psychological abuse, threats, direct threats

    7 to them.

    8 Next, and you can help me as to whether this

    9 is correctly defined, aiding and abetting the

    10 mistreatment of detainees during interrogations. This

    11 involved a number of detainees. I don't think the

    12 number was specified, but they were detainees who had

    13 escaped and were interrogated by the accused.

    14 Next dealing with the acts outside the

    15 prison, in which the accused was found guilty of aiding

    16 and abetting the use of detainees as human shields and

    17 for trench digging. This is by taking part in

    18 designating the detainees for trench digging, not

    19 preventing the HVO soldiers coming to get the detainees

    20 and participating in picking them out, and being

    21 present when detainees were taken to serve as human

    22 shields and thereby showing his approval of the

    23 practice.

    24 Under Article 7(3), he was found to be liable

    25 as superior -- that is, the warden of the prison -- for

  59. 1 the crimes committed by the guards in the prison,

    2 because he took no measures to prevent the crimes being

    3 committed.

    4 Now, that is a summary of the matters for

    5 which he was sentenced, as I understand it, and for

    6 which we have to reconsider the sentence according to

    7 your appeal. Now, if there are any other matters which

    8 fall to be considered following the judgement, then

    9 we'll hear from you.

    10 MR. FARRELL: In relation to the facts that

    11 you've set out, I've gone through the list of

    12 everything that I've noted and, in fact, you've

    13 identified everything. There is only one reference in

    14 addition. It's not that serious. It's just the

    15 psychological violence. You mentioned it already.

    16 It's just one of the categories of conduct in that the

    17 Trial Chamber found that there was, on occasion, a

    18 number of times where the accused, as obviously an

    19 aider and abettor, permitted the recording of songs and

    20 the playing of screams over the loudspeaker of

    21 detainees as they were being beaten in the night.

    22 That's just one element of psychological violence to

    23 the other detainees who had to listen to it.

    24 But other than that, in relation to both the

    25 7(1) and 7(3), Your Honour, I have nothing to add in

  60. 1 relation to the facts themselves as found by the Trial

    2 Chamber.

    3 JUDGE MAY: Yes. And, of course, it appears

    4 that it was not possible to quantify the number of

    5 detainees that were involved in a number of these

    6 matters, such as how many were affected by the crimes.

    7 This was a prison in which there were numerous crimes,

    8 the Trial Chamber finding that, for instance, the

    9 psychological abuse, the physical abuse, was going on

    10 day and night.

    11 MR. FARRELL: That's correct, and that would

    12 be our submission. As of an ongoing nature, the

    13 quantification is not done in a specific sense by the

    14 Trial Chamber.

    15 JUDGE MAY: Yes. Thank you. We'll hear your

    16 submissions.

    17 MR. FARRELL: Thank you, Your Honour.

    18 Essentially, I note, first of all, that the Prosecution

    19 put a fairly lengthy brief in on the issue of

    20 sentencing. It's not my intention in anyway to restate

    21 that.

    22 I would note at the outset, though, that it

    23 doesn't appear in the response by the appellant accused

    24 that he addresses the issue of sentencing in his

    25 response brief. He simply indicates that obviously he

  61. 1 opposes the Prosecution's position, and he takes the

    2 alternative position that since he's obviously

    3 appealing and seeking a remedy of acquittal, that the

    4 appellant shouldn't have been sentenced in any event.

    5 In light of that, it's unclear what issues

    6 are in dispute in relation to the Prosecution's

    7 submissions by the Defence, except for all of them. In

    8 that regard, if there's anything that's raised just as

    9 a procedural matter during my colleague's reply,

    10 counsel for the appellant, I may note that it may be

    11 addressed in our reply, but --

    12 JUDGE MAY: Mr. Farrell, would it be simplest

    13 to hear what the --

    14 MR. FARRELL: That's fine with me.

    15 JUDGE MAY: -- what the appellant has to say

    16 on these matters? We have, as you rightly say, your

    17 written submissions. Unless there's anything in

    18 particular you want to refer to, it may be more

    19 convenient to deal with it in that way and, of course,

    20 you could rely.

    21 MR. FARRELL: There are only two issues, Your

    22 Honour, and I'll just note them. The first is that

    23 Prosecution wanted to apprise you of the fact that the

    24 Prosecution has taken the position in three matters

    25 which are coming before the Appeals Chamber, this case

  62. 1 obviously, the case of Furundzija, and the case of

    2 Celebici, on the importance of establishing some

    3 principles of sentencing in relation to the Appeals

    4 Chamber.

    5 In all three briefs, similar submissions have

    6 been made and we will be making similar submissions

    7 with respect to the principles that are set out in the

    8 brief. So simply to inform you that this position of

    9 the necessity for specific sentencing principles is

    10 something that the Prosecution will be submitting in

    11 other matters. Of course, we're not asking that this

    12 Appeals Chamber go outside of the scope of the appeal

    13 that's presently before you or the facts that are

    14 before you, but just that there's some sentencing

    15 principles which are particularly applicable to this

    16 case, and it's the Prosecution's submissions that the

    17 Trial Chamber erred in relation to the application of

    18 those principles, and that's set out in the brief.

    19 The second point I wanted to bring to your

    20 attention, and this has nothing to do with the quantum,

    21 of course, if there's anything in reply I'll address

    22 that then, but the second thing is that at the time the

    23 Prosecution filed its submissions, the Appeals

    24 Chamber's decision on the sentencing judgement in Tadic

    25 had not been released. As a result, there are simply

  63. 1 two issues that were raised in the Tadic decision that

    2 I wanted to take this moment to give you the

    3 Prosecution's position.

    4 In our brief, the Prosecution's brief

    5 presently before you in Aleksovski, we note the

    6 position in Furundzija and Celebici, that the paramount

    7 consideration or one of the strongest considerations on

    8 sentencing is deterrence, and the submissions are

    9 placed in the brief with respect to the significance of

    10 deterrence based primarily on our submission that the

    11 starting point of any sentence is the gravity of the

    12 offence.

    13 In the Tadic appeal judgement, you'll note

    14 that the Appeals Chamber dealt with this issue -- I

    15 don't have it in front of me, I'm sorry. In any event,

    16 the Appeals Chamber dealt with this issue, and in

    17 dealing with it, it found that deterrence should be not

    18 accorded undue prominence. In light of that, there

    19 seems to be a bit of a difference between our position

    20 on the appeal -- thank you to my colleagues. I'm

    21 sorry. Just for your reference, the discussion of the

    22 Appeals Chamber's judgement in the sentencing appeal in

    23 Tadic is paragraph 48.

    24 In that, the Appeals Chamber concludes that

    25 it does not dispute the relevance of deterrence or that

  64. 1 it's legitimate, but that it must not be accorded undue

    2 prominence in the overall assessment of the sentences

    3 to be imposed.

    4 Just to clarify then the Prosecution's

    5 position, first of all, the Prosecution's position is

    6 that the Tadic decision, though obviously making this

    7 general statement, didn't enunciate any further on the

    8 extent to which deterrence is to be taken into

    9 consideration and what weight it is to be given. It

    10 doesn't mean that the Prosecution is now asking for a

    11 rehearing of that issue. Undoubtedly an unfit sentence

    12 can't be justified by too much emphasis on deterrence,

    13 and clearly the elements that we submit in our brief

    14 are the gravity and the circumstances of the accused.

    15 That's the starting point, but the

    16 Prosecution would note, in consideration of the Tadic

    17 decision regarding deterrence, that the general

    18 principles that are used in sentencing, at least in the

    19 common-law jurisdictions of which I'm aware, include

    20 other forms of sentencing and other means, release, and

    21 escorted temporary absence pass, probation, and also

    22 take into consideration principles such as

    23 rehabilitation or reintegration into the community.

    24 It is the submission of the Prosecution in

    25 the brief that those factors, although obviously

  65. 1 relevant to the particular circumstances, the

    2 mitigating circumstances of the accused, are not that

    3 paramount before this Chamber.

    4 JUDGE MAY: No. It's an entirely different

    5 position from the domestic jurisdiction. Not only are

    6 there no powers, the matters are irrelevant.

    7 MR. FARRELL: Exactly. That's the point that

    8 the Prosecution wanted to make in relation to our

    9 submission on deterrence, that deterrence is, as a

    10 result of the objectives and purposes as found in the

    11 Tadic interlocutory decision, there's three purposes,

    12 and the second is to deter future violations. In light

    13 of the fact that other principles may not be

    14 particularly applicable, the Prosecution still stresses

    15 the importance of deterrence, though accepts the

    16 decision in Tadic which seems to say that it is not the

    17 sole or determining factor. Obviously, if undue

    18 prominence was the quality or characteristic to be

    19 given to the sentence, then this would mean imposing

    20 the highest sentence in every case regardless of the

    21 accused's personal circumstances.

    22 JUDGE MAY: The relevance is to look at the

    23 gravity of the conduct which has been found and

    24 determine the sentence. Clearly, retribution plays a

    25 part.

  66. 1 MR. FARRELL: There are a number of factors

    2 that are in their denunciation, as it may be called, in

    3 other systems and what are submitted in our brief. Of

    4 course, Your Honour, the educative and suppressive

    5 elements, the suppressive element is the actual

    6 deterrence, both specific deterrents with respect to

    7 this accused or the circumstances in which this accused

    8 found himself in and committed it, and general

    9 deterrence, which is to deter others who may be in like

    10 circumstances. And then what we submit in our brief to

    11 be the educative effect, which is the general revulsion

    12 of the International Community of this type of conduct

    13 and the necessity of indicating that this type of

    14 conduct is not acceptable.

    15 If I may, that leads to the second principle

    16 or finding in the Tadic appeal judgement that I just

    17 wanted to make a short submission on, if I may, and

    18 that's in relation to the determination of the role and

    19 the level of the commander in the broader conflict.

    20 Once again, the Tadic appeal judgement on sentencing

    21 refers to this at paragraphs 55 and 56 and concludes in

    22 paragraph 57 that the sentence should be reduced.

    23 The particular point that the Appeals Chamber

    24 appears to be making in this case is that you -- the

    25 Trial Chamber or in sentencing now as an Appeals

  67. 1 Chamber yourself, have to adequately consider the need

    2 for sentences to reflect the relevant significance of

    3 the role of the appellant in the broader context of the

    4 conflict. And then they find in the case of Mr. Tadic

    5 that his level in the command structure, when compared

    6 to that of his superiors, in this case they refer to

    7 commanders or the architects of the strategy of ethnic

    8 cleansing was low, and this was one of the basis upon

    9 which they -- one of the basis, I'm sorry, upon which

    10 they reduced his sentence.

    11 The Prosecution's submission in this regard

    12 is essentially twofold. First of all, in an effort to

    13 recognise the necessity of gradation of sentences, the

    14 necessity of having a distribution depending on

    15 liability, it is respectfully submitted that the

    16 Appeals Chamber should not lose sight of the gravity of

    17 the crime. Simply trying to fit the matter within a

    18 proportional equal distribution may result in a sentence

    19 which is not fit to the crime which was committed, and

    20 the obvious example which we place in our brief is that

    21 if one commander directly participates in the killing

    22 of ten individuals and another directly participates in

    23 the killing of a hundred or is involved in a much wider

    24 campaign, in the Prosecution's submission, at some

    25 point in time, you can't distinguish between certain

  68. 1 acts based on the level of the commander or the role.

    2 When the crime itself is so grave that if the

    3 commander is not at the highest level but has committed

    4 a number of crimes, then, in our submission, the

    5 sentence should reflect what would be the normal course

    6 in domestic jurisdiction that a murder is a murder, and

    7 that in this case, especially in terms of conflict, you

    8 can't diminish the value to the victim or the necessity

    9 of the gravity and deterrence of the sentence simply

    10 because there are other people who committed more than

    11 he has. That's inevitable in any armed conflict unless

    12 you're only going to prosecute the highest level.

    13 As well, it implies, of course, which is

    14 obvious, that the issue in relation to superior

    15 orders -- in other words, if you're going to diminish

    16 the sentence because the person was a bit less in terms

    17 of their role, this is one of the issues that goes

    18 under, just to take note of 7(3), command

    19 responsibility or, for example, superior orders where

    20 it's concluded that superior orders are no defence but

    21 may go on mitigation.

    22 When we're talking about the accused in this

    23 case, it's not a case of superior orders. The role in

    24 command as set out in Tadic, in our respectful

    25 submission, is not the issue here, and though the Trial

  69. 1 Chamber in our case refers to the role of

    2 Mr. Aleksovski vis-à-vis the others who he was

    3 initially indicted, Kordic, which you're fully aware

    4 of, and others, was of a minor role. We're not seeking

    5 his sentence to be changed because of his role

    6 vis-à-vis the others that he was placed on the same

    7 indictment with. He is a commander in his own right.

    8 The Trial Chamber's finding that he was merely a tool

    9 of the broader plan to ethnically cleanse the Lasva

    10 Valley is not the basis of our appeal per se.

    11 He was not merely a tool when he was the

    12 commander himself and was the top ranking official in

    13 the prison which resulted in the others being permitted

    14 to do it. So if you're going to apply this role and

    15 level of command in the broader conflict, it's

    16 respectfully submitted that you have to take it into

    17 consideration in relation to the specific circumstances

    18 that take place. In that case, he is the commander in

    19 that case, and anything that takes place in the prison

    20 is his responsibility under 7(3) and cannot be

    21 diminished by the fact that he doesn't play a greater

    22 role vis-à-vis the Lasva Valley ethnic cleansing.

    23 That's our position with respect to Tadic, that his

    24 relationship vis-à-vis others obviously can't diminish

    25 the gravity of the offence for which he committed.

  70. 1 The only other thing I'd note, just as a

    2 factual matter, the Trial Chamber finds that as a fact

    3 he had no role to play except for a limited role as an

    4 aider and abettor in human shields and trench-digging.

    5 This way he did facilitate the greater role but he was

    6 merely a tool.

    7 With respect, you'll note that the findings

    8 of fact by the Trial Chamber with respect to

    9 trench-digging specifically is not that he was merely a

    10 tool, and with respect, that was an error in the

    11 classification. The appellant clearly agreed with the

    12 trench-digging; in fact, his defence was that it was

    13 necessary and that all civilians of the area had to be

    14 involved in trench-digging, it was required by law, and

    15 that it was part of the defence at that point in time

    16 of the area under which the Bosnian Croats had

    17 control. So in that respect, he wasn't merely a tool,

    18 he was actually facilitating and was directly involved

    19 and approved of the use of detainees for

    20 trench-digging, despite the fact that he'd been told by

    21 the ECMM and the ICRC that it was contrary to

    22 international law, and this was for the purpose of

    23 something greater than just the scope under which he

    24 was the commander.

    25 JUDGE ROBINSON: You're not saying that we

  71. 1 shouldn't follow Tadic on that question. What you're

    2 saying is that the factual situation is different.

    3 MR. FARRELL: Yes, Your Honour. Without

    4 trying to in any way backtrack, the submission is that

    5 the Appeals Chamber or the sentencing chamber cannot

    6 give too much weight to this concept of the broader

    7 role and the greater conflict. If it diminishes the

    8 gravity of the offence with which the accused is

    9 convicted, in an effort to try and determine the proper

    10 gradation of sentence which is understood because of

    11 the level of culpability of the individual accused who

    12 will come before the Tribunal, one can't diminish, as

    13 in this case, very serious crimes, involved directly

    14 and as a 7(3) commander, very serious crimes in sending

    15 people out to risk and for aiding and abetting in human

    16 shields and trench-digging, and just claiming that he

    17 was --

    18 THE COURT REPORTER: Would you please slow

    19 down, Mr. Farrell.

    20 MR. FARRELL: I'm sorry. My apologies. I'll

    21 try and be a little slower as well for you, Judge

    22 Robinson. Thank you.

    23 In this regard, there's essentially two

    24 positions: One is that as a general principle, this

    25 can't outweigh the gravity of the crime, and the

  72. 1 Appeals Chamber or the Trial Chamber shouldn't attempt

    2 to reach some type of gradation when the seriousness of

    3 the offence certainly in and of itself would require a

    4 greater sentence; and then the application of that

    5 principle to this case is the second point which I made

    6 and which Your Honour has noted.

    7 The last thing, Your Honour, is simply that

    8 the submissions with respect to the quantum are in the

    9 brief. It's seven years. In relation to other matters

    10 of sentence, for example, the Ground 2, which is if you

    11 find him guilty of mistreatment, the position obviously

    12 is the same, with respect to the significance, if

    13 necessary, of an appeal by the accused or by the

    14 Prosecution, for that matter, if you determine that the

    15 sentence is to be changed.

    16 I would just finally note that in the Tadic

    17 decision, it was sent back to the -- there wasn't any

    18 determination by the Appeals Chamber as to what the

    19 appropriate sentence would have been. It was sent

    20 back, deferred back or remitted back to the Trial

    21 Chamber. We note in that case that when it did come up

    22 on appeal, the Appeals Chamber did find a separate

    23 sentence than was submitted to by the Trial Chamber.

    24 So in that case, it did indirectly justify the

    25 necessity of having the benefit of the Trial Chamber's

  73. 1 analysis of the sentence and the sentence which, as we

    2 know, was subsequently varied on appeal.

    3 Those are my submissions, subject to any

    4 questions. I thank you for your patience.

    5 JUDGE MAY: Thank you. Mr. Joka, we will

    6 hear you now in response to the Prosecution, if you'd

    7 like to deal with all three grounds of appeal.

    8 I should add that we've seen what you've

    9 written in response, of course. It's merely if there's

    10 anything you would like to add, particularly in

    11 relation to anything which has been said today.

    12 MR. JOKA: [Interpretation] Yes, thank you,

    13 Your Honours.

    14 We now have three points that are being

    15 mentioned: First, the protected persons grounds, and

    16 that is the question of whether there was the existence

    17 or not of an international armed conflict; that is to

    18 say, whether conditions existed which could be reviewed

    19 and the decision as to guilty or not guilty and the two

    20 points for which the appellant was acquitted; that is

    21 one question. The other one was the abuse of prisoners

    22 outside Kaonik camp. The third question or grounds is

    23 a balancing out or determination of sentence. So I'd

    24 like to say a few words on these points.

    25 Let me say at the outset, before I present

  74. 1 our own views with regard to protected persons and

    2 international conflicts, that I have perhaps not been

    3 understood. Some things that I have heard today are

    4 not quite clear to me, with all due respect to

    5 everything that my learned colleagues have stated so

    6 far. So either I did not understand them correctly or

    7 there is some lack of logic in what they have said.

    8 This, just by way of an introduction. We

    9 heard today in the arguments put forward, that is to

    10 say, the Tudjman-Boban relationship of 1996 was

    11 mentioned, for example; that is to say, something about

    12 which we have seen not a single piece of evidence and

    13 which is outside this court case in general. It was

    14 stated that overall control over a portion of the HVO

    15 means that there was overall control over the entire

    16 HVO. So this has been turned upside down, it appears

    17 to me, and that is not the way we should be looking at

    18 it. We cannot conclude from this little piece that

    19 overall control existed and go on to claim the bigger.

    20 We also heard mention of the political

    21 supervision of Tudjman/Boban. We're not dealing with

    22 politics here and that aspect of it. We also heard

    23 that Croatia was the occupying force and that it

    24 decided on the regime that held true in the prison and

    25 whether the prisoners should be released or not. This

  75. 1 is something that I'm hearing for the first time here

    2 today. I have seen no evidence or proof in the course

    3 of these proceedings as to anything of that kind, nor

    4 was it brought up against the accused.

    5 Finally, something that I feel to be

    6 particularly important is something that we had

    7 occasion to hear here today, that the Tadic case is

    8 irrelevant to this particular case, the Aleksovski

    9 trial. Now, if the Tadic case is irrelevant to these

    10 particular proceedings, how can we then keep referring

    11 to it, and what I'm going to say now applies to each of

    12 the individual points. We keep appealing, that is to

    13 say, the learned members of the Prosecution keep

    14 referring back to the Tadic case and they claim that

    15 the Trial Chamber erred, forgetting that the decision

    16 in the Tadic case was brought subsequently, after the

    17 first sentencing and judgement was made. So how could

    18 the Chamber err if something did not exist when it did

    19 its work?

    20 With your permission, I should like now to

    21 say a few words about the international conflict which,

    22 according to our tribunal, is the crux of the whole

    23 problem and the basic element upon which we built up

    24 our defence case with relation to points 8 and 9,

    25 Counts 8 and 9. It is a combination of fact and law.

  76. 1 First, I should like to stress that we cannot

    2 deliberate about Bosnia-Herzegovina as being a unified,

    3 united state and country. Bosnia is sort of a melting

    4 pot which brings together the passions of three nations

    5 in which territory has been divided and in which

    6 everybody is against everybody else, which brings us to

    7 the ultimate absurdity in the Cazinska Krajina region

    8 where the Muslims fought against the Muslims.

    9 I bring this up by way of illustration, and

    10 if we applied the standards brought up by the

    11 Prosecution, then that conflict too should be deemed to

    12 be an international conflict as well, I suppose.

    13 However, we're not discussing Bosnia now,

    14 we're discussing the Lasva River Valley, which is a

    15 more narrow territory. It is an enclave inhabited by

    16 Croats surrounded by Muslims. It is quite a different

    17 environment to the Cazinska Krajina region or the

    18 Croats in Posavina, so on and so forth. There are

    19 quite different interests there. It would be illusory

    20 even to imagine that people and the political

    21 leadership of this one enclave could have the idea that

    22 they would live in some other state, when de facto

    23 there was no possibility for this because they were

    24 living in an encirclement, they were living in the

    25 centre of a sort of melting pot from which they cannot

  77. 1 emerge.

    2 Furthermore, I should like to enumerate, just

    3 in the form of thesis, not to take too much of your

    4 time, what I wish to say; namely, we heard about the

    5 HVO units in the enclave. There has been not a single

    6 piece of evidence presented, no proof at all that in

    7 the Lasva River Valley the presence of HV units were

    8 determined.

    9 Furthermore, another question was raised

    10 previously and was brought up again today. The Bosnian

    11 Croats and Bosnian Muslims quite obviously are citizens

    12 of one and the same state, and there the provisions and

    13 laws are quite clear and apply to one and all. All of

    14 them are citizens of the same state, and if we add to

    15 this the fact that a portion, or more exactly point 2

    16 of the Fourth Geneva Convention which was not quoted,

    17 then this leads us on to another conclusion. My

    18 learned colleague quoted point 1 relating to protected

    19 persons, and in point 2, the following is stated:

    20 "We shall not consider persons to be

    21 protected persons for as long as the state of which

    22 they are citizens have regular diplomatic

    23 representations in the state in which the authorities

    24 prevail."

    25 So even if we were to leave behind the

  78. 1 criteria that they are citizens of one and the same

    2 state, in fact, we at the same time have the fact that

    3 between Bosnia-Herzegovina, there are permanent

    4 diplomatic relations and that there are diplomatic

    5 offices of Bosnia in Zagreb, for example. There, the

    6 provisions are quite clear, and I don't know whether we

    7 can understand it extensively.

    8 There is evidence which I cannot quote

    9 because of its status and which was point D, Exhibit

    10 29A and B and Exhibit D30 to D34, those exhibits which

    11 also speak along those lines.

    12 Finally, as we're discussing this unfortunate

    13 international conflict, a letter by the authorised

    14 representative of the Muslims in the United Nations,

    15 Mr. Sacirbey, who writes that in this concrete case,

    16 that is to say, in the Lasva River Valley, which is

    17 precisely the locality in which the events took place

    18 that we're discussing here today, that it was a

    19 conflict between local leaders, and I quote: "Conflict

    20 between local leaders in the Lasva River Valley," that

    21 is, D13, Exhibit D13. I should like you to bear in

    22 mind that that letter was written on the 21st of April,

    23 1993, and that is exactly five days after Ahmici.

    24 Ahmici, as far as I know, is the pivotal point, and

    25 several cases relate to that particular point. That is

  79. 1 what I wanted to say with respect to the international

    2 conflict. I say they are theses that I have put

    3 forward.

    4 Now, as far as the overall control test is

    5 concerned, if we said that it was used in the Tadic

    6 trial and we say that the Tadic trial is not relevant

    7 for our trial, for our case, why, then, should we

    8 deliberate it, because the situations are entirely

    9 different; that is, it is impossible to draw any

    10 parallel which we have done in tabula, we have shown

    11 this in tabula form --

    12 JUDGE ROBINSON: Mr. Joka, I think to be fair

    13 to the Prosecution, when they referred to the Tadic

    14 trial as not being relevant, it was in relation to a

    15 specific point. The specific point, as I remember it,

    16 was the question of allegiance on the basis of

    17 ethnicity. I don't think it was being said that the

    18 Tadic trial was not relevant in general terms.

    19 JUDGE MAY: In fact, what the Prosecution was

    20 saying was that the overall control test was the one

    21 which should be applied. So you can direct your

    22 submissions to that.

    23 MR. JOKA: [Interpretation] I shall take that

    24 into account and your cautions. I have misunderstood

    25 it then.

  80. 1 But as we're speaking about the overall

    2 control test, I can only reiterate that I consider that

    3 there are no conditions -- that the conditions do not

    4 exist for this overall control test to be applied for

    5 the simple reason that these are two diametrically

    6 opposite situations.

    7 I should like, with your permission, now to

    8 say two or three words about the abuse of prisoners

    9 outside Kaonik camp, unless you have some questions

    10 with regard to the first portion. Thank you.

    11 Well, we have these unfortunate human

    12 shields, this trench-digging, and the abuse of people

    13 on the ground. Actually, our position is essentially

    14 identical to the one taken up by the Trial Chamber, and

    15 that is that Zlatko Aleksovski, that is to say, that

    16 there is no evidence to show that Zlatko Aleksovski had

    17 effective control over HVO soldiers and members of the

    18 military police; that is to say, control over those

    19 individuals who took these people out of the camp and

    20 took them off, regardless of the fact that we can claim

    21 that it was their forced labour duty or assignment or

    22 anything like that, we can leave that aside for the

    23 moment. What I'm saying is that it has been

    24 objectively ascertained that he did not have the

    25 possibility of controlling those individuals.

  81. 1 The fact that the killing of two individuals

    2 took place and that he took certain steps, that shows

    3 something quite the opposite; that is to say, that when

    4 he had knowledge of the fact that something happened

    5 which should not have happened, he did, indeed,

    6 undertake something that was under his competence, and

    7 that is that he informed the investigating centre of

    8 the competent court of law and that he filed a criminal

    9 report. We know that from the facts as they stand; I

    10 need not repeat that. To deduce from this, as the

    11 Prosecution has been doing, that if he knew about this,

    12 he must necessarily have known about the abuse on the

    13 ground, I think is rather unsubstantiated and all the

    14 more so because evidence has not been provided from

    15 which we could ascertain the number of abused

    16 individuals, who these individuals were, and in what

    17 way they were abused.

    18 We listened to the testimony of people who

    19 were outside the camp and got different statements. I

    20 don't want to repeat them, but some people said they

    21 were kicked and some people said quite the reverse,

    22 that an HVO soldier had given them a jacket to keep

    23 them warm, or things like that. So this is a question

    24 of the evidence provided and the weight, weighing the

    25 evidence, putting it in the balance.

  82. 1 As far as the third ground is concerned, the

    2 circumstances in balancing out the sentence and

    3 determining sentence, with regard to the conduct for

    4 which he was found guilty, Your Honours, we did not

    5 intentionally wish to state our views because it is our

    6 position that the appellant should be acquitted, and we

    7 do not feel that it would be proper or morally in

    8 order, as is frequently the case, to plead this if he

    9 is pronounced guilty, that the following should be

    10 taken into consideration. We didn't do that on

    11 purpose.

    12 But I should like to say now that it is

    13 contrary to the legal standards adopted to pitch a

    14 sentence, always maintaining a higher upper-most

    15 maximum, if I have understood my learned colleagues

    16 correctly. A sentence or judgement cannot be a memento

    17 for other cases or a caution to others which are being

    18 tried so judiciously, and I think that this Trial

    19 Chamber will have, if it assesses that the sentence

    20 should be modified either up or down, some usual

    21 standards. Of course, we must discuss prevention,

    22 special prevention with respect to the perpetrator, or

    23 a deterrence, as it has been termed - general

    24 prevention, general deterrence and how it will affect

    25 potential perpetrators - but we must not forget

  83. 1 individualisation of sentences. You cannot have one in

    2 the same sentence for everyone.

    3 Well, that is all I have to say for the

    4 moment. Thank you. If there are any additional

    5 questions, I shall be happy to address them.

    6 JUDGE MAY: Thank you, Mr. Joka. We will now

    7 consider this matter, unless there's anything -- is

    8 there anything anybody wants to raise?

    9 MR. YAPA: There are a few matters which we

    10 would like to raise.

    11 JUDGE MAY: Very well.

    12 MR. FENRICK: Very briefly, Your Honour.

    13 In connection with the Prosecution's first

    14 ground of appeal, quite obviously the Tadic appeal

    15 decision was issued after the Aleksovski trial

    16 decision; however, it's the submission of the

    17 Prosecution that that is not relevant.

    18 Second, from the Prosecution's point of view,

    19 no, we are not talking about the Lasva River Valley

    20 only, we are talking about events throughout Bosnia

    21 and, for that matter, Croatia to the extent they are

    22 relevant.

    23 Third, in connection with the relationship

    24 between President Tudjman and Mr. Boban and the

    25 question of command generally, we would submit that a

  84. 1 review of paragraphs 24 to 27 of the majority decision

    2 concerning Article 2, and in particular, a look at the

    3 footnotes in the documents referred to therein might be

    4 of assistance.

    5 Last of all, concerning the "diplomatic

    6 relations" issue, the Prosecution would refer to the

    7 paragraph that was referred to by the appellant, and I

    8 would recite that particular paragraph or part of it,

    9 and it says, among other things:

    10 "Nationals of a co-belligerent state shall

    11 not be regarded as protected persons while the state of

    12 which they are nationals has normal diplomatic

    13 representation in the state in whose hands they are."

    14 We are not talking about a co-belligerent

    15 state in this particular context. "Co-belligerent"

    16 doesn't mean the two sides fighting each other, it

    17 means people on the same side.

    18 That's it, Your Honour.

    19 JUDGE MAY: Thank you, Your Honour.

    20 Mr. Farrell, is there anything you want to

    21 say?

    22 MR. FARRELL: Just one minor point, with your

    23 indulgence. In response to my learned colleague's

    24 comments that the abuse -- knowledge of the abuse by

    25 the accused was unsubstantiated and the reference to

  85. 1 the two killings, I'd just ask if it is relevant, that

    2 you refer to paragraph 33, where at trial the Defence

    3 concedes, in fact, that they -- that there was

    4 knowledge that the appellant was aware that there was

    5 occasional mistreatment by the HVO during trench

    6 digging. In addition, the Defence concedes that in one

    7 instance, two internees were actually killed. For

    8 clarification purposes, there was a concession at trial

    9 not only with respect to the two who were killed, which

    10 he's relying on, but with respect to occasional

    11 mistreatment.

    12 That's all I wanted to bring to your

    13 attention. Thank you for your indulgence.

    14 JUDGE MAY: Thank you. We'll rise to

    15 consider what course we'll take. We'll sit again in

    16 ten minutes.

    17 --- Recess taken at 12.40 p.m.

    18 --- On resuming at 12.58 p.m.

    19 JUDGE MAY: The appellant's appeal against

    20 conviction is dismissed; reasons will be given in a

    21 written judgement in due course.

    22 We reserve judgement on the Prosecution

    23 appeal against acquittal, that is Grounds 1 and 2, but

    24 we allow the Prosecution appeal against sentence, that

    25 is Ground 3.

  86. 1 That requires us to pronounce a revised

    2 sentence. We shall not do that today but shall

    3 consider sentence. Accordingly, the appellant must now

    4 remain in custody until such time as revised sentence

    5 is pronounced. We will notify, in due course, as to a

    6 date for the pronunciation of judgement and sentence.

    7 That concludes this hearing.

    8 THE ACCUSED: Please. Please --

    9 JUDGE MAY: Rise.

    10 --- Whereupon the hearing adjourned

    11 at 1.03 p.m. sine die