Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10446

1 Tuesday, 8 June 2004

2 [Rule 50 Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.02 a.m.

6 JUDGE LIU: Call the case please, Mr. Court Deputy.

7 THE REGISTRAR: Good morning, Your Honours. This is Case Number

8 IT-02-60-T, the Prosecutor versus Vidoje Blagojevic and Dragan Jokic.

9 JUDGE LIU: Thank you.

10 Good morning, ladies and gentlemen. This is a hearing in

11 accordance with Rule 50(A)(i)(c), which says: "The Prosecutor may amend

12 an indictment, (c), after the assignment of the case to a Trial Chamber,

13 with the leave of that Trial Chamber or a Judge of that Trial Chamber,

14 after having heard the parties."

15 Following the Krstic appeal's judgement, the Prosecution filed a

16 motion for leave to file fourth amended joint indictment on the 14th May

17 2004, and the Defence filed his response on the 26th May 2004. On June

18 the 3rd, 2004, the Prosecution filed a reply to the Defence response. I

19 believe that the position of both parties on this issue are clear;

20 however, in order to facilitate the discussion of this proceeding at first

21 I would like to invite both parties to summarise their views very briefly.

22 After that, the Judges might ask some questions to both parties,

23 concerning of the issues raised in their motions.

24 We understand that the parties might hold different views on this

25 issue. The purpose of this hearing is for the parties to present their

Page 10447

1 representative positions, respective positions, sorry, but not to invite

2 the parties to engage in heated debate on legal issues.

3 Well, having said that, could I turn to the Prosecutor. Yes,

4 Mr. Shin, please.

5 MR. SHIN: Thank you, Mr. President. Good morning, Mr. President,

6 members of the Trial Chamber. Your Honours, the Prosecution relies,

7 basically, on its written submissions, and in accordance with the

8 President's wishes seeks here merely to provide a brief overview of its

9 arguments, firstly; secondly, to focus, provide a little more focus on the

10 specific legal issues that the Trial Chamber has previously indicated

11 interest in, and specifically that would be the relationship between

12 aiding and abetting in genocide, and complicity in genocide; and thirdly,

13 the Prosecution will just comment briefly on -- or rather, raise some

14 additional comments to some of the arguments raised by the Defence in

15 their response brief. And of course, the Prosecution will be prepared to

16 respond to any questions from Your Honours and perhaps as well to respond

17 to any additional points raised by the Defence.

18 The Prosecution submits that the motion to amend the indictment

19 should be granted for the following reasons: First, an amendment to the

20 indictment is permitted within the discretion of the Trial Chamber under

21 Rule 50 of the Rules of Procedure and Evidence and under the jurisprudence

22 of this Tribunal. The Defence, as we understand it, does not dispute

23 that. The issue is really whether there's any prejudice that would be

24 occasioned upon the accused by accepting the proposed amendments to the

25 indictment, and the Prosecution would submit there is no prejudice here,

Page 10448

1 because the material facts that underlie a charge of aiding and abetting

2 in genocide -- and I'll slow down, thank you, Mr. President. Underlying

3 accounts of aiding and abetting in genocide, those material facts were

4 already set out in the currently existing indictment and further detailed

5 in the Prosecution's pre-trial brief.

6 On the first point regarding the Prosecution's right to seek an

7 amendment to an indictment, I won't make any further comment other than to

8 briefly refer to a recent decision in the Limaj case dating from the 12th

9 of February, 2004, in which leave to amend the indictment was granted. We

10 would just note that that decision observed that new charges have been

11 added in cases before the ICTY and the ICTR, even in the absence of new

12 factual or evidentiary material. We would also just note, and this is in

13 paragraph 8 of that decision, we would also note that that decision

14 generally held that: "A decision to accept an amendment would normally be

15 forthcoming unless prejudice can be shown."

16 On the issue of prejudice, the Prosecution submits, in short, that

17 there is no prejudice to the accused here resulting from the proposed

18 amendments to the indictment. We turn first to the Krstic Appeals

19 Chamber's decision from, I believe, the 19th of April, this year. The

20 Krstic Appeals Chamber's judgement found that aiding and abetting genocide

21 established where the accused in that case, A, had knowledge of the

22 genocidal intent of others; and, B, made a substantial contribution to,

23 again in that case, the execution of Bosnian Muslim prisoners, and I refer

24 here to paragraph 137 of that judgement.

25 The Prosecution submits that the material facts that would support

Page 10449

1 a charge of aiding and abetting genocide is articulated, as that charge is

2 articulated by the Krstic Appeals Chamber's judgement, have already been

3 detailed in the current existing indictment. In short, the accused has

4 already been put on notice by the existing indictment for criminal conduct

5 that constitutes aiding and abetting genocide. And the Prosecution would

6 point to, for example, the facts pleaded in paragraphs 35 to 54 of the

7 indictment. And I won't go -- unless Your Honours would like, I won't go

8 any further into these specific factual allegations.

9 The Prosecution would submit further that notice of -- notice to

10 the accused that he was being charged with criminal conduct that we see

11 now constitutes aiding and abetting genocide was also provided to the

12 accused in the Prosecution's pre-trial brief and again here. I'll just

13 cite briefly to -- among other sections of the pre-trial brief, paragraphs

14 100 to 111. And the summary of those factual allegations, as set out in

15 paragraph 113.

16 In further support of the Prosecution's argument that the accused

17 has already been put on notice and therefore suffers no prejudice by a

18 charge of aiding and abetting genocide, the Prosecution would point to its

19 discussion of the legal elements of complicity in genocide, set out both

20 in the indictment, paragraph 54, and also in the pre-trial brief,

21 paragraph 206 and 207. In the indictment, the Prosecution alleged that,

22 A, the accused was an accomplice in the commission of a crime; B, the

23 crime was committed; and C, the accused knew of the genocidal intent of

24 those who perpetrated that crime, and therefore the Prosecution was

25 charging the accused with complicity in genocide.

Page 10450

1 Now, the Prosecution would submit in this regard and in this

2 additional argument and support of the Prosecution's position that the

3 accused has been put on notice, the Krstic Appeals Chamber judgement in

4 fact provides further assistance. What the Krstic Appeals Chamber

5 judgement has done, we would submit, is definitively clarified that there

6 is an overlap between conduct that constitutes aiding and abetting

7 genocide under Article 7(1) and Article 4(3)(a), and that covered by

8 complicity in genocide under Article 4(3)(e) of the Statute. We would

9 submit that this overlap is clear on the face of the judgement. If we

10 look at paragraph 139 of that judgement, for example, we see express

11 reference to the consequent overlap between Article 7(1) and Article

12 4(3)(e), and the Appeals Chamber said that that consequent overlap was not

13 inadvertent. It explains a little later in that paragraph that it was not

14 inadvertent because in that case, or rather, to quote it completely: "In

15 this case the two provisions can be reconciled because the terms

16 'complicity' and 'accomplice' may encompass conduct broader than that of

17 aiding and abetting."

18 We would submit that this shows clearly the position of the

19 Appeals Chamber that complicity in genocide encompasses conduct

20 criminalised by a count of aiding and abetting in genocide. Now, the

21 Prosecution recognises also that the Krstic Appeals Chamber judgement goes

22 further and indicates that complicity in genocide not only encompasses the

23 conduct criminalised by aiding and abetting in genocide, but may also

24 include conduct beyond that. Now, we would submit that the full scope of

25 the conduct that would constitute complicity in genocide is not set out in

Page 10451

1 the Krstic Appeals Chamber judgement, and that is for the simple reason

2 that it was not necessarily for them to fully articulated the contours of

3 the complicity in genocide in order to find in that case that Mr. Krstic

4 was guilty of aiding and abetting in genocide.

5 What we would say, though, and reiterate, is that it is clear that

6 there is this overlap of complicity in genocide and aiding and abetting in

7 genocide. There may be, as we see in paragraph 139 in that provision that

8 I just quoted, that conduct constituting complicity in genocide may go

9 beyond that that goes beyond conduct that constitutes aiding and abetting

10 in genocide. But we do note that the Appeals Chamber makes some caveats

11 in making -- in providing that discussion. For example, in footnote 247,

12 the Appeals Chamber expressly states that they are not seeking to make a

13 finding as to the appropriate mens rea for complicity in genocide.

14 So in short, we would say that the Appeals Chamber decision in the

15 Krstic case makes it clear that when an accused has been charged with

16 complicity in genocide he should also have been put on notice of conduct

17 that's criminalised under aiding and abetting in genocide. The

18 Prosecution would reiterate here, as it has set out in its written

19 submissions, that it is fully prepared to proceed on the indictment as it

20 stands if our motion is denied. And that's for the simple reason, again,

21 that the Krstic Appeals Chamber judgement makes it clear that, first,

22 complicity in genocide remains a viable charge, and secondly, in light of

23 the reasoning of the Krstic Appeals Chamber judgement, we would submit

24 that complicity in genocide fully encompasses the count of aiding and

25 abetting, or rather, conduct that's criminalised by aiding and abetting,

Page 10452

1 and of course complicity in genocide is a count in our existing

2 indictment.

3 However, the Prosecution will note that it did not intend in its

4 currently existing indictment to charge the accused with a crime that

5 entails the genocidal intent on his part. Our intent had been to charge

6 him with criminal conduct that entails the knowledge of the genocidal

7 intent of others. The Krstic Appeals Chamber judgement suggests now that

8 the charge of complicity in genocide may go beyond conduct that

9 constitutes aiding and abetting genocide and they stray in the conduct

10 that entails the specific intent for genocide. And I will refer to, in

11 particular, the first sentence in paragraph 142 of the Krstic Appeals

12 Chamber judgement in that regard where, and I quote, the Appeals Chamber

13 states: "By contrast there is authority to suggest that complicity in

14 genocide, where it prohibits conduct broader than aiding and abetting

15 requires proof that the accomplice had the specific intent to destroy a

16 protected group."

17 In conclusion, the Prosecution submits that the motion to amend

18 the indictment should be granted because the proposed amendment would

19 bring the indictment in line with this recent jurisprudence from the

20 Appeals Chamber and accord more fully with the original intent of the

21 Prosecution in charging Mr. Blagojevic. Secondly, the proposed indictment

22 is otherwise permitted within the discretion of the Trial Chamber, by

23 Rule 50 and Tribunal jurisprudence, where there is no prejudice to the

24 accused. And we would submit that here there is no prejudice to the

25 accused. The material facts supporting a charge of aiding and abetting in

Page 10453

1 genocide have already been fully pleaded under the heading -- under the

2 count of complicity in genocide in the indictment and also in the

3 pre-trial brief.

4 Just a quick word on Rule 50(B) and (C), we have submitted that,

5 in our written submissions, that Rule 50(B) and (C) should not apply here

6 because we submit essentially what we have here is a recharacterisation, a

7 legal characterisation of an existing charge, and not, we would submit, a

8 new charge within the meaning of Rule 50. We do recognise, however, that

9 the Trial Chamber may take a different view, that a plea under Rule 50(B)

10 would be necessary. But we would reiterate here that the real issue, the

11 core issue, is whether there is prejudice to the accused. We submit that

12 there is none but even were the Trial Chamber to apply Rule 50(B) and (C)

13 in this instance, we would reiterate that there should be -- there is no

14 rationale or basis in this context for any delay in the continuation of

15 the trial.

16 Finally, I'll just turn briefly to a couple of the arguments

17 raised by the Defence in their response brief. First, the Defence seek to

18 make much of the timing of this motion to amend the indictment and the

19 Prosecution's motivation or reasoning behind it. We would submit that

20 those -- these issues are, first of all, adequately addressed in our

21 written submissions. And secondly, that they distract from the core

22 issue, which is whether there is prejudice to the accused in this

23 instance. On the point of timing, I think we've made it clear that we

24 filed our motion as a response to the Krstic Appeals Chamber judgement.

25 If that Appeals Chamber judgement had come earlier, we would have filed

Page 10454

1 our motion to amend the indictment earlier.

2 Secondly, the accused seeks also to make much of the fact that in

3 prior amendments, the Prosecution dropped the genocide count against

4 Mr. Blagojevic and maintained only the complicity in genocide count.

5 Again, we believe this has been addressed in our written submissions, but

6 we would just note that at the time the existing indictment was addressed

7 to Mr. Blagojevic, it was the position of the Prosecution that conduct

8 that we now see under the Krstic Appeals Chamber judgement should be

9 characterised as aiding and abetting in genocide. The Prosecution has the

10 position that that should be articulated as complicity in genocide. And

11 in particular, the Prosecution was seeking to charge Mr. Blagojevic with a

12 crime that entailed the knowledge of the genocidal intent of others and

13 not with having genocidal intent himself. So that's -- that, we believe

14 is clear, is -- explains why it is that we had at one point dropped the

15 genocide charge and maintained the complicity in genocide charge.

16 At this point, in light of the Krstic Appeals Chamber judgement,

17 we believe it would be in most keeping with the developing jurisprudence

18 to amend this to aiding and abetting.

19 Finally, we would just reiterate that the core issue here is

20 whether there is prejudice to the accused for the reasons we've previously

21 set out in our written submissions, and here today there is no prejudice

22 to the accused arising from this amendment, from the proposed amendments.

23 The Defence does allege that they have suffered prejudice, but they do so

24 in a conclusory fashion, and fail to articulate exactly how it is that

25 prejudice has arisen. We would submit, in short, following the Krstic

Page 10455

1 Appeals Chamber judgement, there can be no prejudice. Complicity in

2 genocide, as set out there, encompasses aiding and abetting in genocide.

3 So a charge of complicity in genocide in the indictment has fully put the

4 accused on notice of the conduct that constitutes aiding and abetting in

5 genocide. Thank you.

6 JUDGE LIU: Thank you very much, Mr. Shin.

7 Now, I turn to the Defence. Mr. Karnavas.

8 MR. KARNAVAS: Good morning, Mr. President. Good morning,

9 Your Honours. I will apologise in advance for not having as eloquent and

10 as polished as I should be for this sort of a momentous occasion, in light

11 of the ongoing activities with the trial and the late filing of the reply

12 by the Prosecution, which we received on Saturday, for whatever reason.

13 In any event, let me just begin by saying if they thought all

14 along that Mr. Blagojevic was only guilty of aiding and abetting, what

15 pray tell stop them in charging him simply with aiding and abetting?

16 What? Was it Madam Del Ponte telling them, no, proceed with higher

17 charges? What stopped them? If you look at their pleadings, their

18 initial pleadings, they tell us why they are seeking this indictment to be

19 amended. And they say specifically: "The Appeals Chamber addressed the

20 relation between complicity in genocide under Article 4(3)(e) on the one

21 hand, and aiding and abetting in genocide on Article 4(3)(a) and Article

22 7(1)."

23 That's what they initially state and that's on paragraph 2. And

24 incidentally, when I look at the Krstic judgement, it doesn't say anything

25 about 4(3)(a). It just says 4(3). But those are their stated reasons,

Page 10456

1 nothing about what they say later on after they filed their reply, without

2 seeking leave as they should have, but nonetheless they state here on

3 paragraph 10: "The accused appears to have fundamentally misunderstood

4 the essence of the Prosecution's position as set out in the motion. In

5 short the Prosecution submits that the Krstic Appeals decision has, from

6 its perspective, expanded the count of complicity in genocide beyond the

7 charge the Prosecution intended. The Prosecution did not intend to charge

8 the accused, Blagojevic, with a crime entailing genocidal intent, but

9 rather, with knowledge of the genocidal intent of others."

10 So finally, after all these years, the Prosecution now says: This

11 is all we wanted to charge him with. My question is: Why didn't they

12 just simply have a charge aiding and abetting in genocide? They could

13 have done that simply at the very beginning. But if you look at the

14 history of this case, initially, they charge him with genocide, and in the

15 alternative, complicity in genocide. For whatever reason, they decided to

16 drop the genocide. Curiously, curiously, and this has puzzled me, to be

17 honest, when Nikolic was charged, even after the indictment was amended,

18 he was charged both with genocide and complicity in genocide, which I

19 thought was oxymoronic, because how can you also have the command

20 responsibility and have a lower-ranking officer charged with a higher

21 crime? It never made sense to me, but I never questioned them. But it

22 would seem to me that they had made some calculated decisions.

23 Now, I've read the Stakic decision, which is quoted in Krstic, and

24 I've done some fairly deep thinking on what the Prosecution has been

25 trying to do all these years and I've finally figured it out. All along

Page 10457

1 they have been trying to promote the idea that in genocide with respect to

2 complicity, you don't need the special intent. That has been the modus

3 operandi from the beginning of this institution. Because by lowering the

4 bar you can get a charge, you can get a conviction on genocide, even

5 though the founders and the drafters of the genocide convention never

6 intended that. That's my opinion from my reading of the history of the

7 convention, that when you look at and when you specifically look at 4(3)

8 and all the different modes, it's clear that you need intent. Now, let's

9 look -- let's leave genocide aside for a second. With respect to aiding

10 and abetting, there has been jurisprudence in this Tribunal. In other

11 modes of liability, or other crimes I should say, where it's clearly

12 stated that for aiding and abetting you only need knowledge, knowledge of

13 the intent of others. So if somebody's about to kill someone and they

14 say: "Can I borrow your gun to kill," and you say: "Go ahead," you're

15 aiding and abetting because you know the intent of the person.

16 So to say today, finally, finally, we've figured it out that for

17 aiding and abetting we only need knowledge, and not intent, and now we

18 have some certainty because of Krstic, I find it, to be honest, rather

19 intellectually disingenuous. And what I really think, what I really think

20 is Krstic, the Krstic Appeals' decision does not give us so much certainty

21 with respect to the legal articulation of genocide and complicity - but

22 I'm going to get to that - but rather, when they see the factual findings

23 in Krstic, and knowing that this case, and the Krstic case, factually are

24 almost identical, which the exception that in this case they have far less

25 evidence than in Krstic, then it becomes crystal clear that there's no way

Page 10458

1 on earth that they'll be able to meet the burden of proof, that is, that

2 of genocidal intent, which is required for complicity. And so, they're

3 reading the tea leaves in the Krstic decision. That's what my submission

4 is and that's what the timing is.

5 Now, let's look at the Krstic judgement, the appeal judgement.

6 And I dare say that I have some problems with this judgement, some major

7 problems. I also understand that under the jurisprudence of this

8 Tribunal, that the Trial Chambers have to apply the law from the Appeals

9 Chambers, something that I learned in this case with respect -- on other

10 issues. So I'm intimately familiar with that, on the application of

11 Appeals Chamber decisions at the trial level.

12 But when you look at the Krstic judgement, and I dare say, history

13 will not be kind to this judgement, unfortunately, it will not. First and

14 foremost, I have problems with the fact that they make reference to

15 Stakic, not because I don't like the Stakic judgement, in fact, I'm

16 mootful in that sense and I know we have two distinguished members of the

17 Stakic panel from the trial level. And in fact, there is one part that I

18 definitely like, and I'm going to talk about that. But what I find

19 troubling, what I find most troubling as a jurist or as a lawyer, that

20 here is a case that's on appeal, in other words it's being appealed to the

21 second Chamber; it is not finalised; and the Appeals Chamber - which

22 eventually is going to have to make a decision on that case - is now using

23 that to bootstrap its argument in the current appeal. In other words, by

24 doing so, how can the Stakic lawyers then turn around and mount an appeal

25 against the very same body that has accepted the Trial Chamber's decision

Page 10459

1 in order to fashion and form an argument or a decision to another appeal

2 argument? Very difficult.

3 Furthermore, and I say this with the utmost respect for this

4 institution, though I have some problems in the way its organised, is the

5 fact that you have the Presiding Judge of Stakic also sitting on the

6 Krstic judgement, the appeal judgement. And I'm not saying there was any

7 impropriety, but I am saying that there is the appearance of impropriety,

8 or at least the appearance of partiality. How can the Presiding Judge of

9 the Stakic decision Trial Chamber then sit on the Appeals Chamber and at

10 the same time making reference to the Stakic decision in order to say:

11 Now we have established law? And I think if you look at the

12 footnotes - and I do this with the utmost respect for the members of the

13 Appeals Chamber, but if I were on the Bench with them I would have had

14 some disagreements with them - but when you look at their footnote 231 and

15 232, they refer to Stakic as if Stakic is law. Stakic is on appeal.

16 They're going to be hearing that case.

17 So I think before we rush to judgement about how good the Krstic

18 appeal judgement is in this case, I think we need to pause. And as I

19 said, history may not be kind, but it will take another Appeals Chamber to

20 find cogent reasons. Perhaps they will listen to part of my argument and

21 find those cogent reasons, at least in part in overturning some portions

22 of this decision. But going further into the Krstic decision, and I hope

23 I'm not too bombastic for this fine institution, but I do get emotional; I

24 can't help it. That's part of my personality. But I do get emotional

25 when I see such things as saying -- for instance, they go on to say about

Page 10460

1 the many domestic jurisdictions both in common and civil law, with respect

2 to the mens rea when it comes to aiding and abetting and what have you.

3 When you look at it, they cite France, Germany, Switzerland and

4 England. Then you see a citation to the United States. We know from the

5 United States that very few states, and not in the federal system, do they

6 say that you accept that or aiding and abetting you do not need intent.

7 You also need the intent; it's not just mere knowledge. So there seems to

8 be a problem. But you have only, rather than many jurisdictions, you have

9 four jurisdictions here with respect to aiding and abetting and genocide,

10 and I think that's very important. Perhaps that's where the Prosecution

11 may have an argument like, well, you know, we didn't think that you could

12 have -- there was no law with respect to aiding and abetting in genocide,

13 that you only needed knowledge. That's where we went astray. But as I

14 said earlier, their intended purpose from day one was to lower the bar so

15 they could get a conviction of the crime of all crimes.

16 Curiously enough in the Krstic decision, as was pointed out by the

17 Prosecution, they ducked the very same issue that they had to discuss in

18 my opinion, which was complicity in genocide. They didn't discuss it at

19 all. What reasons? I don't know. They do speak about the overlap

20 between 7(3) and 7(1), and I want to speak about that a little bit. It

21 was touched on in the Stakic case, both at the 98 bis judgement and in

22 their decision. And what I liked about the Stakic case is the fact that

23 they said, the lex specialis and the lex generalis, I liked that part. In

24 fact, I think that's what this those folks had in mind, unless, of course,

25 you buy into the Appeals Chamber's discussion and say, "oh, no, there was

Page 10461

1 no inadvertence, there was no overlap. And therefore 7(1) applies to the

2 Articles from 2 to 5." The problem with that is, when you get to Article

3 4, which is genocide, it's taken right off the convention, it also has the

4 different modes of liability. You know, you can be genocide, conspiracy

5 in genocide, complicity, incitement, all of that good stuff. So they

6 already included all of that, because I think and I believe that the

7 drafters always had in mind that if you're going to be convicted for

8 genocide, you have to have that special intent. And I dare say, and maybe

9 this is my own personal position but even for aiding and abetting.

10 But as far as applying 7(1) to 4, to Article 4, you have to apply

11 it all the way down the list. Because they don't make any differentiation

12 here in the Krstic judgement. So therefore, if we extend their argument--

13 let's take aiding and abetting and conspiracy to commit genocide. What's

14 a conspiracy? Joining an organisation to commit a crime, right? Well,

15 how can you possibly just aid and abet conspirators? Once you begin to

16 assist in a conspiracy have you not joined the conspiracy? Are you in and

17 out at the same time? Can you just aid the conspiracy without becoming a

18 co-conspirator? It doesn't make much sense. Then if we go to our

19 particular case and if we apply the logic I just heard then it would seem

20 to me there's no need to amend the indictment because the Trial Chamber

21 could very easily find that there is such a thing as aiding and abetting

22 complicity in genocide. Why not? If you look carefully at the judgement

23 of the Appeals Chamber, it doesn't make the distinction, it doesn't say

24 that it's directly to 4(3)(a), which is genocide. At least that's how

25 I've read it. I've read it over and over again. Perhaps I'm too tired

Page 10462

1 and too old to figure it all out, but that's how I see it. It doesn't

2 make sense.

3 The Prosecution says, you know, we never intended to charge

4 anything but knowledge, but if you deny us this motion we're prepared to

5 go forward on a charge which we know is not supported by the evidence and

6 we never intended. So it puts us between a rock and a hard place. Of

7 course, how could a Defence lawyer stand up here and say, wait a second,

8 why wouldn't you want to lower the charges of your client. What I'm

9 saying and what they're trying to do is lower the bar of what they have to

10 prove, because now they realise, midstream, that what they've been saying

11 all along, that we have a man here who had genocidal intent, now they're

12 saying, "We need something and better to get something with genocide on it

13 than nothing." I dare say that's what happened in Krstic. Because also

14 what I find difficult to swallow in Krstic is the fact that the

15 Trial Chamber -- the Appeals Chamber on its own reached down and made that

16 determination as to aiding and abetting. It was never argued by the

17 Prosecutors, it was never pled. It was never argued by the Defence. It

18 was never much of an issue. Krstic had been convicted of genocide. So if

19 he's not convicted of genocide, then you go to complicity in genocide. So

20 for complicity in genocide, we need the special intent. Here the

21 Appeals Chamber says, we're not going to deal with that issue. We're just

22 going to go further down the ladder, and so the question is: Can they do

23 that? Well, in my opinion, the way I see it, here is my interpretation of

24 it, if we were in the common law system, I think the answer would be no.

25 Why? Because the accused would have a right to have a choice whether he

Page 10463

1 wanted a lesser included offence to be considered by the finder of fact.

2 That's how it is. So even though you have a lesser included, the accused

3 may decide, no, I want to roll the dice. What you charge me with, I don't

4 want any of the lesser included to be considered. There was a very famous

5 case a couple of years ago, it was a nanny case in the United States,

6 which was rather significant. They chose, the Defence lawyers for

7 whatever reason chose not to go with manslaughter, and then afterwards,

8 the jury found for the higher offence, and then they went back to the

9 judge and asked the judge to overturn the jury's verdict on the basis that

10 it did not meet the evidence. In the continental system, or the

11 common-law system, I think we're in a rather different system, because

12 they have a different legal tradition. I'm not a specialist but I think I

13 understand it well enough, and in that system, I think and I believe, that

14 the judges have a different function and the Judges can go, no doubt in my

15 mind, the judges can, on their own, say thank you, Mr. Prosecutor, but you

16 missed the boat on that one. There is something, you haven't charged it.

17 But it has to be within the indictment. I think in Germany it may be

18 slightly different, the judges may be allowed to go outside the judgement,

19 or the indictment, I mean, in order to look for evidence, but by and large

20 I think in the continental system the judges can look into the indictment,

21 even if it's not specifically pled in the indictment, if it's a lesser

22 included, the judges on their own have the power to reach down and say,

23 the facts meet this particular crime. And I'm sure you'll correct me if

24 I'm wrong on that.

25 Now, we come to this Tribunal, we have a hybrid system, a little

Page 10464

1 bit of both. My position has always been rather consistent. In court, we

2 have an adversarial system. Very much so. But the legal tradition is, I

3 think, for all intents and purposes, very continental in mind. Why?

4 Because, I think in these sorts of crimes the judges have a special

5 responsibility to make sure the victims are not re-victimised because the

6 Prosecution has failed to properly charge the accused, and at the same

7 time to protect the accused in the event they have some sleeping lawyer

8 who is not protecting them. So I think I will have to agree with the

9 Prosecution that in this particular case the Court does have the right to

10 exercise its discretion, even at this stage to amend the indictment, if it

11 sees it's necessary. We don't have any additional facts in this case, so

12 we are not prejudiced from that standpoint, in other words they're

13 bringing in new charges. We don't have that. You know, we're very clear

14 on that. Had we been prejudiced -- I think we've been prejudiced already.

15 I think Mr. Blagojevic perhaps might have had a shot to be provisionally

16 released, he wasn't, because they made him out to have this genocidal

17 intent.

18 So we have been prejudiced, whether we would have tried the case

19 differently, or prepared the case differently, I can assure you yes.

20 Well, the Prosecution can say, tell us how. It's not for me to tell them

21 exactly how I would have challenged the indictment to start with, how I

22 would have mounted a defence, because I mounted a defence based on

23 challenging intent, knowing that if I can get past that hurdle, then maybe

24 we may get tagged with a lower hurdle but at least I've overcome the big

25 one. If the bar is lower, then of course I'm shooting at the lower bar.

Page 10465

1 And you can't say, it's all-inclusive. It may sound that way, but it

2 isn't that way. Plus, You also have to take into consideration that we

3 have limited resources. So you would target your resources differently.

4 Can I say concretely I would do this and that differently? No. Can I say

5 concretely and exactly how I'm prejudiced? No. We prepared a case based

6 on the indictment, and I think as it was stated in Kupreskic, it says

7 here, the Appeals Chamber emphasised: "The Prosecution is expected to

8 know its case before it goes to trial."

9 Well, they should have known their case, and I certainly knew my

10 case and my case was based on their case. Now they're telling me, for the

11 first time I learn on Saturday, all along I had it wrong. All along, all

12 they intended to charge him with is a crime he had knowledge and not

13 intent. And I submit, Your Honours, the reason they state that is because

14 all along they have been promoting this concept that complicity in

15 genocide only requires knowledge and not intent. They have been trying to

16 shove this down the throat of the Tribunal. And over and over again, they

17 have been told no. And I think it's not amount of clarity. They knew it

18 from the get-go that they needed intent, but they were trying to push this

19 concept to lower the bar because it's easier to get convictions. I think

20 the drafters of the genocide convention saw genocide as the crime of all

21 crimes. And I think the Krstic decision dilutes it.

22 Now, what you do, I think, is up to you. I believe we have been

23 prejudiced. I believe that I will have to switch gears at this point in

24 time. I think it's sort of late in the game. The timing of it, of

25 course, they say, well, Krstic just came out. Of course, yeah, Krstic

Page 10466

1 just came out and they got slapped in the face. They said, you know, the

2 facts that you have weren't good enough. You can't prove intent. Not to

3 mention, and I failed to mention this, another point I find rather curious

4 about Krstic, they're saying he aided and abetted, he had knowledge in

5 assisting some folks that had genocidal intent without saying who they

6 were. How could he know who they are or what their intent was, this

7 special intent, if the Trial Chamber didn't identify them? I just think

8 that this Appeals Chamber decision is rather weak on the law and on the

9 reasoning. I think it's expansive. I think it dilutes the concept of

10 genocide. I don't think it gives us much clarity. I think it will be

11 overturned in some fashion when cogent reasons are articulated in another

12 case. And I don't think the Trial Chamber in this particular case has to

13 apply this decision because it's not directly in this case. The

14 Prosecution is raising it; they made the motion. We leave it up to the

15 Trial Chamber to make its decision whether they should amend the

16 indictment or not. I think you have the right. I think that's where we

17 agree with the Prosecutor, that you have the power, even at this point in

18 time, to amend the indictment. We believe we've shown some prejudice.

19 Can I show more? Concretely, no. But then again, I should not be in a

20 position where I have to disclose my trial strategy and how I would redo

21 it all again on a hypothetical. They're trying to get into the sanctum

22 sanctorum of the Defence. I think that's a bit too much. I don't know if

23 I was very helpful, Your Honours. I apologise for not being as polished

24 as I would have like to have been, and perhaps I wasn't as clear or as

25 thoughtful, but I hope that I was somewhat helpful.

Page 10467

1 JUDGE LIU: Thank you very much.

2 Mr. Stojanovic, are you going to join this discussion?

3 MR. STOJANOVIC: [Interpretation] With your leave, Your Honour, I

4 wish to raise a few points from the viewpoint of our Defence.

5 You have seen from the fourth amended indictment that there is not

6 a single word modifying the earlier indictment regarding our client,

7 Mr. Dragan Jokic. Practically, this entire discussion has turned into a

8 debate concerning the modification of the indictment with respect to the

9 accused Blagojevic, and if we understood it correctly, for the purpose of

10 charging him now with aiding and abetting in light of the recent Krstic

11 Appeals judgement, rather than complicity in genocide.

12 Since not a single word of modification has been suggested in

13 respect of our client, either in terms of legal qualification or

14 description, the question arises: Are we able at all to object to this

15 motion to amend the indictment? Because we seem to have exhausted our

16 right to object concerning the third amendment of the indictment. I

17 believe we have no grounds for objecting, because there are no new facts

18 and no new charges that would prejudice our client.

19 Instead, a different debate has been opened here and we observed

20 in it that there is no supporting practice in this Tribunal. According to

21 the judgement under 98 bis, we received the decision handed down by this

22 Trial Chamber which stipulates that after the completed Prosecution case

23 our client has not been proven to be individually responsible on counts 2

24 to 5, whereas he is responsible, liable, for all charges under counts 2 to

25 5, as a person who has aided and abetted this crime. You know that after

Page 10468

1 the legal proceedings that took place here, as to whether this decision

2 should have been sought to be revoked by interlocutory appeal or

3 otherwise, the decision of our Defence team was not to proceed with an

4 appeal.

5 In the legal system where I come from, such a decision is legally

6 valid and effective.

7 Excuse me, Your Honour, I was just informed that the record states

8 that we did not appeal. What I meant to say was that the Prosecution did

9 not appeal and after the expiry of the given deadline, the decision became

10 effective. In this sense what is at issue here is the res judicata. For

11 our Defence team, the decision is effective in the part which concerns

12 aiding and abetting.

13 In the specific situation, our Defence team believes that the --

14 had the Prosecution had persisted in its previous qualification rather

15 than abiding by the decision of the Trial Chamber, in the belief that it

16 will be able to adduce additional evidence after the Defence case and

17 succeed in proving the individual responsibility of our client. It

18 remains for us to adduce evidence in our Defence case, to prove that he is

19 not liable, even on the charges of aiding and abetting.

20 What we wish to emphasise today while subscribing to everything

21 that the Defence counsel of Mr. Blagojevic said, is that there can be no

22 aiding and abetting without intent, without premeditation. Mere knowledge

23 of the existence of a crime, that is the crime itself and its perpetrator,

24 cannot be the only reason underlying somebody's criminal liability. In

25 addition to knowledge, intent is required as well. It remains to be seen

Page 10469

1 whether it is intent to perpetrate, be an accomplice in, or aid and abet.

2 And that is the question of how we value and judge the evidence.

3 In light of the experience of this Tribunal, individual

4 responsibility indubitably requires intent on top of knowledge. In other

5 words, it is necessary to prove that our client had the intention to aid

6 and abet the perpetrators.

7 In conclusion, we would like to join in the arguments presented by

8 the Defence of Mr. Blagojevic and to reiterate the theory which seems

9 purely academic to us, because the indictment does not charge Dragan Jokic

10 with any mode of liability and genocide, and that was finally clarified

11 under the decision of 98 bis. Somebody cannot be properly convicted of

12 complicity or aiding and abetting where the perpetrators are not

13 specified. From the Krstic appeals judgement, it seems to transpire that

14 genocide was committed by members of the Main Staff. The judgement does

15 not say who the perpetrators were, but still the judgement does make a

16 step further and says that somebody, in this case Krstic, aided and

17 abetted the unidentified perpetrator. This is a highly unusual situation

18 in which time and jurisprudence will have the final word. However, as far

19 as our Defence team is concerned, this is an academic discussion, because

20 as I mentioned the amended indictment does not charge us with any mode of

21 liability under genocide. Thank you.

22 JUDGE LIU: Well, thank you, Mr. Stojanovic. It is very helpful

23 for the Bench to know your position on this issue and your position is

24 registered in the transcript.

25 Yes, Mr. Shin, I give you less than five minutes for a very

Page 10470

1 concise reply, if there's any.

2 MR. SHIN: Thank you, Mr. President. I don't think I'll even need

3 the full five minutes. First, I would just point out that the Defence for

4 Mr. Jokic did not file any motions on this issue, and we would submit that

5 they, in fact, have no standing to make oral submissions on this point.

6 We acknowledge that they state -- this is an academic discussion and we

7 take that to be acknowledgment on their part that they do not have

8 standing to make oral submissions here.

9 Just to note also for the Defence for Mr. Jokic, I'm not sure if I

10 misunderstood this in the transcript, but the 98 bis decision as we read

11 it does not include the word "committing" in its judgement of

12 acquittal -- in respect of Mr. Dragan Jokic. So that may have been an

13 error in our understanding.

14 As regards the Defence submissions for Mr. Blagojevic, we heard a

15 lot about speculations on the motive of the Prosecution, the structure of

16 the Tribunal, and other issues relating to Article 4, other than what is

17 at issue here. On the issue that is relevant here on prejudice, the

18 Defence has essentially admitted that there is some prejudice but not

19 much. And we would submit that some prejudice is merely a conclusory

20 reiteration of this claim of prejudice without any substance behind it.

21 And finally, we would just note that the Prosecution intends to

22 keep its concerns about the Krstic Appeals Chamber decision to ourselves.

23 But in any case, the Krstic Appeals Chamber judgement is the law. We are

24 a tribunal of law and we are bound by that decision.

25 JUDGE LIU: Thank you. I believe that the Judges may have some

Page 10471

1 questions to both parties. I think first of all we would like to address

2 a question to the Prosecution.

3 Well, as the Prosecution claimed if the criminal conduct that the

4 Prosecution is charging Mr. Blagojevic with is already included in

5 complicity in genocide, as submitted in the motion, why did the

6 Prosecution request leave to amend the indictment?

7 MR. SHIN: Mr. President, in brief, the Krstic Appeals Chamber

8 judgement indicates that complicity in genocide, which we had previously

9 considered to be essentially the same as aiding and abetting in genocide,

10 does indeed overlap with aiding and abetting in genocide but also goes

11 further than that and may entail conduct, may criminalise conduct, that

12 also entails the specific intent for genocide.

13 As it was clear in our indictment, and I refer specifically to

14 paragraph 54, the intent of the Prosecution was to charge the accused with

15 criminal conduct with the knowledge of the specific intent of others. To

16 the extent that this extends -- that the results of the Krstic Appeals

17 Chamber judgement is that the charge, as it stands now, extends beyond

18 that, we think it would be appropriate to make this amendment.

19 In addition, we also note that the Appeals Chamber judgement in

20 Krstic found that under facts which, as the Defence themselves have

21 indicated are very similar to the facts of this case, that aiding and

22 abetting in genocide would be the proper characterisation of the criminal

23 conduct in that case. Now, I think one issue that may have -- that may be

24 behind some of the submissions of -- made today by the Defence is that

25 there is in some respect, perhaps, something that's counter-intuitive

Page 10472

1 about the concept. Complicity in genocide may entail genocidal intent,

2 and aiding and abetting in genocide may entail a mens rea of knowledge of

3 the specific genocidal intent of others, but in any case that is the

4 jurisprudence coming out of the Krstic Appeals Chamber judgement. And in

5 light of that, we thought it would be appropriate and believe still that

6 it would be appropriate to file the amendments to the indictment, as set

7 forth in the motion.

8 [Trial Chamber confers]

9 JUDGE LIU: Yes, Judge Vassylenko.

10 JUDGE VASSYLENKO: If the amendment of the indictment is not

11 granted by this Chamber, is the Prosecution indicating that the

12 Trial Chamber should not go beyond that part of complicity in genocide

13 which reflects aiding and abetting?

14 MR. SHIN: Yes, Your Honour, that is the Prosecution's submission,

15 and indeed, to reiterate, that's why the Prosecution does believe that the

16 amendment would be appropriate, in order to circumscribe the criminal

17 conduct that's being alleged to what the Prosecution had intended by its

18 language. And we're not speaking about now some other motive or intent of

19 the Prosecution, other than as reflected in the language of the existing

20 indictment. We believe that the amendment would bring the charge in line

21 with what was intended. And just to add also, that as the -- as the

22 Krstic Appeals Chamber judgement indicates, if complicity in genocide is

23 to include both conduct -- criminal conduct coupled with knowledge of the

24 genocidal intent of others and potentially also - and I emphasise

25 potentially there, because of course that's a dicta from the Appeals

Page 10473

1 Chamber judgement on that issue - but also to include criminal conduct

2 coupled with the genocidal intent, I mean, in short our position is that

3 it would be preferable to focus -- to bring the indictment in line with

4 the more specific charge, specific to what the Prosecution intended in

5 charging Mr. Blagojevic with complicity in genocide.

6 JUDGE LIU: Yes, Judge Argibay.

7 JUDGE ARGIBAY: This is perhaps a technical question, but do you

8 find a difference between Article 4(3)(e) and Article 4(3)(a) behind this

9 proposal of amending the indictment? I mean, would you -- a finding of

10 aiding and abetting genocide more properly be reflected under Article

11 4(3)(e) than 4(3)(a)?

12 MR. SHIN: Your Honour, in light of the Krstic Appeals Chamber

13 judgement, which we must work with in this regard, we believe that as that

14 judgement found or as the Appeals Chamber found in that case, that aiding

15 and abetting in genocide would be the more proper characterisation of the

16 count -- of the charge. And certainly in line with the specific language

17 in the indictment that the Prosecution had sought to charge Mr. Blagojevic

18 with. I'm not sure if that answers your question, but I'm happy to expand

19 further, if it would be helpful.

20 JUDGE ARGIBAY: Do you have -- sorry.

21 MR. SHIN: Sorry.

22 JUDGE ARGIBAY: Do you think that there is a hierarchial

23 relationship between Article 4(3)(a) and Article 4(3)(e)?

24 MR. SHIN: Your Honour, we would hesitate, for the purposes of

25 this motion, to set out a position beyond the specific teaching of the

Page 10474

1 Krstic Appeals Chamber judgement on this issue of aiding and abetting in

2 genocide and complicity in genocide. So I don't think in that context it

3 would be appropriate for us to take a view as to the hierarchy of the

4 elements within Article 4, except to say that what is relevant from the

5 Krstic Appeals Chamber judgement here is what they have said about

6 complicity in genocide, that it encompasses aiding and abetting in

7 genocide and may go further. And that's what has occasioned us to file

8 the instant motion to amend the indictment. And that's where we believe

9 that the amendment would bring it more in line with the jurisprudence from

10 the Krstic Appeals Chamber judgement.

11 JUDGE ARGIBAY: One more, only one more. You have submitted that

12 the amended would reduce the liability of Mr. Blagojevic under

13 Article 7(1) of the statute. But what impact, if any, could the amendment

14 have on his alleged responsibility under 7(3)?

15 MR. SHIN: Well, to be frank, Your Honour, we haven't addressed

16 that specific issue. I think our view is that that's not specifically an

17 issue for the purposes of this amendment, for the amendment that we're

18 seeking at this juncture. But we don't believe that there should be any

19 impact on Article 7(3) in that regard.

20 JUDGE ARGIBAY: Thank you. I have no further questions.

21 JUDGE LIU: Well, there are some questions addressed to the

22 Defence. I'm not sure that I understand -- fully understand the Defence's

23 position, especially on the issue of whether the complicity in genocide is

24 a form of liability for the crime of genocide. If so, how could we define

25 this form of liability, or does the Defence understand the complicity in

Page 10475

1 genocide to be a distinct act or distinct crime?

2 MR. KARNAVAS: Thank you for asking that question, Your Honour,

3 because I believe it ties in with the second-to-last question by

4 Judge Argibay and I would like to address both of them.

5 Well, the Prosecution, first of all, in paragraph 9 of their

6 initial motion says, and I quote: "The Krstic Appeals Chamber judgement

7 affirmed that complicity in genocide is distinct from aiding and abetting

8 in genocide, and in that sense there can be no question that the legal

9 characterisation of count 1(B) of the indictment is viable on its face."

10 If I understand the Prosecution's position, and my reading of the

11 Krstic is: You have genocide and then you have complicity or conspiracy

12 and what have you. Under genocide, perhaps as a lesser included, you

13 would have aiding and abetting, because that's how I see it at least, with

14 complicity being somewhat different, which is why in order for them -- if

15 you buy into their argument, in order for you to find aiding and abetting,

16 they have to re-charge under genocide. So in other words had they

17 allowed -- had they kept the indictment as it was initially, they would

18 still have the possibility of you finding aiding and abetting because

19 genocide is there as a lesser -- so aiding and abetting would be the

20 lesser included in genocide.

21 Not having genocide, then you come to this dilemma, as was pointed

22 out earlier, which is: Well, can you have aiding and abetting in

23 complicity in genocide? So does 7(1) apply to 4(3)(e)? It's almost, for

24 lack of a better term, you know legally absurd to go that route. But if

25 you look at the Krstic judgement, it's very unclear, because it just says

Page 10476

1 we look at 7(1) and 7(1) was poorly drafted -- that's what my opinion is,

2 as opposed to the drafters had something else in mind, I think it's poor

3 draftsmanship, and in retrospect nobody picked up on it and here we are.

4 7(1) is not a problem for Article 2, it's not a problem for Article 3 and

5 it's not a problem for Article 5. It becomes a problem for Article 4

6 because you have 4(3), (a), (b), (c), (d), (e). That's where the problem

7 arises.

8 And I think if you read the Krstic decision, they -- and I've read

9 it several times. I believe what they're saying is complicity in genocide

10 is separate from genocide, and therefore, they don't even touch

11 complicity, they don't deal with it, but rather, they say the facts in

12 this case go to knowledge and therefore that would be a lesser included in

13 the genocide. And I think that's why the Prosecutor panicked, because

14 when they looked at their indictment and say, my God, we took out

15 genocide, now how do we get there? Which brings you back to the question,

16 Judge Argibay, that you asked which is: Well - or Judge Vassylenko, I

17 don't know which one of you, but one of you - what if you go to

18 trial -- what if you proceed, are you saying that we should only find

19 aiding and abetting in complicity? Since you're telling us now, the cat

20 is out of the bag, as it were, that all you wanted from day one was aiding

21 and abetting, all you're saying is he had knowledge. If you keep it and

22 don't change the indictment, aren't you telling us that we could only find

23 aiding and abetting in complicity in genocide? You see. That's what's

24 happening over here. And of course we on the Defence side do have some

25 concerns with 7(3). I didn't address them, but I think there's

Page 10477

1 some -- there's an article by Mr. Schabas, a renowned expert on genocide.

2 He talked about that, especially with respect to the Krstic judgement.

3 But frankly I've been a little overwhelmed in the last few days with other

4 matters and I didn't pay much attention to 7(3), otherwise I would have

5 mounted a defence on that. But I do think there are some implications

6 between you're talking about command responsibility and the imputed intent

7 or knowledge of the commander. So there are some implications.

8 And with all due respect to my colleagues on the other side, they

9 haven't defended the case, they haven't put a defence. It's easier to

10 construct a Prosecution than to mount a defence. It's a different

11 methodology, a different approach; so we are prejudiced. But I don't know

12 if I'm answering your question, Mr. President. I see them as distinct. I

13 see aiding and abetting as part of genocide. Perhaps that's why if the

14 statute is ever amended, 7(1) should say, included in Articles 2, 3,

15 4(3)(a) so it excludes all the others. Because as I indicated, can you be

16 an aider and abettor to a conspiracy to commit genocide? Have you not

17 joined the conspiracy by aiding the conspiracy? At least in the

18 United States, which is sort of the flavour of the day of every Prosecutor

19 in the federal system, because it's a big net, conspiracy, the moment you

20 do anything with respect to the co-conspirators, you become a

21 co-conspirator. So that's aiding and abetting. So how can you become an

22 aider and abettor in a conspiracy? It means you're in the conspiracy and

23 at the same time you're out. It's, as I said, rather legally absurd.

24 And that's why I think, and I probably agree with the Prosecution,

25 though they don't want to take a position on this one, it's kind of

Page 10478

1 disturbing because they're hedging for other cases I would suspect, but

2 they should come clean and just tell us, you know, that they're distinct.

3 And that's why they want to amend the indictment. And all I'm trying to

4 do, Your Honour, is get the truth out. What are we really here about?

5 They want to focus me on the issue and I want to focus on the facts.

6 Because I believe the motivation behind the Prosecution is they're seeing

7 that they cannot get a conviction that has genocide on it unless somehow,

8 this Trial Chamber --

9 MR. McCLOSKEY: Your Honour, I'm going to object at this point to

10 this argumentative -- going into his case now; arguing genocide; wrapping

11 in U.S. conspiracy law into this discussion, which has nothing to do with

12 joint criminal enterprise law, nothing to do with this discussion; it's

13 highly prejudicial; it has nothing to do with the issues that are

14 addressed. So I will just say at this point I think it's enough.

15 JUDGE LIU: Well, Mr. Karnavas, I think I understand your position

16 on this issue.

17 MR. KARNAVAS: I got carried away, Your Honour. I apologise. But

18 I don't think it's prejudicial to anybody.

19 JUDGE LIU: Well, Mr. Karnavas.

20 MR. KARNAVAS: Yes, Your Honour.

21 JUDGE LIU: You did not specifically say how would the amendment

22 affect the preparation required by the Defence. Of course, you -- I

23 believe that you have no obligation to disclose your case, your strategy,

24 but we need a little more detailed information. I hope you could furnish

25 this information as far as you could. Of course, we do not force you to

Page 10479

1 lay your cards on the table.

2 MR. KARNAVAS: Well -- very well, Your Honour. There are few

3 cards, as there are in any defence, but we'll play them well.

4 First of all, first and foremost, as you well know, the first

5 thing that a lawyer does is challenge the indictment. And So based on how

6 the indictment would have been prepared, we would have mounted a different

7 motion practice with respect to that particular indictment.

8 Secondly, there is the different interplay between 7(1) and 7(3),

9 and you know with -- we always went along with the understanding that

10 since he's charged with complicity in genocide that I had to mount a

11 defence that included special intent. And so in packaging our defence, we

12 always kept that in mind. Now, the Prosecution says: Well, there is this

13 overlap. And I'm willing to concede that there is a certain amount of

14 overlap, because I do believe -- and perhaps in answering Judge Argibay's

15 question is that if it's a lesser included, you look at it as a pyramid.

16 I've always -- that's how I teach it is that, you know, you start with

17 knowledge and then if you go up the ladder, if you had intent you would

18 have had knowledge plus intent, because you can't have knowledge -- intent

19 without knowledge. So you go up the ladder. So if you're looking at a --

20 say for instance, in a murder case you would have negligence, then

21 recklessness, then knowledge, then intent. And That's how you get all the

22 way to the top.

23 So if you look at it that way, as a pyramid, you would have

24 knowledge as a stepping-stone before you get to genocide. When you get to

25 complicity, it's a little bit different and -- but I have to concede and

Page 10480

1 I'm willing to concede that in preparing this case, of course I'm always

2 preparing with the understanding that knowledge is a stepping-stone. But

3 again, I have to emphasise that with the limited resources that we have,

4 I'm going to mount a different defence if all I have to do is attack

5 knowledge versus attacking intent. That's -- so that's -- I think a

6 prejudice that's hard to put a handle on at this point in time because I'm

7 two weeks away from resting. And at this point in time, I have to

8 confess, it's very difficult for me to stop and smell the roses and try to

9 figure out, how would I do this all over again? I'm just trying to keep

10 my nose above the water. So there's that.

11 And I haven't -- I know that there is a significant interplay

12 between 7(1) and 7(3), particularly 7(3) and Article 4. And of course we

13 would have -- in my opinion, we would have investigated the case

14 differently, perhaps brought different witnesses here, more witnesses

15 dealing with knowledge versus the intent. The Prosecution has claimed on

16 many occasions that Blagojevic was in meetings. Being in a meeting, that

17 would denote that he was part of the planning process versus maybe hearing

18 about it. So as I -- I believe that we have been prejudiced, and I think

19 that we will be prejudiced.

20 On the other hand, I will concede that the Trial Chamber has to

21 apply the law, and the question is: Now that that's being brought to the

22 Court's attention by the Prosecutor they don't have the evidence or they

23 never had the intent. Why they never expressed it earlier, I don't know.

24 I'm a little upset, but I guess I should be glad. But they never really

25 mentioned it before that all they wanted was knowledge, not intent. But

Page 10481

1 now they've come clean. So the question is: What do we do? I leave

2 that up to you, Your Honours, because I'm in a difficult position, as you

3 could understand. If I were in my own legal tradition, I would be playing

4 it a little differently. But here, I understand that the Judges can act

5 on their own in order to make sure that justice is done at the end of the

6 day.

7 JUDGE LIU: Thank you.

8 Well, at this stage are there any matters that -- yes, Mr. Shin.

9 MR. SHIN: Mr. President, if I could just in one minute respond to

10 some of the issues raised there.

11 JUDGE LIU: Yes.

12 MR. SHIN: Counsel for the Defence has made references to "cat out

13 of the bag," "coming clean." If we just turn to paragraph 54 of the

14 existing indictment it says very clearly: "The conduct of -

15 Mr. Blagojevic - met the requisite three elements of complicity in

16 genocide." The third one there is: "The accused knew that the crime was

17 being committed" --

18 THE INTERPRETER: Could counsel slow down, please.

19 MR. SHIN: I'm sorry. I was speaking too quickly there. I'll

20 slow down. I'll re-read that paragraph. "The conduct of Vidoje

21 Blagojevic met the requisite three elements of Complicity in Genocide,

22 namely that" -- and I'll go to C -- "The accused knew that the crime was

23 being committed in furtherance of the intent to destroy, in whole or in

24 part, a national, ethnic, racial, or religious group, as such."

25 So frankly, we don't understand where -- what the Defence is

Page 10482

1 getting at about this sudden revelation. This is in the existing

2 indictment. That's all. Thank you.

3 JUDGE LIU: Thank you.

4 Yes, Mr. McCloskey.

5 MR. McCLOSKEY: Just a matter from yesterday, if we could go into

6 private session. It's nothing very extensive, but something I've

7 discussed briefly with Mr. Karnavas that I would like to discuss with you.

8 JUDGE LIU: So we are leaving this subject?

9 MR. McCLOSKEY: Yeah -- well, when you are finished with it, of

10 course. Yes.

11 JUDGE LIU: Yes. We'll go to private session, please.

12 Well, it seems to me that we have some problems with the

13 communication.

14 [Trial Chamber and registrar confer]

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

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13 [Open session]

14 JUDGE LIU: Well, I guess that we have exhausted this topic, and

15 the Bench will withdraw for the deliberation of the ruling concerning of

16 the request filed by the Prosecution.

17 The hearing is adjourned , and we'll meet at 2.15 in the courtroom

18 this afternoon.

19 --- Whereupon the Motion Hearing adjourned.

20 at 12.33 p.m.