Tribunal Criminal Tribunal for the Former Yugoslavia

Page 41

1 Thursday, 7 December 2006

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE MERON: Please be seated.

7 Registrar, would you please call the case on the Appeals Chamber

8 agenda.

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

10 IT-99-36-A, the Prosecutor versus Radoslav Brdjanin.

11 JUDGE MERON: Thank you. I would like to make sure that the

12 interpreters are here and that they can hear me. It's okay.

13 THE INTERPRETER: Yes, Your Honour.

14 JUDGE MERON: Mr. Brdjanin, I see, is in the room. Mr. Brdjanin,

15 can you hear me in a language you understand? You are getting the

16 translation, right?

17 THE APPELLANT: [Interpretation] Good afternoon to everyone. I can

18 hear interpretation, and I can follow in a language I understand.

19 JUDGE MERON: Thank you, Mr. Brdjanin. You may sit down.

20 Appearances of the parties. Prosecution.

21 MS. BRADY: Good afternoon, Your Honours. Helen Brady appearing

22 on behalf of the Prosecution. Together with me today Mr. Peter Kremer,

23 Ms. Katharina Margetts, Ms. Barbara Goy, and our case manager Ms. Lourdes

24 Galicia. Thank you.

25 JUDGE MERON: Thank you, Ms. Brady.

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1 The Defence.

2 MR. ACKERMAN: Good afternoon, Your Honours. I'm John Ackerman on

3 behalf of Mr. Brdjanin. With me today is Milan Veselinovic who is serving

4 as an interpreter for me.

5 JUDGE MERON: Thank you, Mr. Ackerman. By order of November 7,

6 2005, the Association of Defence Counsel was allowed to address the

7 Appeals Chamber as amicus curiae during this hearing. I see that the

8 representative of the Association of Defence Counsel is present. Would

9 you identify yourself for the record so we all know you.

10 MR. KARNAVAS: Certainly, Mr. President, and Your Honours. Good

11 afternoon. My name is Michael Karnavas.

12 JUDGE MERON: Thank you, Mr. Karnavas. You may be seated.

13 Please let me explain how we are going to proceed during this

14 hearing. This is the appeal hearing in the case of Prosecutor against

15 Radoslav Brdjanin. The trial judgement was issued on 1 September 2004 by

16 Trial Chamber II composed of Judges Agius, Janu, and Taya.

17 The Trial Chamber found Brdjanin guilty pursuant to Article 7(1)

18 of the Statute of the following crimes: Persecutions, Count 3, which also

19 incorporates torture as a crime against humanity, Count 6; deportation as

20 a crime against humanity, Count 8, and the inhumane acts of forcible

21 transfer as a crime against humanity, Count 9. The Trial Chamber also

22 found Brdjanin guilty of wilful killing, Count 5; torture, Count 7; wanton

23 destruction of cities, towns and villages or devastation not justified by

24 military necessity, Count 1; and destruction or wilful damage to

25 institutions dedicated to religion, Count 1.

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1 The Trial Chamber found Brdjanin not guilty of the crimes of

2 genocide, Count 1; complicity in genocide, Count 2; extermination as a

3 crime against humanity, Count 4; and unlawful and wanton extensive

4 destruction and the appropriation of property not justified by military

5 necessity, Count 10.

6 The Trial Chamber imposed a sentence of 32 years' imprisonment.

7 Let me turn to grounds of appeal.

8 Both the Prosecution and the Defence appealed against the

9 judgement of the Trial Chamber. I will now briefly summarise the grounds

10 of appeal of the parties; first Brdjanin, then the Prosecution.

11 Brdjanin submits numerous challenges to the legal and factual

12 findings of the Trial Chamber, and he argues that he should be acquitted

13 of all charges against him. In particular, his challenges relate to 3

14 main areas.

15 First, some challenges relate to the role of the ARK Crisis Staff

16 in the crimes that occurred in the ARK during the relevant period.

17 Second, other challenges relate to Brdjanin's own power and role

18 in relation to the ARK, his relationship with Radovan Karadzic, and his

19 role in the implementation of the strategic plan. This strategic plan,

20 according to the Trial Chamber, was to link Serb-populated areas in

21 Bosnia-Herzegovina together, to gain control over these areas, and to

22 create a separate Bosnian Serb state from which most non-Serbs would be

23 permanently removed.

24 Third, Brdjanin challenges a number of findings related to his

25 individual criminal responsibility for the crimes that occurred during,

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1 and as a result of, the implementation of the strategic plan. The

2 Prosecution submits four grounds of appeal.

3 First, it argues that the Trial Chamber erred when it dismissed

4 joint criminal enterprise as a valid mode of liability in this case and

5 when it held that the physical perpetrator of a crime must be a member of

6 the joint criminal enterprise concerned. The Prosecution submits further

7 that the first category of joint criminal enterprise does not require an

8 understanding or agreement between an accused and the physical perpetrator

9 of the crime, contrary to what was stated by the Trial Chamber.

10 The Prosecution further disputes the Trial Chamber's findings that

11 Brdjanin is not liable for killings related to detention facilities and

12 that Brdjanin is not responsible for the crime of extermination. In

13 general, the Prosecution seeks an increase of Brdjanin's sentence to

14 reflect the totality of his criminal conduct.

15 Let me say something about the standard of appeal.

16 Before starting with the arguments of the parties, here I would

17 like to recall the criteria applicable to errors of fact and law alleged

18 on appeal. The appeal is not a trial de novo, and the appellants must not

19 merely repeat the arguments made at trial. Rather, in accordance with

20 Article 25 of the Statute of the Tribunal, the appellants must limit their

21 arguments to alleged errors of law which invalidate the decision or

22 alleged errors of fact occasioning a miscarriage of justice.

23 Additionally, the Appeals Chamber recalls that the appellants have

24 an obligation to provide precise references to materials supporting their

25 arguments on appeal. Further, considering that extensive written

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1 submissions have been filed in the past two years in this case, the Bench

2 urges the parties to address only those issues that, in their opinion,

3 have not been sufficiently developed before.

4 The orders of 3 October, 27 October, and 3 November 2006 provide

5 the agenda for the present hearing.

6 As I mentioned before, the Association of Defence Counsel was

7 granted the possibility to make oral representations, as an amicus curiae,

8 on the issue of the JCE. Through its representative it has notified the

9 Appeals Chamber of its intention to spend 15 minutes later today on this

10 issue.

11 I would like to address five additional preliminary matters.

12 In its order of 3 November 2006, the Appeals Chamber put a number

13 of questions to the parties on which it seeks elaboration during the

14 hearing. The first question posed to the Defence, relating to the motion

15 to strike or otherwise set aside the corrigendum to judgement, need not be

16 answered in light of the Defence filing of 27 November 2006 withdrawing

17 that motion.

18 The second question posed by the Appeals Chamber related to the

19 withdrawal of alleged errors of fact by Brdjanin. The Judges have

20 received a courtesy copy of the correspondence between the parties in this

21 respect. The Bench is thus in a position to follow any argument on this

22 issue more thoroughly.

23 Third, on 13 November 2006, the Prosecution filed a response to

24 the Appeals Chamber's order of 27 October regarding the findings of the

25 Trial Chamber that would support a conviction for joint criminal

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1 enterprise. Thus the Appeals Chamber would like a brief answer to this

2 question, but only if anything needs to be added to the filing pursuant to

3 the order of 27 October 2006. Brdjanin has chosen not to file any written

4 reply on this issue, and is therefore expected to address it during this

5 hearing.

6 Fourth, I recall that at the Status Conference of 18 October 2006,

7 both parties suggested that oral arguments in this case would not take

8 long. The Appeals Chamber has therefore made flexible arrangements for

9 this hearing. However, parties are, as always, encouraged to use the time

10 allotted efficiently. Should they feel that they need less time than what

11 we scheduled, they are encouraged to say so.

12 Finally, the Appeals Chamber notes with regret that the

13 Prosecution's response to the Appeals Chamber questions on JCE filed on

14 13 November 2006 was much longer than the Appeals Chamber had ordered.

15 While the Appeals Chamber had ordered the Prosecution to submit a filing

16 of no more than 10 pages, the Prosecution filed 14 pages. The filing

17 contained a request for leave to extend the number of pages permitted in

18 the order.

19 The Appeals Chamber recalls that pursuant to the practice

20 direction on length of briefs and motions, and I quote: "A party must

21 seek authorisation in advance from the Chamber to exceed the word limits

22 in this practice direction and must provide an explanation of the

23 exceptional circumstances that necessitates oversized filing."

24 Although the limit had been established by the Appeals Chamber's

25 order in this case, we consider that the principle applies mutatis

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1 mutandis. The Appeals Chamber finds that the Prosecution acted

2 inappropriately in seeking this extension at the same time as it filed the

3 response.

4 However, in order to avoid further discussion, and considering

5 that the excessive length of the filing was partly due to the attempt to

6 quote extensive portions of the trial judgement for ease of reference, the

7 Appeals Chamber will not reject the filing this time. The Prosecution's

8 request for leave to extend the number of pages permitted in the order is

9 granted, but I take this opportunity to warn the Prosecution not to take

10 this as an indication that such an extension will be granted in the

11 future.

12 We will now turn to the oral submissions of the parties. We will

13 proceed according to the Scheduling Order for preparation of appeal

14 hearing of 3 November. I will not repeat that schedule now.

15 It will be most helpful to the Appeals Chamber if the parties

16 could present their submissions in a precise and clear manner and within

17 the time allowed or shorter. The Judges may, as usual, interrupt the

18 parties at any time to ask questions. They may also ask questions

19 following each party's submissions as they might deem appropriate. Let me

20 also state that the Appeals Chamber expects the parties to address the

21 questions put to them in the Scheduling Order of 3 November during the

22 time allotted for their submissions.

23 We will start with the submissions of the Prosecution, for which a

24 maximum of 75 minutes have been allotted.

25 Finally, let me briefly mention the question of Mr. Brdjanin's

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1 counsel.

2 Mr. Brdjanin, as Presiding Judge in this case, I received copies

3 of correspondence between you and the Registry. In your letter, you

4 suggested that your counsel, Mr. Ackerman, failed to ensure proper

5 communication with you. You have therefore asked the Registry to withdraw

6 his appointment. At the request of the Registrar, Mr. Ackerman responded

7 to your letter. Mr. Ackerman's letter that is not been provided to the

8 Bench.

9 Under Article 20(A) of the directive on the assignment of Defence

10 counsel, the registrar may, interests of justice, withdraw the assignment

11 of counsel at the request of the accused. The Registry, exercising its

12 authority in this matter, issued a decision on 5 December 2006, in which

13 it rejected your request. According to Article 20(A) of the directive

14 where a request for withdrawal of counsel has been denied, the person

15 making the request may, within 15 days, seek review of the Registrar's

16 decision with the President of the Tribunal. I read this provision as

17 meaning that appeals against the Registrar's decision are not within the

18 jurisdiction of this Chamber but are instead within the jurisdiction of

19 the President of the Tribunal.

20 With that in mind, we shall therefore proceed with the hearing as

21 planned, and with Mr. Ackerman, who has prepared the legal submissions,

22 acting as your counsel.

23 I have been informed that you and Mr. Ackerman did meet shortly

24 before this hearing. Should you consider it necessary, we would extend

25 the time for your concluding personal statement to half an hour.

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1 This ends my introductory statement, and we will now proceed

2 according to the order specified in our Scheduling Order for preparation

3 of this hearing of 3 November 2006, and we will now -- you may be seated,

4 Mr. Brdjanin. And we will now turn to the submissions of the Prosecutor,

5 and you have until about 3.45, perhaps two or three minutes more.

6 Ms. Brady.

7 MS. BRADY: Thank you. Thank you, Your Honours.

8 Your Honours, this afternoon I'll be addressing the Prosecution's

9 first two grounds of appeal, both of which concern joint criminal

10 enterprise. Since it's only ground 2 which directly affects the accused's

11 conviction, I'll be addressing that first and then after that I'll turn to

12 ground 1.

13 Following my submissions, my colleague Ms. Margetts will address

14 you on grounds 3 and 4, and then just to give you a road map for tomorrow

15 when we're responding to the Appellant's appeal, Mr. Kremer will be

16 responding on behalf of the Prosecution, and Ms. Goy as well, and in the

17 course of that Ms. Goy will answer Your Honours' question concerning

18 omission liability.

19 Before I turn directly to our first grounds, I'd like to give a

20 brief overview of them and especially how they interrelate.

21 In ground 2, we argue that the Trial Chamber erred in requiring

22 that there be a direct agreement between JCE members in order to establish

23 that there was a common criminal plan or purpose, and in ground 1 we argue

24 that the Trial Chamber erred in requiring physical perpetrators to be

25 members of the JCE. Both grounds raise very important -- a very important

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1 question; namely, whether JCE can apply to accused persons in

2 hierarchically senior levels for crimes carried out on a vast scale by

3 perpetrators who are structurally or physically removed from them.

4 This Appeals Chamber has repeatedly affirmed that JCE can apply to

5 hold accused responsible for large-scale crimes. Indeed, nationwide

6 enterprises, as the ICTR affirmed in the Rwamakuba, 22 October 2004

7 decision on JCE and genocide.

8 The Appeals Chamber has already applied JCE to convict somebody at

9 the level of leadership of a military corps; that is, General Krstic. The

10 Appeals Chamber has also used or -- to convict or to confirm the

11 convictions of somebody at the level as high as a municipal leader level;

12 that is, Mr. Stakic. This case represents, in effect, the next level up,

13 and at issue in both of our two grounds is: What are the proper limits of

14 JCE?

15 In our submission, the Trial Chamber erroneously limited JCE in

16 two ways: By requiring that the physical perpetrators be members of the

17 JCE; and requiring that there be this direct or one-to-one agreement

18 between JCE members.

19 Proper limits on the use of JCE, ensuring that only the truly

20 culpable are liable, flow from the correct, the proper application of the

21 elements of JCE. The Trial Chamber's approach would effectively paralyse

22 JCE's use for the most senior leaders.

23 Your Honours will recall that Mr. Brdjanin was tried on the basis

24 of his participation in a -- what we could call a large JCE whose members

25 included republic leaders, regional leaders, and municipal leaders, and

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1 the physical perpetrators themselves, the named ones, the identified ones,

2 being the Bosnian Serb military and paramilitary forces. And at trial,

3 the Prosecution proceeded on the understanding that both Brdjanin and the

4 physical perpetrators did have to be members of the JCE in order to

5 attribute their crimes to Mr. Brdjanin under JCE.

6 Had it not been for this, had it not been for the Prosecution's

7 understanding, the Trial Chamber would have had two ways to apply JCE to

8 these facts, and both would have been legally valid.

9 One way, and this is the way that the Trial Chamber did -- did

10 use, this was the Trial Chamber's approach, was to examine if crimes were

11 carried out by the physical perpetrators in execution of a criminal

12 purpose which they and Mr. Brdjanin had in common. In other words, to

13 examine whether the physical perpetrators were members of the JCE. And as

14 I'll explain in ground 2, the Trial Chamber's incorrect approach to this

15 element of common criminal plan or purpose requiring a direct or

16 one-to-one agreement between the JCE members led it to erroneously dismiss

17 JCE and to convict him merely for aiding and abetting.

18 This gravely understated Mr. Brdjanin's culpability. As president

19 of the ARK Crisis Staff, he was a leading coordinator and implementer of

20 ethnic cleansing in the Bosnian Krajina. Had the Trial Chamber properly

21 approached common criminal plan, it should have convicted him for

22 committing these crimes under JCE.

23 The second way in which the Trial Chamber could have approached

24 this case, and again had it not been for the Prosecution's understanding

25 at trial, would have been to examine whether the members of a leadership

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1 JCE acted through the instrumentality of the physical perpetrators. This

2 is an equally legally valid way which does not require the physical

3 perpetrators to be members of the JCE. And as I'll explain in our first

4 ground, liability for the criminal actions of persons not in a JCE can be

5 attributed to members of the JCE if the former were used as tools by

6 members of the JCE to make their contributions to it, to the JCE.

7 Now, although most cases, most cases which come before this

8 Tribunal can be analysed in accordance with the first approach, the one

9 the Trial Chamber took but for the error it made in requiring a direct

10 agreement, that is, most cases can be analysed as a large-scale,

11 all-encompassing JCE. However, the second approach which emphasises the

12 role of the leadership in using physical perpetrators as mere tools may

13 better reflect the reality of the facts that this Tribunal is so

14 frequently confronted with.

15 I'll now turn to address each ground, and as I mentioned at the

16 start of my submissions, since it's only ground 2 that directly affects

17 the conviction of this accused, I'll turn to that first, and then

18 afterwards I'll address on ground 1, which is raised as a matter of

19 significance to the Tribunal's jurisprudence.

20 Turning then to ground 2.

21 The Trial Chamber effectively required a direct or one-to-one

22 agreement between JCE members in order to establish that they had a common

23 criminal plan or purpose. And since the trial proceeded on the basis that

24 Brdjanin was in a JCE with physical perpetrators, that is the Bosnian Serb

25 army and the paramilitary forces, this meant that the Trial Chamber was

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1 requiring, was looking for a direct agreement between the accused and

2 those physical perpetrators. In doing so, it applied the wrong standard.

3 We've set out the correct legal standard, not just in our appeal

4 brief but in our written filing dated the 13th of November in which we

5 answered Your Honours', the Appeals Chamber's, question. Individuals have

6 a common plan or purpose when they pursue the same criminal plan or

7 purpose and act jointly to achieve it. There's no issue -- we have no

8 issue that JCE members must have some form of understanding or agreement

9 to commit a crime, rather, with how the Trial Chamber interpreted that

10 notion.

11 Agreement in the context of JCE means that JCE members have a

12 common criminal plan or purpose. If the evidence proves that all JCE

13 members adopted the same criminal plan and acted jointly to implement it,

14 the plan is common. The agreement, the understanding, is found. There's

15 no need to prove that JCE members entered into a one-to-one arrangement.

16 Brdjanin and the physical perpetrators did act pursuant to a

17 common criminal plan. Had the Trial Chamber not erroneously required a

18 direct agreement, it would have found a JCE, and as we've shown in our

19 written answer to Your Honours' question, all elements of JCE are met, and

20 he should be liable under JCE I for persecution, based on deportation and

21 forcible transfer, and JCE III for all the other crimes insofar as

22 committed by the military and the paramilitary forces. And these exact

23 crimes, a listing of these crimes, are set out in the annexes to our

24 appeal brief, and we filed public and revised versions of these on the

25 5th of December this week.

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1 I'd like to first address in more detail how the Trial Chamber

2 erred and then to outline the proper approach that the Trial Chamber

3 should have taken.

4 The Trial Chamber correctly acknowledged that the agreement or

5 understanding need not be previously arranged. It could materialise

6 extemporaneously. It didn't have to be express, it would be inferred.

7 However, it's clear from paragraphs 340 to 355 of the judgement

8 that the Trial Chamber thought that JCE members had to have this congruent

9 state of mind, this "agreement," as a result of some kind of direct or

10 one-to-one interaction between them.

11 I would like to take Your Honours, if I may, to the judgement to

12 illustrate the point.

13 In paragraph 351 of the judgement, the third line of that

14 paragraph, paragraph 351 speaks in terms of the JCE members having to

15 have "an arrangement between them to commit a concrete crime."

16 Turning over the page to paragraph 354 is also very revealing.

17 The Trial Chamber refers in that paragraph three times, three times, to

18 not being satisfied that the accused and the physical

19 perpetrators "entered into" an agreement. Or entering into, enter into,

20 entering into, entered into. I think they're the grammatical uses of the

21 word "enter" in that paragraph.

22 These are very active words, suggesting that the Trial Chamber

23 required direct or one-to-one interaction between JCE members.

24 And finally, Your Honours, in footnote 691 of the judgement, the

25 Trial Chamber there makes an interpretation of the Krnojelac appeals

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1 judgement as distinguishing between what it calls the "more or less formal

2 agreement" between JCE members which is needed for the first two -- excuse

3 me, for the categories JCE I and III versus the involvement in a system of

4 ill treatment needed for JCE II.

5 What this reveals is that the Trial Chamber was interpreting

6 "agreement" as if it was -- as if it was some kind of formal contract.

7 Direct agreement of this nature is not required. Rather, the individuals

8 must adopt the same criminal plan or purpose and act jointly to achieve

9 it.

10 The Trial Chamber's error seems to have arisen because it viewed

11 JCE as more appropriate for smaller cases and not for large-scale cases.

12 In small cases, where JCE members have direct contact with each other,

13 where they can speak to each other or they commit crimes in each other's

14 presence, it may be clearer or it may be easier to infer they agreed with

15 each other and they acted jointly to further the plan, but JCE applies

16 equally in large cases where JCE members operate structurally or

17 physically apart.

18 The Appeals Chamber has repeatedly endorsed that. Right from the

19 start, in the Tadic case the Appeals Chamber recognised that in fact JCE

20 was warranted by the very nature of international crimes which it called

21 manifestations of collective criminality. Likewise, the ICTR Appeals

22 Chamber in the Rwamakuba decision, which I mentioned, and the Karemera JCE

23 decision on the 12th of April this year reiterated that JCE is not limited

24 to smaller cases and can be applied to criminal enterprises on a vast

25 scale.

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1 The JCE here did encompass a geographically very large area, the

2 Bosnian Krajina region. But those in the Krstic case and the Stakic case

3 can hardly be described as small, and in those cases this Chamber upheld

4 the Trial Chamber conviction or entered its own conviction based on JCE

5 without finding this direct agreement between the accused and the physical

6 perpetrators. I also point Your Honours to the ICTR Trial Chamber

7 decision in Simba, and the ICTY Trial Chamber decision in Simic which did

8 the same thing.

9 Likewise, in the World War II cases, high-level accused were held

10 responsible for large-scale crimes without establishing a direct agreement

11 between participants. The physical perpetrators were rarely inquired

12 into. The issue was more looked at through the lens of the accused, and

13 what was essential was his knowledge of the criminal plan and his

14 connector or contribution to the crimes.

15 So what is the correct approach, then, to common criminal plan or

16 purpose?

17 As I've said, the element is established when JCE members have the

18 same criminal plan or purpose and act jointly to achieve it. In that

19 case, it's fair to attribute liability because there is a sufficient

20 connection between the persons who physically committed the crimes and the

21 accused. They're acting together toward the common purpose.

22 The Krajisnik Trial Chamber articulated this well recently. It

23 said: "A common objective begins to turn a plurality of persons into a

24 group, but this will not always determine a group, as different and

25 independent groups can chair identical objectives."

Page 57

1 Your Honours, if I could ask you to turn on -- apparently you have

2 to press the e-court button, and on the slide there you'll see that

3 the -- what the Trial Chamber in Krajisnik said at paragraph 884. It

4 said: "Rather, it is the international or cooperation among persons -

5 their joint action - in addition to their common objective that makes

6 those persons a group. The persons in a criminal enterprise must be shown

7 to act together or in concert with each other in the implementation of a

8 common objective if they are to share responsibility for the crimes

9 committed through the JCE."

10 Now, of course this will always depend on the evidence.

11 The Krajisnik judgement itself at paragraph 1081 gives a useful

12 list of factors which can give rise to the inference that people are

13 working together to implement a common objective. And they're factors --

14 it's not an exhaustive list, but they're factors such as the crimes follow

15 a similar pattern, the crimes are done against similar victims, they're

16 done at a similar time, the crimes are done in cooperation or in

17 conjunction with other JCE members, the perpetrators were associated with

18 organised bodies or members of groups connected to the JCE. There was a

19 lack of punishment of the crimes by people -- members of the JCE who could

20 do so and a continued affiliation with the perpetrators, the physical

21 perpetrators, by the JCE members. That's not an exhaustive list.

22 Obviously it will depend on the evidence.

23 To conclude on this ground, and I'd like to turn briefly to look

24 at the impact of the Trial Chamber's error, and as Your Honour has

25 mentioned, we provided a written answer to this question.

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1 In our submission, the facts found by the Trial Chamber establish

2 that Brdjanin and the physical perpetrators adopted the same criminal

3 purpose; that is, to forcibly displace non-Serbs from the region, and

4 acted together to achieve it.

5 Now, Your Honours asked for us not to repeat those written

6 submissions, and I don't intend to, but in brief, the Trial Chamber's

7 findings establish, firstly, that Brdjanin and the physical perpetrators

8 adopted the same criminal purpose, to create an ethnically pure Serb

9 region by ensuring that non-Serbs were forcibly transferred from the

10 region.

11 There are many findings to this effect, but a particularly apt one

12 was at paragraph 118, where the Trial Chamber observed that: "The ethnic

13 cleansing was not a by-product of the criminal activity, it was its very

14 aim and thus an integral part of the strategic plan."

15 Secondly, Brdjanin and the physical perpetrators acted jointly to

16 achieve this criminal purpose. Again, many findings are made by the Trial

17 Chamber which establish, which show this fact was proven. As one of the

18 most compelling of these findings, the Trial Chamber, at paragraph 353

19 said that: "The accused and the relevant physical perpetrators acted in

20 unison to implement the strategic plan."

21 And at paragraph 100: "The crimes came about" -- "The crimes came

22 about through close cooperation between the Bosnian Serb police, the army,

23 and the Serbian paramilitary groups. The clearly recognisable pattern of

24 criminal activity allows for only one reasonable conclusion: That these

25 crimes were committed with the aim of implementing the strategic plan of

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1 the Bosnian Serb leadership to permanently remove most non-Serbs from this

2 territory."

3 Thirdly, in terms of contribution, Brdjanin clearly contributed to

4 this JCE. The role he played in coordinating the implementation of the

5 strategic plan in the municipalities was described by the Trial Chamber

6 itself at paragraph 320 as a substantial contribution to the

7 implementation of the plan. Apart from that, he also contributed by his

8 hateful propaganda and by the ARK Crisis Staff decisions, those on

9 dismissals, those on disarmaments of -- which was -- which were

10 discriminantly imposed upon non-Serbs, and by the decisions on the

11 resettlements of non-Serbs. The physical perpetrators contributed to the

12 JCE by their crimes.

13 Finally, fourthly, both Brdjanin act physical perpetrators

14 intended to persecute the non-Serbs by forcibly transferring them and

15 deporting them.

16 In paragraph 549, the Trial Chamber found: "The evidence shows

17 the displacement of persons was not simply the consequence of military

18 action but the aim of it."

19 And the persecutory, the findings on persecutory intent on both

20 the side of Brdjanin and the physical perpetrators can be found at

21 paragraphs 1028 and 1053.

22 So on this basis can be found -- Brdjanin should be found liable

23 for JCE I for persecution based on deportation and forcible transfer.

24 Further, it was foreseeable, and it was foreseen by Brdjanin that

25 other crimes, including the persecution based on the other underlying

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1 acts, killings, torture, wanton destruction, destruction of religious

2 institutions would occur in executing the common criminal purpose.

3 We provided a very detailed answer to this in our written

4 submissions, and for these he should be liable under JCE III.

5 The very last point I'll make on this ground, Your Honours, is

6 that we have asked Your Honours to impose a higher sentence to reflect his

7 liability based on JCE rather than aiding and abetting.

8 If I may, Your Honours, now turn to ground 1, and this is the

9 ground that -- on which we argue that the physical perpetrators need not

10 be members of the joint criminal enterprise.

11 As I said at the start, this ground will not affect the conviction

12 of Mr. Brdjanin, but it will significantly affect JCE's application to

13 senior leaders in the context of large-scale crimes.

14 The Trial Chamber erred in law in requiring that the physical

15 perpetrators must be members of the JCE. The findings that are in error

16 are paragraphs 344 and 347.

17 It's true that in many cases the physical perpetrators are JCE

18 members. They adopt the common criminal plan, and they act jointly to

19 achieve it, and their crimes can therefore, on that basis, be attributed

20 to the other JCE members. And as I've just shown, this was in fact the

21 case here.

22 However, JCE liability is not confined to these situations. The

23 physical perpetrators need not be JCE members. A JCE, to pursue a

24 criminal plan or purpose, may be comprised of members none of whom

25 physically carry out crimes but who use other people to do so. This means

Page 61

1 that a JCE may exist entirely at a leadership level. If such persons have

2 agreed amongst themselves on a common criminal plan and carried out

3 through others, they can be liable under JCE. There's no need to even

4 inquire into whether the physical perpetrators agreed to or even knew of

5 their criminal plan.

6 One important goal of international criminal law is to punish

7 those most responsible for crimes and to accurately reflect their role in

8 terms of the law. Requiring that physical perpetrators must be in the JCE

9 does not reflect how international crimes typically occur by a multitude

10 of people orchestrated or coordinated by those who are the most

11 responsible at a senior -- a hierarchically senior level.

12 Those on the higher level who have agreed on the criminal goal,

13 they don't carry out the crimes themselves. Instead, they implement their

14 plan by using the means at their disposal; the army, the police units,

15 civilian authorities, paramilitaries and the like. And those high-level

16 people will usually be physically remote from the actual perpetration of

17 the crimes.

18 While the physical perpetrators may often agree with the purpose

19 of the high-level perpetrators, the high-level people, the reality is that

20 very often the high-level perpetrators make the decisions and then use the

21 physical perpetrators as a way to implement those decisions. And

22 moreover, in other cases high-level perpetrators may in fact use physical

23 perpetrators who do not even necessarily adopt the criminal purpose, or it

24 can't be proved that they adopted the criminal purpose, yet through their

25 combined actions the high-level accused exactly achieve their criminal

Page 62

1 goal.

2 Ordering, planning, instigating, Article 7(3) liability, these may

3 apply, but they don't always capture the true situation and the true

4 culpability of the high-level offenders.

5 On the other hand, using aiding and abetting to characterise these

6 high-level accused is inappropriate. Not only does this mode of liability

7 incur a lesser degree of culpability in this Tribunal, it denies full

8 responsibility for commission.

9 In our submission, it's contrary to the objects and purposes of

10 international criminal law that commission liability should pivot or

11 depend on whether physical perpetrators were in the JCE and that the

12 liability of senior leaders should depend on what is or is not in the mind

13 of soldiers or policemen on the ground. The focus must be on the mind and

14 the acts of the senior leaders, and the doctrine should apply when these

15 JCE members further the common criminal plan by using the others as tools

16 to carry out their crimes.

17 This reflects the reality of international crimes, and it furthers

18 the culpability principle by placing criminal responsibility squarely on

19 the shoulders of those who are or should be the most responsible.

20 I'd like to take Your Honours now to ICTY cases, particularly

21 recent ones which support our position.

22 In their response to our appeal, the Association of Defence

23 Counsel has emphasised that Tadic decision, and Furundzija decision, in

24 those cases the physical perpetrators were members of the JCE, and they

25 also highlight certain findings in the Tadic judgement, indicating that

Page 63

1 the physical perpetrator must have agreed with the accused on the common

2 criminal purpose.

3 We don't dispute this, but we do disagree that these cases limit

4 JCE in the manner that they suggest. As His Honour Judge Bonomy

5 recognised in his separate opinion in the Milutinovic case on the 22nd of

6 March this year, these cases, such as Tadic and Furundzija, had no need to

7 address the more complex factual situations since the JCEs there comprised

8 a small group of active participants.

9 Of much more interest is that the Appeals Chamber has used JCE to

10 convict or affirm the convictions of accused for large-scale crimes in

11 circumstances where the common criminal purpose existed only, only among

12 those on the same hierarchical level and without establishing that the

13 physical perpetrators were also members of the JCE.

14 We've already referred in our appeal brief to the Krstic case, as

15 Your Honours are well acquainted with. There the Appeals Chamber

16 confirmed the convictions under JCE, even though there the JCE comprised

17 only the high-level people, Mladic and the VRS Main Staff members, and

18 without determining whether the physical perpetrators were in the JCE. In

19 fact, the Chamber at one point describing Krstic as using the Drina Corps

20 personnel as tools to carry out the criminal plan.

21 Most significantly, this Chamber recently took this approach in

22 the Stakic appeals judgement. As Your Honours will show, the Trial

23 Chamber in Stakic had applied indirect perpetration in order to attribute

24 the acts of the physical perpetrators to a small group of high-level

25 co-perpetrators. That's what the Trial Chamber did.

Page 64

1 And if Your Honours could go to your screens again. There's a

2 slide we've prepared which pictorially represents what the Trial Chamber

3 effective did.

4 The co-perpetrators at a hierarchically senior level and the

5 physical perpetrators indirectly perpetrating -- sorry, the

6 co-perpetrators indirectly perpetrating their crimes through the physical

7 perpetrators.

8 Now, the Appeals Chamber corrected the Trial Chamber to the extent

9 that the Trial Chamber had applied the wrong mode of co-perpetration with

10 regard to the group of high-level co-perpetrators. The mode that the

11 Trial Chamber had described this was co-perpetration by joint control over

12 the act. The Appeals Chamber substituted JCE to uphold Stakic's

13 convictions.

14 And if Your Honours could turn back to your screens, the slide

15 which will appear in front of you depicts what the Appeals Chamber

16 basically did. Hopefully. Yes, there it is.

17 So it substituted the JCE at the level of the high-level

18 perpetrators.

19 However --

20 JUDGE MERON: I'm not sure we got it.

21 MS. BRADY: Okay.

22 JUDGE MERON: We just got the first slide.

23 MS. BRADY: It's an interactive slide. One slide moves into the

24 other. We can do it again.

25 The first slide shows -- you should have the first slide. This is

Page 65

1 the Trial Chamber's findings, and then it moves into what the Appeals

2 Chamber basically did.

3 JUDGE MERON: Yes. That's okay.

4 MS. BRADY: Okay.

5 However, significantly the Appeals Chamber, in changing the mode

6 from co-perpetration at that level to JCE, the Appeals Chamber left

7 untouched, or another way of putting this is it didn't feel the need to

8 correct the Trial Chamber's findings in paragraphs 741 to 743 and 746

9 and 818, where the Trial Chamber had explained that Stakic and his

10 co-perpetrators carried out their crimes indirectly through the physical

11 perpetrators who were used as tools.

12 Neither the Trial Chamber -- this is very important, because

13 neither the Trial Chamber nor the Appeals Chamber in Stakic analysed the

14 physical perpetrators in that case as JCE members. There were no findings

15 that the physical perpetrators had agreed to the common criminal plan to

16 deport or had the intent to deport. They were findings that they had the

17 discriminatory intent but not -- there were no findings on the intent to

18 deport. Rather, the Appeals Chamber identified as the JCE members Stakic

19 and the other municipal leaders, the chief of police and the prominent

20 members of the military. Nevertheless, the Appeals Chamber in Stakic

21 found Mr. Stakic liable for the crimes of the physical perpetrators

22 through the application of JCE.

23 Therefore, in Stakic the Appeals Chamber recognised that physical

24 perpetrators are not required to be members of the JCE but, rather, that

25 those who are JCE members can perpetrate crimes through them. The case

Page 66

1 endorses a JCE at a leadership level whose members used physical

2 perpetrators to carry out crimes in furtherance of the JCE's objective.

3 Judge Bonomy in his separate opinion in the Milutinovic case also

4 endorsed this approach, finding no inconsistency in -- with Tribunal

5 jurisprudence for a participant in a JCE to be found guilty of commission

6 where crimes are perpetrated by persons who are not members of the JCE but

7 who act as the instruments of it.

8 Finally, Your Honours, the case of Krajisnik. The Trial Chamber

9 in that case also took this approach. It found Mr. Krajisnik criminally

10 responsible for persecution and extermination on the basis that the JCE

11 members were the republic, the regional and the municipal leaders. It

12 didn't find it possible or - and this is important - even desirable or

13 necessary to find that the physical perpetrators of the crimes were also

14 members of the JCE.

15 In paragraph 883 -- and I invite Your Honours to again look at

16 your screens. In paragraph 883 the Krajisnik trial judgement

17 held: "Moreover, a JCE may exist even if none or only some of the

18 principal perpetrators are part of it, because, for example, they are not

19 aware of the JCE or its objective and are procured by members of the JCE

20 to commit crimes which further that objective."

21 Why? Why could it reach this conclusion? Because it held that an

22 accused could participate in implementing the common criminal objective

23 either by himself committing a crime, forming part of the common

24 objective, or by procuring or giving assistance to the execution of a

25 crime forming the common objective.

Page 67

1 The position we're advocating is also supported by World War II

2 precedents.

3 It's true that post-World War II cases did not explicitly apply

4 JCE by its name. They determined responsibility more on the basis of

5 criminal participation than on a strict application of modes of liability.

6 But as this Chamber, the ICTR Appeals Chamber observed in the Rwamakuba

7 case, the legal elements used by those cases to find accused liable were

8 sufficiently similar to JCE, such as to define JCE's contours.

9 And what clearly emerges from these World War II cases is that

10 high-level accused who agreed to a criminal plan and contributed to it

11 were held responsible for the physical perpetrators who carried out the

12 crimes of the plan. This was regardless, regardless of whether the

13 physical perpetrators were part of formulating that plan or agreed with or

14 acted on behalf of the common purpose. In fact, what was in their minds

15 or their criminal liability was rarely discussed.

16 We've referred in our appeal brief to two cases under control

17 Council Law Number 10 which illustrate this, so I won't go into any detail

18 now because we have handled it at quite some length in our appeal brief.

19 But just to summarise, both of these cases, Rusha case and the Justice

20 case, accused were held liable for the physical perpetrators' actions

21 without even considering whether they adhered to the criminal plan; that

22 is, without finding that they were members of the criminal enterprise.

23 The final question or issue I want to turn to in this ground is

24 this: How, then, can crimes of physical perpetrators who are not members

25 of the JCE be attributed to the members of the JCE? How does that make

Page 68

1 sense legally?

2 A member of a JCE can contribute to the JCE either directly or

3 indirectly through other people. There's no difference in principle if an

4 accused uses a bomb or himself places a barricade or uses a police or

5 military unit.

6 The actions of physical perpetrators can be linked to members of a

7 JCE by indirect perpetration. If an accused in a JCE uses another person

8 as his instrument, the instrument's actions become his actions. They

9 become his contributions to the JCE and, as such, they can be imputed to

10 all JCE members.

11 Notably the Association of Defence Counsel concede in their

12 response to our appeal that the physical perpetrator of a crime need not

13 be a member of the JCE where he or she is used as a tool or instrument to

14 do so by someone who is a member of the JCE. In that case, they agree

15 that JCE members can be attributed with their crimes.

16 Virtually all systems, all legal system, recognise an accused can

17 commit acts by indirectly perpetrating them. Your Honour, Judge

18 Shahabuddeen, in your separate opinion in the Gacumbitsi ICTR appeals case

19 put it very nicely when you recognised that: "Just as a person can use a

20 JCE as his instrument through which he performs a crime, so too an accused

21 can" - I quote from Your Honour at paragraph 24 - "perpetrate his crime

22 through the instrumentality of another, even though no JCE is involved and

23 though there is no personal contact between the accused and the victim."

24 It's almost universally accepted in national systems that an

25 accused can be liable if he uses another person as a tool to commit a

Page 69

1 crime. And I refer to our authorities in our appeal brief citing to a

2 number of jurisdictions, as well as in our supplemental book of

3 authorities referring to another two jurisdictions in addition to those in

4 our appeal brief.

5 There are jurisdictions which limit indirect perpetration to

6 innocent agents, while others recognise that even culpable physical

7 perpetrators can also function as tools of a person who somehow controls

8 their acts.

9 For example, by using a structure of power to carry out his

10 crimes, such as in the Border Guards case in -- where high-ranking GDR

11 politicians were found responsible by the German Supreme Court as

12 commiters for the killings by the border guards at the East German border.

13 It's also very significant that the ICC also recognises in their

14 Rome Statute Article 25(3)(a) that someone can commit a crime through

15 another person regardless of whether that person is criminally

16 responsible. And that theory is -- is one presently being pursued in the

17 Lubanga case at the ICC, and in fact it's being used in combination both

18 with what -- the ICC's equivalent of co-perpetration by joint control but

19 also in combination with their equivalent of JCE, which is in

20 Article 25(3)(d) of the Rome Statute.

21 To conclude on this, Your Honours, the physical perpetrators need

22 not be members of the JCE in order to attribute their crimes to those in a

23 JCE. If the JCE members agree on a common criminal goal and use others to

24 carry out acts in pursuance of their criminal goal, those acts can be

25 ascribed to all members of the JCE.

Page 70

1 Those conclude my submissions, and I'd be happy to answer

2 questions Your Honours may have.

3 JUDGE MERON: I would invite my colleagues to ask questions on

4 this complex of joint criminal enterprise.

5 Judge Shahabuddeen, please.

6 JUDGE SHAHABUDDEEN: Would I be correct, Ms. Brady, in

7 understanding the burden of your submissions to be this: That if A has a

8 one-to-one agreement with B to commit a particular crime and that

9 crime is committed by B, his criminal responsibility does not depend at

10 all upon JCE, it depends upon the normal principles of criminal liability,

11 including, in particular, agency.

12 Would that be an appreciation of the burden of your submissions?

13 MS. BRADY: Well, Your Honours, I think that there are two ways of

14 viewing the matter. Either A and B have this agreement, one-to-one

15 agreement to commit a crime and they both jointly act, they both make a

16 contribution and therefore they can be liable under JCE; or Your Honour is

17 quite correct, that A and B can have an agreement. I don't think it

18 actually has to be a one-to-one, but it can be inferred that they have a

19 common agreement together, and then B either commits the crime himself or

20 he does it through somebody else, and in that case, yes, I think there is

21 an agency principle underlying the situation. But they are -- they are

22 two different ways of approaching the problem.

23 JUDGE SHAHABUDDEEN: Well, we can deal separately with the

24 proposition involving an outsider to the JCE whose actions are in

25 question.

Page 71

1 What I have in mind is this: It seems to me it all turns upon the

2 notion of an agreement, depending on the circumstances, the law can

3 extrapolate the existence of an agreement from a variety of factors. What

4 makes the difference in this case is your reference to the Trial Chamber's

5 insistence that there has to be a one-to-one agreement between one member

6 of the JCE and another member of the JCE to commit a particular crime, but

7 in both situations there is an agreement. What makes the difference in

8 this case from your submissions is the insistence of the Trial Chamber

9 that JCE is applicable only when there is a particular kind of agreement.

10 MS. BRADY: Your Honour is quite right. For, as I said, the

11 majority of cases, it will amount to the same thing because the agreement

12 can be -- it was definitely very problematic, the Trial Chamber's use of

13 this one-to-one agreement. That was its first error. It was problematic

14 because it was requiring something which is -- it's too much. It's

15 impossible to find this one-to-one agreement. That was problematic.

16 In most cases you're correct. The people on the ground, the

17 physical perpetrators, will agree with the common plan. They will agree

18 with the person A in your example. But not in every case. And that's

19 why, for example, there may be physical perpetrators who don't even --

20 they're not even aware of how they're being used.

21 Not here. In this case the facts were clear. The physical

22 perpetrators shared the agreement. They were in the agreement. So that

23 approach "works" for this case.

24 However, there may be cases where it does not and that was the

25 import of my submissions when I was speaking about ground 1 and why it is

Page 72

1 important not to always require that the physical perpetrator be

2 necessarily in the JCE, because he may be used. He may not -- he may not

3 share it. He may be directed. He may be ordered. And this is actually

4 the type of situations that we are confronted with in the Tribunal very

5 often. These are the factual cases that are before us.

6 JUDGE SHAHABUDDEEN: Let me ask you a third question. Would I be

7 right from the impression I've formed of your submissions that the problem

8 is this: A and B are both members of a JCE. B then gets an outsider to

9 commit a JCE type of crime, and then what is involved is the criminal

10 responsibility of A.

11 Now, I have the impression that the difficulty is this: That the

12 criminal responsibility of A is erroneously focused on the criminal

13 responsibility of the outsider. A only has a criminal responsibility for

14 the crime committed by a fellow member of the JCE, but that fellow, that

15 fellow member of the JCE may well have a criminal responsibility for the

16 outsider's crime.

17 Is that a correct way of analysing the --

18 MS. BRADY: It is. It is a correct way of analysing our position,

19 Your Honour.

20 JUDGE SHAHABUDDEEN: Thank you. Thank you.

21 JUDGE MERON: Judge Van Den Wyngaert.


23 Ms. Brady, if I understand you correctly, your position is that

24 the Trial Chamber erred, your ground 1, by not applying the principle that

25 the RPP -- or by requiring that the RPP should have been a member of the

Page 73

1 JCE.

2 My question is: You seem to apply that to the three forms of JCE,

3 one, two, and three, because your submission is that the Trial Chamber

4 should have applied the JCE III to the greatest number of the charges.

5 My question is in the authorities that you quote both in the

6 post-Second World War jurisprudence and in our own jurisprudence, what are

7 the examples that are relevant for JCE III? I can see JCE II and I,

8 especially I, but JCE III, what would be the cases, the precedents that we

9 were to follow if we were to follow you on that point? Thank you.

10 MS. BRADY: In relation to the World War II cases, such as the

11 ones of the Justice case and the Rusha case, the co-perpetrators who were

12 responsible for crimes which indeed did fall within the common plan, the

13 extermination plan in relation to the Justice case, and the same thing for

14 the Rusha case.

15 I can't at this point point Your Honour in a direction towards a

16 specific case, a specific World War II case that would have applied --

17 that would have allowed for responsibility for crime that

18 wasn't "intended" but was foreseen.

19 I would make the observation that the World War II cases are

20 dealing -- are using knowledge as their basis for mens rea, not intention

21 in the strict sense. As you'll recall, our jurisprudence requires for

22 JCE 1, the aiming at type of intent, the World War II cases for knowledge.

23 So already there is a precedent for there being a slightly lower mens rea

24 under those World War II cases.

25 However, what we say about the World War II cases is that they do

Page 74

1 not necessarily restrict you -- you can have -- when you're interpreting

2 JCE, JCE is clearly -- JCE is clearly established under customary

3 international law. This case raises an aspect of JCE's application, and

4 as the Chamber emphasised in the Hadzihasanovic command decision, it's not

5 an objection to the application of the principle to a particular situation

6 to say that the situation is new if it reasonably falls within the

7 application of the principle.

8 Your Honour Judge Shahabuddeen in the Stakic dissenting opinion

9 gave several examples where there'd been this -- that the principle is

10 established under customary international law and this is an application.

11 This is an interpretation to apply it to these facts.

12 In addition, Your Honour, we note that the Stakic Appeals Chamber,

13 which is a binding precedent, of course, on us for this case, this

14 judgement applied JCE III and in effect indirect perpetration, and that,

15 in our submission, would also take care of it in -- on this case.

16 JUDGE VAN DEN WYNGAERT: So to be absolutely clear, your

17 proposition is that this is now part of customary international law. So

18 the contours of JCE, as you describe them, are defined as such by

19 customary international law.

20 MS. BRADY: Your Honour, yes, that's our primary position. It is

21 customary international law, and especially in terms of how customary

22 international -- how it can be interpreted on these supposedly new facts.

23 It actually what happened in Stakic, but that's our first position.

24 There's also another way of looking at the issue. In our

25 submission, the principle of JCE is customary international law, and of

Page 75

1 course this Chamber can have recourse to general principles of law to

2 determine the scope of parameters of application. This was done by the

3 Furundzija Trial Chamber, looked to principles of criminal law common to

4 major legal systems to define the elements of rape. The Chamber did the

5 same -- took the same course in the Blaskic appeals decision in order to

6 distil the mens rea for ordering. And that is also an approach that we

7 would advocate in this case.

8 JUDGE MERON: Judge Guney.

9 JUDGE GUNEY: Ms. Brady, during your submission you argued that

10 the forcible transfer or deportation may be amounted to the most tenuous

11 crime, which is the crime of the crimes genocide. Is it correct -- am I

12 correct in my recollection?

13 MS. BRADY: No, Your Honour. I didn't use the term "genocide" at

14 all in my submissions, except in relation to referring to a decision of

15 Karemera on JCE and genocide. But I didn't actually say that genocide was

16 involved. Because, of course, it wasn't found in this case.

17 JUDGE GUNEY: Okay. Then I'm not going to put the second question

18 in the light of your explanation. Thank you.

19 JUDGE MERON: Thank you, Judge Guney.

20 Judge Vaz.

21 JUDGE VAZ: [Interpretation] Thank you, Mr. President.

22 Ms. Brady, I have a question in relation to the comments you made

23 yesterday -- earlier on when you said that high-ranking accused should be

24 held fully responsible for their actions, and you seemed to exclude the

25 principle of complicity for high-ranking accused. Why would you exclude

Page 76

1 the possibility of complicity as a mode of liability? Because that's the

2 way I understood your comments.

3 MS. BRADY: Your Honour, we wouldn't necessarily exclude

4 complicity or aiding and abetting. Defending on the facts, it may be an

5 appropriate legal characterisation. However, for the majority of cases,

6 what -- what we say is that because aiding and abetting in this Tribunal

7 carries or incurs a lesser degree of responsibility, it's -- it's not

8 appropriate to label people who are essentially the masterminds, the

9 people who are at this high level orchestrating and coordinating. It's an

10 inappropriate label. It doesn't -- it -- it denies the full

11 responsibility concept which commission gives, and that's -- that's why we

12 say that aiding and abetting is just not appropriate to describe

13 perpetrators at this level who are basically the major implementers, the

14 major controllers of the crime, the crimes that occur.

15 JUDGE VAZ: [Interpretation] Thank you very much for this

16 additional information.

17 JUDGE MERON: Thank you, Judge Vaz.

18 I have a question to ask you, if I may.

19 MS. BRADY: Yes.

20 JUDGE MERON: I'm referring to Prosecution's appeal brief,

21 paragraph 348. In that brief, you argue that we should find that the

22 physical perpetrators need not be members of the JCE. You suggested were

23 we to find that physical perpetrators must be members of the JCE it would

24 be, and I quote: "Difficult, if not impossible, to ever convict the

25 seniors leaders based on the JCE."

Page 77

1 And I quote again: "Since the only way of proving that the

2 on-the-ground actor acted with the requisite intent would be to identify

3 each individual actor and put on proof of his intent."

4 And then in your response, the response of the Prosecutor on the

5 JCE, which is a more recent statement, you -- last month you suggested we

6 should -- we should hold that every physical perpetrators here was in fact

7 a member of the JCE, even though you have not identified each individual

8 actor and put on proof of each actor's intent.

9 Could you explain how we should reconcile these two statements or

10 these two positions, which obviously are different?

11 MS. BRADY: Yes, Your Honour.

12 In relation to the first point, I think that in the brief that was

13 filed a couple of years ago, I think we were stating the case a bit highly

14 then. As I've said in my submissions, it is possible to find common

15 criminal plan, and in fact on these facts you can find common criminal

16 plan. You can find the agreement. That can be established, because you

17 can infer it from the pattern.

18 So I think that we put the position a bit too high in terms of --

19 it was a bit dramatic in some ways what we put in our brief about the fact

20 that we would have to call evidence on the intention of every single

21 person on the ground. I think a better way of saying this, and in

22 particular in light of recent jurisprudence which has provided a lot of

23 assistance on this matter, Krajisnik and other decisions, that the

24 intention, the agreement can be inferred from the pattern of crimes, from

25 the fact that they're committed against the same victims at the same time,

Page 78

1 all the factors that I spoke about in my submissions earlier.

2 I think -- on your second question, let me just see if I got it

3 right.

4 JUDGE MERON: It's the same question.

5 MS. BRADY: It's really the same question. Would we have to put

6 on evidence of every single actor's intent, and I think your question was

7 well, where is it in this case? Well, no, we wouldn't have to put on

8 evidence of every single actor's intent, but what must be found, and the

9 facts of the Trial Chamber did find this, it was established, is that the

10 relevant physical perpetrators were acting in accordance with the common

11 criminal plan, and I've set it out -- we've set it out in some detail in

12 the filing. And that is a sufficient way to find agreement and intent,

13 because of course it can be inferred.

14 JUDGE MERON: Thank you. Thank you, Ms. Brady.

15 Do we have any further questions? I do not see any. So I believe

16 that under our Scheduling Order we now should have a break of 15 minutes.

17 So at five minutes past 4.00 sharp we will reconvene.

18 --- Recess taken at 3.47 p.m.

19 --- On resuming at 4.08 p.m.

20 JUDGE MERON: Please be seated.

21 Ms. Brady, the Prosecution strictly speaking, you know that the

22 Prosecution's time is really up, and I believe that you still have two

23 grounds to address. So we will give you 10 minutes for them.

24 MS. BRADY: We're grateful to Your Honour. Ms. Margetts --

25 JUDGE MERON: I think we should all manage our time more

Page 79

1 carefully.

2 MS. BRADY: Yes, indeed. Indeed, Your Honours. And we're

3 grateful to Your Honours for this extra 10 minutes.

4 Your Honours, I now turn to Ms. Margetts, who will address you on

5 the third and the fourth grounds of the Prosecution's appeal.

6 Thank you.

7 JUDGE MERON: Yes. Ms. Margetts, you can start.

8 MS. MARGETTS: Good afternoon, Your Honours.

9 In light of the time, I will only address the Prosecution's fourth

10 ground appeal, extermination, because I believe that our third ground of

11 appeal is fully briefed, and I would just rely on our submissions in the

12 brief. And with respect to Your Honours' question on omission liability

13 relevant to that ground, Ms. Goy will address you tomorrow morning in the

14 Prosecution's response.

15 So I will now turn to the Prosecution's fourth ground of appeal,

16 extermination.

17 Brdjanin should be convicted for aiding and abetting extermination

18 because he was found guilty of aiding and abetting massive killings which

19 individually constitute extermination.

20 The Trial Chamber erred when it acquitted Brdjanin of

21 extermination on two grounds: (1), that he did not have the necessary

22 knowledge that extermination would be committed; and, (2), because

23 extermination was not necessarily envisaged by the strategic plan. The

24 findings are in paragraphs 477 and 478.

25 The Trial Chamber was wrong in its conclusion because it convicted

Page 80

1 Brdjanin of three large-scale killing incidents which were committed

2 during the attacks on villages. The convictions can be found in

3 paragraph 476.

4 These killing incidents are the killing of around 300 victims in

5 Biscani, Prijedor; the killing of 140 victims in Kozarac; and the killing

6 of 68 victims in Brsevo. These killings each individually constitute

7 extermination and the Trial Chamber found that Brdjanin knew of them. The

8 findings are in 474 to 476 of the judgement.

9 This knowledge, in our submission, is sufficient to find him

10 guilty for extermination, because the only difference between

11 extermination and wilful killings is that the extermination requires an

12 element of massiveness to be met. Brdjanin's knowledge of these

13 individual killing incidents already satisfies this massive element that

14 is required. He also knew that his acts would assist in killings on a

15 massive scale.

16 The Trial Chamber found that he knew that the ARK Crisis Staff

17 decisions on disarmament would assist the forces carrying out the

18 large-scale attacks and who committed the large-scale killings that

19 occurred during those attacks.

20 THE INTERPRETER: Could counsel please slow down a little bit.

21 MS. MARGETTS: [Previous translation continues] ... and 474 of the

22 judgement.

23 In addition, for the reasons set out in ground 3 of our written

24 submissions, we submit that Brdjanin also knew and substantially

25 contributed to large-scale killing incidents committed during detention,

Page 81

1 which individually constitute extermination. These killing incidents are

2 referred to in paragraphs 456, 460, and 462 of the judgement. And they

3 are the killing of 190 persons committed in the room 3, Keraterm massacre;

4 the killing of 200 men during the transport from Trnopolje at

5 Koricanska Stijena; and the killing of 144 men in Biljani.

6 Finally, the Trial Chamber was wrong in its conclusion that

7 extermination was not envisaged as part of the execution of the strategic

8 plan because these large-scale killings were committed with the very aim

9 of implementing the strategic plan. The Trial Chamber described these

10 crimes committed in implementation of the plan in paragraphs 100, 104,

11 and 115 of the judgement, which included the killings during attack and

12 the killings in detention facilities.

13 They individually constitute extermination and, therefore,

14 extermination was part of the execution of the strategic plan.

15 Thank you, Your Honours. That concludes my submissions on

16 ground 4. If you have any questions, I would be glad to answer them.

17 JUDGE MERON: Thank you. Thank you for your example of brevity.

18 Questions? I don't see anyone so I think we will now move on.

19 Thank you, Ms. Margetts.

20 MS. MARGETTS: Thank you, Your Honour.

21 JUDGE MERON: We will move on to the response of the Defence. Mr.

22 Ackerman, you have 45 minutes.

23 Mr. Ackerman, since I gave a few more minutes to the Prosecution,

24 I will also try to equalise this, if you need, by giving you a few more

25 minutes.

Page 82

1 MR. ACKERMAN: Well, Your Honour, I appreciate that and I probably

2 won't need it.

3 Good afternoon, Your Honours. It's a pleasure for me to appear

4 before such an august body.

5 I was -- I walked in the courtroom this morning and I was reminded

6 of 40 years ago when I -- I think made my first court appearance as a

7 lawyer. It was in a small town in Wyoming.

8 JUDGE MERON: You realise most of us were not alive yet.

9 MR. ACKERMAN: Yes, Your Honour, that's true.

10 It was in a small town in Wyoming, and we were up on the second

11 floor of an old courthouse with a wooden floor, and the lawyer I was

12 working for was a crusty old western Wyoming lawyer. And there was

13 several law enforcement officers in the room because it was a criminal

14 case. And he stood up and said, Your Honour, I'd like the record to show

15 how many guns they've got and how many guns we've got. And I was reminded

16 of that today when I came in and looked across at the breadth of the

17 Prosecutor's bench over there; how many guns they've got, and how many

18 guns we've got. But we will persist in our proceedings here.

19 I want to -- I want to try to stay within my time, Your Honour,

20 and I think I can do that. I'll talk briefly about some things and a

21 little more at length about others that the Prosecution has talked about.

22 I want to first begin with some of the things that you heard

23 during the Prosecution's argument here today.

24 The Prosecutor told you at page 14, line 5, that -- that the Trial

25 Chamber thought that JCE members had to have this congruent state of mind,

Page 83

1 this agreement, and Your Honours of course know that one of the reasons

2 the Trial Chamber thought that was because that's what the Prosecution

3 thought. That's what they were suggesting to the Trial Chamber at that

4 time.

5 The Prosecution then referred you to paragraph 549 of the

6 judgement as being a very interesting paragraph, and the Prosecution's

7 right, it is an extremely interesting paragraph. You will recall

8 throughout the judgement and throughout the arguments of the Prosecution

9 that Mr. Brdjanin's responsibility primarily hinged upon the disarmament

10 decisions of the ARK Crisis Staff. They rely heavily on disarmament

11 decisions of the ARK Crisis Staff so that for liability to flow from that

12 the attacks would have to have been as a result of those decisions.

13 You look at paragraph 549 and what the Trial Chamber found there,

14 and it is very interesting. Military operations were carried out against

15 towns and villages that were not military targets. Bosnian Serb forces

16 carried out attacks in Prijedor, Sanski Most, Bosanski Novi, Kljuc,

17 Tesalic, and Kotor Varos, among others. And this is the important

18 sentence: "Such military operations were undertaken with the specific

19 purpose to drive Bosnian Muslim and Bosnian Croat residents away. The

20 evidence shows that the displacement of persons was not simply the

21 consequence of military action but the aim of it."

22 The aim of it. Not disarmament, to drive them away.

23 The Prosecution then suggests to you that the -- the view that the

24 Trial Chamber took of JCE did not really reflect the reality of

25 international crimes. I think those were pretty close to the exact words.

Page 84

1 And we operate in a static arena here as regards the law. We have to deal

2 with what was customary international law at the time the events in

3 question occurred, so we can't sit here and change the law when it becomes

4 inconvenient. And the Prosecution argues to you that, Gee, it's this JCE

5 concept that has arisen from Tadic and spread its way throughout the cases

6 up till today is inconvenient because it doesn't permit us to do some of

7 the things we would like to do. Well, that's too bad. If that's what the

8 JCE law is, then that's what it is. And I suggest to you that what it is

9 is what the Tadic Appeals Chamber said it was. And if you go back to the

10 source that the Tadic Appeals Chamber used to derive the concept, you

11 won't find that it can be expanded the way the Prosecution argues here

12 that it should be.

13 The basic Prosecution challenge here is to the Trial Chamber's

14 finding that JCE is not an appropriate mode of liability to describe

15 individual criminal responsibility of the accused given the

16 extraordinarily broad nature of this case where the Prosecution seeks to

17 include within a JCE a person as structurally remote from the commission

18 of the crimes charged as in the indictment -- in the indictment as the

19 accused. In making this finding, the Chamber pointed out in footnote 888

20 of its decision that the accused was both physically remote from the

21 physical perpetrators and that the physical perpetrators were not subject

22 to the structure over which the accused exercised de facto authority.

23 This law that was applied by the Trial Chamber has been the law of

24 JCE in this Tribunal, I suggest since we first saw it in the Tadic appeals

25 decision. The OTP is not suggesting that the Trial Chamber applied the

Page 85

1 law wrongfully, even though that is a smokescreen that they float. At

2 trial, they agreed with the Chamber. Trial Chamber II pre-trial agreed

3 that that was the law in pre-trial rulings in the case, and we'll get to

4 that in a little more detail. And this Appeals Chamber agreed throughout

5 its jurisprudential history that that was the law. So what they're saying

6 is not that the law was misapplied but that you need to change it. You

7 need to expand it because it's inconvenient. This is in effect an effort

8 by the Prosecution to get a whole new concept of JCE established in this

9 Tribunal.

10 To give you a hypothetical example of the extension where the

11 Prosecution seems to want you to go, assume that the mayor of Banja Luka

12 was in an agreement with the SDS leadership regarding the strategic plan,

13 that he made this clear in speeches that he made publicly in Banja Luka,

14 that he was in agreement with the strategic plan, that one part of that

15 strategic plan called for the expulsion of -- of non-Serb persons from the

16 area that was claimed to be a Serbian state, a new Serbian state.

17 Further, way over in Srebrenica some Serb soldiers kill a bunch of

18 non-Serbs.

19 If you take the Prosecution's argument, their logical extension,

20 even though the mayor of Banja Luka had no idea what was going on in

21 Srebrenica, had no way of knowing what was going on this Srebrenica but he

22 was part of the plan, the soldiers were part of the plan, therefore, he

23 must be guilty for what went on over there, because even though he didn't

24 know, they would argue to you that he must have known.

25 It must be borne in mind that at trial the Prosecution agreed with

Page 86

1 the Defence and advised the Trial Chamber that under first category JCE,

2 the physical perpetrators of the crimes alleged in the indictment must

3 have entered into an agreement with the accused. To the extent, then,

4 that this ground of appeal violates that agreement, the second ground of

5 appeal, it cannot affect the outcome of this appeal. The arguments should

6 be overruled.

7 It appears that the Prosecution has misinterpreted the holding of

8 the Trial Chamber to state that JCE is limited to small cases. The key to

9 the holding, it seems to me, is that the ARK Crisis Staff exercised no

10 de facto authority over the physical perpetrators, nor did Mr. Brdjanin,

11 who were not members of the JCE. If, for instance, the structure involved

12 were the Serbian Republic of Bosnia-Herzegovina, and if the president of

13 that entity exercised de facto authority over physical perpetrators who

14 were members of the JCE, then JCE would be appropriate, even though that

15 would be a much wider area than what we're talking about in this case. So

16 that if the president of the Serbian Republic of Bosnia-Herzegovina orders

17 a paramilitary group to go to a specific village in Bosnia and carry out

18 what amount to some war crimes and they do so, there is no reason why

19 under current JCE theory that he could not be convicted for that.

20 The chapeau requirement of a JCE is the existence of a common

21 plan. The dictionary defines "common" as belonging to or shared by two or

22 more persons or things or by all members of a group. "Common" means that

23 all the members of the group share the same goal.

24 The Prosecution proceeded at trial in this case on the basis that

25 JCE must include the physical perpetrators. Clearly there can be no

Page 87

1 conviction entered with regard to JCE I, due to the agreement at trial and

2 the Trial Chamber finding that no perpetrator was a member of the JCE.

3 Thus the only ground for a JCE conviction in this case would be pursuant

4 to JCE III.

5 If you look at paragraph 344 of the judgement, the Trial Chamber

6 judgement, the Trial Chamber made some specific findings regarding JCE III

7 that I think are very important. The Trial Chamber found that the

8 Prosecution did not allege that the accused physically perpetrated any of

9 the crimes charged in the indictment. Therefore, in order to hold the

10 accused criminally responsible for the crimes charged in the indictment

11 pursuant to the first category of JCE, the Prosecution must, inter alia,

12 establish that between the person physically committing a crime and the

13 accused, and these are the operative words, there was an understanding or

14 agreement to commit that particular crime. And that is what the

15 Prosecution agreed was true, was the law.

16 The Chamber then went on to say this: "In order to hold him

17 responsible pursuant to the third category of JCE, the Prosecution must

18 prove that the accused entered into an agreement with a person to commit a

19 particular crime."

20 Exactly the same thing, and exactly the thing the Prosecutor

21 agreed was part of the law of JCE. The only difference between those two

22 being that one could then become responsible for crimes committed beyond

23 the agreement if they were natural and foreseeable consequences of that

24 agreement.

25 So both first category and third category JCE, the Trial Chamber

Page 88

1 found there must be an agreement. This was the proposition acknowledged

2 and stipulated to by the OTP, that the perpetrators had to be part of a

3 JCE. The difference being only that for third category JCE, the accused

4 could be held responsible for a crime that was not part of the agreement.

5 Now, that should be the end of any discussion in this appeal

6 regarding the application of JCE to Mr. Brdjanin. There can be -- there

7 can be a decision in this case regarding JCE that might agree with the

8 Prosecutor's position in some respect, but it can't effect Mr. Brdjanin

9 because of that agreement that was entered into at trial and because of

10 the Prosecution's answer to the Judges' question regarding the law in that

11 regard.

12 And this was not something that arose just at the end of the case

13 as we were preparing for argument. It was made clear that this was the

14 law of the case before the trial ever started in the decision by Judges

15 Hunt, Mumba, and Daqun where they decided, among other things, that

16 between the person who personally perpetrated the further crime charged

17 and the person charged with that crime there was an agreement to commit at

18 least a particular crime, so it could then be determined whether the

19 further crime charged was a natural and foreseeable consequence of

20 executing that agreed crime.

21 I want to turn now to the question that was asked by Your Honours

22 about commission by omission.

23 JUDGE MERON: Excuse me, Mr. Ackerman. Do I understand you to say

24 that even with regard to ground 2 should the Appeals Chamber have a

25 different vision of JCE there can be no consequences regarding the

Page 89

1 culpability or convictions of Mr. Brdjanin?

2 MR. ACKERMAN: Yes, that's what I'm saying. Because the

3 Prosecution agreed at trial that for JCE the perpetrator had to be a

4 member of the JCE. So, no, it cannot go beyond that. There can be no JCE

5 conviction in this case, that's my proposition, because of the

6 stipulation, because of the agreement at trial.

7 JUDGE MERON: Please proceed.

8 MR. ACKERMAN: Thank you.

9 With regard to commission by omission, this issue arises out of

10 paragraph 537 of the Trial Chamber's judgement where the Trial Chamber

11 basically found, although the accused did not actively assist in the

12 commission of any of the crimes committed in camps and detention

13 facilities, in the light of his position as president of the ARK Crisis

14 Staff, the Trial Chamber is satisfied beyond reasonable doubt that his

15 inactivity as well as his public attitude with respect to the camps and

16 detention facilities constituted encouragement and moral support to the

17 members of the army and the police to continue running those camps and

18 detention facilities in the way described to the Trial Chamber throughout

19 the trial.

20 As Your Honours mentioned in the question, the issue was discussed

21 in the Blaskic case at paragraph 663. The notion from Blaskic was then

22 reiterated in the Appeals Chamber decision in the Rwandan case of

23 Ntagerura et al., and most recently the Appeals Chamber in the Galic

24 appeal decision in paragraph 175 noted that it affirms the omission of an

25 act where there is a legal duty to act -- only where there is a legal duty

Page 90

1 to act that can lead to individual criminal responsibility under

2 Article 7(1).

3 The obvious converse of all those pronouncements is that there can

4 be no conviction for an omission where there was no legal duty to act, and

5 that is the case in this Brdjanin case.

6 To convict for an omission requires either a superior-subordinate

7 relationship or the existence of a legal duty. Neither of these

8 requirements exists here.

9 As the Trial Chamber found in footnote 888, which I referred to

10 previously, the Trial Chamber refers to its previous finding that the

11 accused was both physically remote from the physical perpetrators and the

12 latter were not subject to the structure over which the accused exercised

13 de facto authority.

14 At no point in the judgement did the Trial Chamber find that

15 Brdjanin had a superior-subordinate relationship with any of the

16 perpetrators. The Trial Chamber even went so far as to reject any notions

17 that the accused had a duty to report the commission of crime.

18 Paragraphs 375 -- 372, 373, and 375 of the Trial Chamber's

19 judgement touch on these issues.

20 373 talks about there not being a superior-subordinate

21 relationship with members of the SOS or other Serb paramilitary

22 organisations. 372 talks about his relationship with the army and that

23 there was no superior-subordinate relationship there. In 375, the Trial

24 Chamber concludes, quoting: "During the time relevant to the indictment

25 the accused did not have effective control over the police which would

Page 91

1 translate into his material ability to prevent or punish the commission of

2 crimes. There's also no concrete evidence that the accused at any time

3 between April and December 1992 had the duty to report crimes as explained

4 in paragraph 281 of the judgement."

5 Your Honours then asked the Prosecutor this question: Did any

6 members of the JCE commit any of the crimes? The answer to that is a --

7 is a clear and categorical no, they did not.

8 At paragraph 345, the Trial Chamber found: "While the names of

9 the perpetrators have been established in a relatively small number of

10 cases, in most cases the physical perpetrators have only been identified

11 by the group they belong to."

12 At 347 the Trial Chamber said: "What remains is an alleged JCE

13 between the accused and members of the army and Serb paramilitary forces.

14 The Trial Chamber in this context emphasises that for the purposes of

15 establishing individual criminal responsibility pursuant to the theory of

16 JCE, it is not sufficient to prove an understanding or agreement to commit

17 a crime between the accused and a person in charge or in control of a

18 military or paramilitary unit committing a crime. The accused can only be

19 held criminally responsible under the mode of liability of JCE if the

20 Prosecution establishes beyond a reasonable doubt that he had an

21 understanding or entered into an agreement with the relevant physical

22 perpetrators to commit the particular crime eventually perpetrated, or if

23 the crime perpetrated by the relevant physical perpetrators is a natural

24 and foreseeable consequence of the crime agreed upon by the accused and

25 the relevant physical perpetrators."

Page 92

1 At 351, the Chamber said: "Indeed the accused and the relevant

2 physical perpetrators could espouse the strategic plan and form a criminal

3 intent to commit crimes with the aim of implementing the strategic plan

4 independently from each other and without having an understanding or

5 entering into any agreement between them to commit a crime."

6 At 353: "The Trial Chamber is satisfied that there is no direct

7 evidence to establish such an understanding or agreement between the

8 accused and the relevant physical perpetrators."

9 Now, when the Chamber makes this finding in the context of the

10 agreement in this case regarding physical perpetrators and the elements of

11 a JCE, what they're saying is they have not found an understanding or

12 agreement between the accused and any of the relevant physical

13 perpetrators which would make the relevant physical perpetrators members

14 of the JCE. So clearly the Chamber found that no members of the JCE

15 committed any of the underlying offences found to have been committed by

16 the Trial Chamber, nor can such an inference be made.

17 As the Trial Chamber found in paragraph 354: "Given the physical

18 and structural remoteness between the accused and the relevant physical

19 perpetrators and the fact that the relevant physical perpetrators in most

20 cases have not even been personally identified, the Trial Chamber is not

21 satisfied that the only reasonable conclusion that may be drawn from the

22 accused's and the relevant physical perpetrators's respective actions

23 aimed towards the implementation of the common plan is that the accused

24 entered into an agreement with the relevant physical perpetrators to

25 commit a crime."

Page 93

1 And, again, I refer to footnote 888, which I've shared with you

2 twice now.

3 Let me go now to Prosecution's ground 3, and on this I'll be quite

4 brief.

5 The basis for the Prosecutor's contention is the Trial Chamber's

6 finding regarding torture in the camps and detention facilities based upon

7 his inactivity in failing to take a stand against conduct in the camps

8 both in public and in ARK Crisis Staff meetings combined with his public

9 attitude towards these camps and detention facilities. The argument urges

10 conviction for a crime of omission without showing in any way that there

11 was either a superior-subordinate relationship between Brdjanin and the

12 RPPs in the camps or that he had some duty to act or report. No such

13 finding is justified by the evidence in this case. In fact, the great

14 weight of evidence and the findings of the Trial Chamber compel an

15 opposite conclusion.

16 Ground 4, erroneous acquitted on extermination count.

17 As this ground is discussed, it may be helpful to have in mind

18 what this Chamber has said about alleged errors of fact, and it was

19 repeated to a great extent by the Judge this morning in his opening

20 remarks.

21 In determining -- this is from the Galic appeals judgement,

22 paragraph 9: "In determining whether or not a Trial Chamber's finding was

23 one that no reasonable trier of fact could have reached, the Appeals

24 Chamber will not lightly disturb findings of fact by a Trial Chamber."

25 And then goes on to quote from Kupreskic.

Page 94

1 The Prosecution argues from paragraph 6.8 to 6.17 of their brief

2 that the Chamber erred by failing to find that the killings satisfied the

3 massiveness requirement. However, the Chamber actually found that the

4 killings did satisfy the massiveness requirement at paragraph 465 where

5 the Chamber said: "The Trial Chamber is further satisfied that these

6 killings fulfil the element of massiveness for the crime of

7 extermination."

8 So that was found. They didn't make an error in failing to find

9 that; they found it.

10 In Part C of this section of the Prosecution's brief, the

11 Prosecution suggests that the facts establish that Brdjanin knew that

12 extermination would properly occur in the implementation of the strategic

13 plan and then sets out the evidence that was considered by the Trial

14 Chamber in reaching its opposite conclusion. No argument is made by the

15 Prosecution as to how it was wholly erroneous for the Chamber to arrive at

16 their conclusion. There's no argument that the Trial Chamber overlooked

17 or failed to consider any of the evidence, only that it drew a conclusion

18 with which the Prosecutor does not agree. That does not meet the

19 threshold for overturning a factual conclusion made by a Trial Chamber.

20 The same reasoning applies to the argument in Part D of their

21 argument. In paragraph 6.29, the Prosecution repeats a factual error

22 committed by the Trial Chamber when it avers that the disarmament

23 decisions issued by Brdjanin, actually by the Crisis Staff, caused

24 Brdjanin to be aware that a number of attacks would follow which would be

25 large-scale and involve a number of killings. The evidence simply will

Page 95

1 not support such a finding and no reasonable Trial Chamber could have made

2 such a finding beyond a reasonable doubt.

3 There would need to be some showing in the evidence that each of

4 the attacks that were found to have occurred occurred for the purpose of

5 disarmament and not for some other purpose, separate from disarmament, for

6 that conclusion to work.

7 Second, if there was a finding that the purpose was disarmament,

8 then there would need to be a showing that it was based on a Crisis Staff

9 disarmament decision or conclusion and not on the earlier decisions of

10 Milorad Sajic and the CSB.

11 And I really need to illustrate that requirement by having you

12 look at a couple of documents on the ELMO. So with the usher's help, we

13 can get that done.

14 The first page of that one. Let me give you another one.

15 JUDGE MERON: We have it before us, so you can proceed.

16 MR. ACKERMAN: Can you push the button and let me see the screen.

17 Okay. Your Honour, what you're looking at is the Official Gazette

18 of the Autonomous Region of Krajina. You're looking at a decision that

19 was entered pursuant to the decision of the Ministry of National Defence

20 of the Serbian Republic of Bosnia and Herzegovina, no. 1/92 of 16 April

21 1992. "The Secretariat for National Defence of the Autonomous Region of

22 Krajina has made the following decision."

23 Number 1, you see that there was general public mobilisation

24 ordered on the entire territory of the Autonomous Region of Krajina. And

25 then if we go down, you'll see paragraph 5: "All paramilitary formations

Page 96

1 and individuals who illegally possess weapons and ammunition are to

2 immediately, and by 1500 hours on 11 May 1992 at the latest, surrender

3 them to the municipal headquarters ..." and I'll not read it on because

4 you can read it.

5 And that decision was -- we'll have to go back to the top, I

6 think, to find it.

7 Actually, if we go -- I haven't given the second page to the

8 usher, but the second page shows that that decision was issued on the

9 4th of May, 1992.

10 Now, keep in mind that the ARK Crisis Staff did not exist until

11 the 5th of May, 1992. So when this decision was issued, there was no ARK

12 Crisis Staff.

13 And then if you look at the second document which I have provided,

14 you'll see that what this is is a document from the security services

15 centre in Banja Luka to the chief of all public security stations. That

16 would be throughout the Krajina area. And it is referring to this

17 decision we just looked at. And it's signed by Stojan Zupljanin, and it

18 basically says that -- if you look at page 4 of that document above Stojan

19 Zupljanin's name and right below Sajic's name, this is what Zupljanin

20 ordered: "With regard to the above-mentioned, it is necessary that you

21 immediately" - immediately - "undertake the necessary activities described

22 in the above decision, and report to us about this as well as about all

23 events of interest for the security situation in the course of tomorrow."

24 So before there was any ARK Crisis Staff there were these very

25 high-level decisions from the government and from the Secretariat for

Page 97

1 National Defence calling for disarmament.

2 I'm through with those. Thank you.

3 It seems to me that for the Prosecution to succeed regarding any

4 imposition of liability on Mr. Brdjanin regarding disarmament decisions of

5 the ARK Crisis Staff, there would have to be a showing that any actions

6 taken with regard to disarmament were taken not as a result of the

7 disarmament decisions of the ARK Crisis Staff, that they were taken as a

8 result of those decisions rather than from the earlier decisions that were

9 obviously widely disseminated by the CSB throughout the ARK, and no effort

10 has been made to do that at all and no such showing has ever been made.

11 I will discuss the issue of disarmament at greater length when we

12 meet tomorrow.

13 I want to talk about the Prosecution's response to the Appeals

14 Chamber's questions on JCE, and that will probably conclude my remarks.

15 It was the position of the Prosecutor at trial that Brdjanin was

16 criminally liable pursuant to the first and third categories of JCE. That

17 was the contentions they were making. They were making those contentions

18 in the context of their understanding that the relevant physical

19 perpetrator had to be a member of the JCE. It was, of course, argued

20 consistent with the agreement that that had to be the case. The argument

21 was rejected by the Trial Chamber, the argument that there was a JCE in

22 this case, and they found that there was not.

23 Now in its response to the Appeals Chamber's questions on JCE, the

24 OTP simply repeats and magnifies the arguments which failed at trial

25 without a showing that the factual conclusions reached by the Trial

Page 98

1 Chamber were wholly erroneous and were conclusions that could not have

2 been made by a reasonable Trial Chamber.

3 An especially significant problem for the OTP's position is the

4 Chamber's findings at paragraph 159 of the judgement. After reciting the

5 various crimes that it found to have been committed, the Chamber concluded

6 and, Your Honours, this -- this goes to the heart of the problem -- of the

7 problems with this case. The Trial Chamber concluded that on the basis of

8 the pattern of conduct, and that is after they have recited all the

9 various crimes that they found to have been committed, on the basis of the

10 pattern of conduct by which these crimes were committed throughout the

11 Bosnian Krajina, the Trial Chamber is satisfied that they were mostly -

12 look at that word, "mostly" - perpetrated with a view to implement the

13 strategic plan.

14 Now, that word "mostly" is absolutely critical, because when they

15 find they were mostly perpetrated with a view to implement the strategic

16 plan that is just a broad-based finding that we were unable to find that

17 in every case they were perpetrated with a view to implement the strategic

18 plan.

19 Now, I suggest to you that what then is required is specific

20 findings with regard to each crime as to whether or not the relevant

21 physical perpetrators of that crime were perpetrating it with a view to

22 implementing the strategic plan.

23 In footnote 31 of its answer to Your Honours, the OTP seeks to

24 explain this away by suggesting that in an operation as large as that in

25 the Krajina, it is certainly possible that some of the crimes were

Page 99

1 committed by persons who were not carrying out the strategic plan and did

2 not know of it or some other lack of participation in the JCE.

3 The problem with this is the requirement of proof beyond a

4 reasonable doubt. Liability in a criminal case needs to be focused so

5 that a finding can be made beyond a reasonable doubt, that with regard to

6 each specific underlying crime charged it can be determined that the

7 relevant perpetrators of those crimes were carrying out the strategic plan

8 and were members of the JCE. This the Trial Chamber was wholly unable to

9 find. It could not be found from the evidence in the case.

10 The Prosecution, to establish their asserted proposition, would

11 need to make a showing to you with regard to each crime alleged in the

12 indictment that there was evidence showing beyond a reasonable doubt that

13 the elements of JCE were proved. This wasn't done, and it can't be done

14 from the record in this case. That evidence simply does not exist. It's

15 just not there.

16 Rather than cite specific evidence from which such a conclusion

17 was the only reasonable conclusion to be made by a reasonable Trial

18 Chamber, the Prosecution simply suggests that the relevant physical

19 perpetrators must have understood that they were acting in pursuance of a

20 strategic plan. That's the must have known standard, which we don't have

21 in this Trial Chamber. What we have here is a beyond a reasonable doubt

22 standard. The must have known standard is very, very far below beyond a

23 reasonable doubt.

24 In much of its pleading the Prosecutor continues to refer to the

25 testimony of Witness BT19, as they did in this particular pleading, who

Page 100

1 said: "It was terrible to see normal people become killing machines

2 throughout the terrible power of the media."

3 The Prosecution, I think, in their pleadings filed with you in

4 this appeal have probably referred to that statement by BT19 six or seven

5 times. I haven't counted them.

6 What the Prosecution has always failed to point out to you about

7 this witness is that this was a very important witness who was present in

8 the area at the time and was receiving hundreds of reports, receiving

9 daily reports from persons in the field about things that were going on in

10 the Krajina and events relevant to the indictment in this case, and it was

11 from all of those reports, all those hundreds of reports and from his own

12 personal observations that he was able arrive at the conclusions cited by

13 the OTP. And with all those hundreds of reports, he was asked on

14 cross-examination if he ever heard of Radoslav Brdjanin in terms of making

15 statements or being involved in propaganda, and he said no, he didn't hear

16 of him in any connection, let alone in connection with the issue of

17 propaganda and its effects.

18 Now, that's crucial evidence. That's important evidence, because

19 there is a person who should have heard of Brdjanin if what is suggested

20 about him is true.

21 I think it's important to Your Honours to understand the history

22 of the Krajina area, to understand that the relevant physical perpetrators

23 didn't need to be propagandised into a campaign to carry out crimes

24 against the non-Serb population. The testimony of Dr. Donia in his expert

25 report sets this history out for you in some detail.

Page 101

1 The Croats and the Muslims from that area massacred thousands of

2 Serbs during World War II when the Croats were allies of the Third Reich

3 and when there was a Muslim SS unit operating in Bosnia. Memories of

4 those massacres were fresh in the minds of Krajina Serbs, many of whom had

5 lost family members to these massacres. This was especially pronounced in

6 the Prijedor area where some of the worst crimes occurred, where many of

7 the crimes against Serbs in World War II had happened, where thousands of

8 Serbs were killed. And this area is just across the Croatian border from

9 the infamous Jasenovac concentration camp, and the people in that area

10 certainly were familiar with that camp and what happened there.

11 The death of Tito and the disappearance of the enforcement of the

12 Tito's concept of brotherhood and unity alone unleashed smouldering

13 resentments leading to the commission of many crimes wholly independent of

14 any strategic plan. The evidence in this case can't be appreciated

15 without that sense of history.

16 Your Honours, I thank you.

17 JUDGE MERON: Thank you, Mr. Ackerman. I take it you have

18 completed your argument.

19 MR. ACKERMAN: I have.

20 JUDGE MERON: Before turning to my colleagues and asking them

21 whether they would have any questions for you, I would like to return to

22 the question I asked you earlier.


24 JUDGE MERON: And I would be grateful for additional

25 enlightenment, because I still have some problems with that JCE issue.

Page 102

1 If I understood you correctly, you told me there could be no JCE

2 conviction based on ground 2 of the Prosecution's appeal because of the

3 Prosecution's agreement that physical perpetrators must be members of

4 the JCE.

5 But as I understand the Prosecution, ground 1 of their appeal --

6 appeal relates to this issue, but ground 2 relates to a separate matter;

7 namely, whether there must be direct agreement between the physical

8 perpetrator and Mr. Brdjanin.

9 What I would like to know, whether the Prosecution had an

10 understanding with you at trial; also about this element of agreement that

11 this was necessary. If so, could you please, for the benefit of the

12 Bench, cite chapter and verse. If you cannot find it today, you can give

13 to us tomorrow.

14 MR. ACKERMAN: No. I think I can answer you rather briefly, Your

15 Honour.

16 JUDGE MERON: Great. Please.

17 MR. ACKERMAN: The agreement at trial or at least the

18 understanding at trial, and you know, Your Honour, this was based upon a

19 question submitted to us by the Judge as to -- as to whether we believe

20 that the relevant physical perpetrators in JCE had to be members of the

21 JCE, and the Defence answered yes, and the Prosecution answered yes, and

22 that was consistent with -- with what Judge Hunt and Judge Mumba and Judge

23 Daqun had found pre-trial, in a motion pre-trial.

24 So my argument to you is that even if the Prosecution's argument

25 under ground 2 has merit, it can't affect Brdjanin because the same

Page 103

1 requirement was imposed by the Trial Chamber; that is, that the relevant

2 physical perpetrator of the JCE III also had to be a member of the JCE.

3 And having agreed that that was the case, then it's my view that -- that

4 ground 2, even though it may be relevant for academic purposes, cannot

5 affect the conviction of Mr. Brdjanin, or the acquittal as it turns out to

6 be.

7 JUDGE MERON: And you have no further comment about this problem

8 of the agreement or direct agreement?

9 MR. ACKERMAN: I think that's as far as I can go with it today.

10 I'll ponder it a little overnight. I might have something more to add,

11 Your Honour. Probably not.

12 JUDGE MERON: Okay. If you want to return to it tomorrow, we will

13 let you.

14 Sorry, Judge Guney. Judge Van Den Wyngaert.

15 JUDGE VAN DEN WYNGAERT: Mr. Ackerman, if I understand you

16 correctly, your submission on the point of criminal liability by omission

17 is that there should be a legal duty, and if I look at how you work it

18 out, you seem to restrict it to the cases where there is a

19 subordinate-inferior relationship.

20 My question then is: What then remains of responsibility for

21 omission under Article 7(1) as compared to Article 7(3), because that's

22 the typical situation of responsibility by omission for a superior. Would

23 you reduce it then to almost nothing, aiding and abetting by omission, if

24 I would follow your reasoning?

25 MR. ACKERMAN: It's my fault; I've been misunderstood.

Page 104

1 There are two, two places where a crime may be committed by

2 omission: One where there is a superior-subordinate relationship; the

3 other is where there is a duty, some kind of an affirmative duty to act.

4 And my argument is that in this case there was no superior-subordinate

5 relationship between Brdjanin and any of the relevant perpetrators, and

6 the Trial Chamber found that to be the case.

7 The other prong, where it also could be imposed, is with regard to

8 a duty, and the Trial Chamber also found that Brdjanin had no duty to act

9 outside of -- of whether or not he was -- there was a superior-subordinate

10 relationship. So there are two things there, two waves, and that's what

11 the jurisprudence of this Tribunal establishes, I believe.

12 JUDGE MERON: I do not see -- I do not see additional questions

13 from the Bench, so I thank you, Mr. Ackerman, for your argument.

14 MR. ACKERMAN: Thank you, Your Honour.

15 JUDGE MERON: And I would ask now Mr. Karnavas, the representative

16 of the Defence association to make his -- present his argument in no more

17 than 15 minutes, please.

18 MR. KARNAVAS: Good afternoon, Your Honours. I'll be brief. The

19 Association of Defence Counsel -- sorry.

20 Good afternoon, Your Honours. The Association of Defence Counsel

21 is grateful to have been asked to weigh in on this important issue, that

22 is, under up the law a -- where there's a principle -- a physical

23 perpetrator has to be a member of the JCE. We think it's an important

24 issue, and we're happy to contribute to this discussion.

25 First, however, let me point out what our official position is.

Page 105

1 It's a position, I believe, that most Defence counsel hold who come before

2 this Tribunal, and that is that in spite of Tadic, we are of the opinion

3 that JCE is not in the Statute explicitly or implicitly. But having said

4 that, having said that, we are mindful that it is part of the

5 jurisprudence, and we fully and unequivocally find it as binding

6 precedent. So I want to make sure that our position is stated, but you

7 also realise that we realise that it's binding precedent and, as such, we

8 must follow it.

9 Now, the issue before us is -- is rather -- is rather narrow, and

10 here we are, I think some ten years later after the first trial, and we're

11 still trying to figure out the contours of JCE. And I don't think that

12 there's any dispute that in order to incur liability for a crime pursuant

13 to a JCE, an accused need merely have participated in the common plan,

14 design, or purpose at the core of the JCE, and that he need not have

15 performed any part of the actus reus or the perpetrated crime.

16 So I think we -- that's the starting point. We all understand

17 that. And that being said, what of the person who does perform the

18 actus reus? Must he have participated in the common plan, design, or

19 purpose? Using a word, the Association says yes.

20 Before addressing the -- how we arrive at this particular answer,

21 it further bears recalling that the record reveals a position advocated by

22 the -- by the ADC and Defence counsel John Ackerman was shared by the OTP

23 during the pre-trial and trial stage of the case. Indeed, when examining

24 the proceedings, the stark reality is that the Prosecution team at trial

25 led by a senior trial attorney, Joanne Korner, who is a Queen's Counsel,

Page 106

1 came to this position, not as a result of some excited or spontaneous

2 utterance, or, as they say, a slip between the cup and the lip, but after

3 careful deliberation. As you well know, there was quite a bit of

4 discussion, and Judge Hunt had quite a few questions to ask of the

5 Prosecution team when they wanted to amend the indictment. So this was a

6 deliberate process.

7 So it is our position that it was only after the OTP was unable to

8 muster the evidence which it believed was sufficient to achieve its

9 intended result after the findings by the Trial Chamber, that's when they

10 decided to change their tune and say, Well, now we think differently.

11 So what can we glean from the -- the existing jurisprudence? The

12 Appeals Chamber in Ojdanic did not revisit the Tadic findings on the

13 customary status of this form of liability holding that state practice in

14 opinio juris reviewed by Tadic was sufficient to conclude that this norm

15 existed under customary international law in 1992. Fair enough.

16 In explaining the emergence or articulating JCE as a mode of

17 liability, Judge Shahabuddeen, you have noted in your separate opinion in

18 Gacumbitsi, and I think this is rather poignant. I've read it several

19 times because I think it gives us the essence of where JCE has come about,

20 has come from. You say that Tadic did not create JCE but, rather, the

21 Appeals Chamber in Tadic merely put forward a judicial construct developed

22 out of its analysis of scattered principles of law gathered together for

23 the purpose of administering international criminal law. The expression

24 "joint criminal enterprise" haven't been found in those principles. The

25 Appeals Chamber did not propose any modifications of these principles,

Page 107

1 those principles, but simply identify "the elements of individual criminal

2 responsibility for a crime collectively perpetrated."

3 So I focus on this because I think this is our point of departure

4 for our particular discussion, you know. So we need to keep this --

5 this -- these -- this observation which I believe is a very precise,

6 concise, and astute observation in regards to how or what happened in

7 Tadic.

8 There's no need to go through in any detail the litany of cases

9 that are cited in Tadic. The Appeals Chamber has the respective briefs,

10 so there's no need for me to go into them in any details and obviously you

11 all know them. It might, however, be useful to make certain observations

12 about these cases as they relate to this very narrow issue.

13 Since the counters of JCE in Tadic were delineated based on

14 certain post-World War II cases, the question that begs to be answered is

15 whether these cases give decisive guidance as to whether the Tribunal's

16 jurisprudence requires that the physical perpetrator be a participant in

17 the JCE. I think that's the core issue that we -- we need to address.

18 We, the Association, that is, is of the opinion that these cases

19 do provide us guidance reflected in Tadic, though not explicitly

20 specifying or setting out the element of the physical perpetrator but the

21 element of the physical perpetrator must be a member of the JCE, Tadic

22 recognises that membership of a physical perpetrator in the JCE as a

23 requirement. Tadic explicitly requires, and we noted this in our brief,

24 at least seven times that the physical perpetrator must be a member of the

25 JCE. This was also noted by Judge Bonomy in his separate opinion which

Page 108

1 was referred to by the OTP, the separate opinion in -- in Ojdanic which

2 challenged the incorrect co-perpetration, and that was of 22 March 2006.

3 And this was what Judge Bonomy observed having done the analysis, and

4 might I say that Judge Bonomy's separate opinion is exquisite in its

5 approach, though we depart in some areas, but his analysis of the case law

6 is superb.

7 "In its initial discussion," he notes, "of the elements of the

8 third category in paragraph 204, in the summary of the elements of the

9 first and third categories in paragraph 220, and in the rearticulation of

10 the mental elements of the third category in paragraphs 228, the Appeal

11 Chamber did recognise, at least as regards the first and third categories,

12 a requirement that the physical perpetrator be a JCE member."

13 Now, having said that, we are also mindful that Judge Bonomy also

14 made an astute observation about Tadic, which perhaps is why we're here

15 today, and this is what he notes: "Tadic did not take an unambiguous

16 position on whether the person who does perform the actus reus must

17 himself have participated in the common plan, design, or purpose."

18 So you have Judge Bonomy looking at it as we have saying, yes, it

19 was mentioned on numerous occasions that the physical perpetrator must be

20 a member of the JCE, but then he notes -- and he cites some paragraphs

21 where Tadic regrettably did not take an unambiguous position with respect

22 to this particular issue that we are faced here today. That's his

23 analysis, and I thought, in all fairness, I would present both sides.

24 We maintain that the World War II cases or post-World War II cases

25 which the Appeals Chamber replied upon in defining JCE as a mode of

Page 109

1 liability in Tadic appear to reflect that the physical perpetrator was a

2 member of the common plan. We further maintain that when reviewing this

3 body of case law, the Appeals Chamber in Tadic did not do so for the sole

4 purpose, or for the purpose, I should say, of fashioning a mode of

5 liability in order to -- to produce a desired result in Tadic.

6 I think that's -- that's rather relevant.

7 Rather, in Tadic it did so in order to fulfil the Tribunal's

8 mandate as spelled out in the Secretary-General's report to which the

9 Secretary-General believes that all persons who participate in the

10 planning or execution of serious violations of international humanitarian

11 law in the former Yugoslavia are individually responsible for such

12 violations.

13 Thus, it was by interpreting the Statute based on its object and

14 purpose that it determined that the doctrine of common purpose was

15 implicit in 7(1). And I want to stress again when the Appeals Chamber in

16 Tadic didn't say, Well, we want to convict Tadic. We want to find him

17 guilty somehow, so now let's look at the World War II cases and see

18 whether we can come up with some mode of liability which may be implicit

19 in -- in the Statute, but, rather, it looked at the case law, and based on

20 the case law, which is why I quoted you, Judge Shahabuddeen, it was based

21 on that that you arrived at the decision that JCE does indeed exist in

22 customary international law and it's implicit in the Statute.

23 So -- and I think that's rather important. Because as you noted,

24 you look at all the various cases and you put them together in this -- and

25 you came up with this -- this concept known as joint criminal enterprise

Page 110

1 or common -- based on the common purpose theory.

2 The events of World War II were known to you at the time. The

3 cases were known to you. You knew at the time when you reviewed -- the

4 Appeals Chamber knew when they reviewed the cases that there were small,

5 medium-sized and large types of enterprises that were ongoing in large

6 areas for long periods of time that affected large numbers of victims. So

7 it wasn't as if all of a sudden Brdjanin comes along and you say, My God,

8 you know, there's -- we never anticipated that this was going to be a

9 situation. This was all known when you looked at the case law, and of

10 course the events of World War II have plenty of examples to tell us.

11 While these cases obviously did not deal with all possible

12 scenarios, they all share certain core elements which we submit served as

13 the basis for the doctrine of JCE. Therefore, it would be misleading to

14 suggest that the Appeals Chamber at the time of Tadic was not cognizant of

15 these cases and was not cognizant of these events and certainly was not

16 cognizant of what had happened in the former Yugoslavia in that there

17 might be instances where you would have joint criminal enterprises in a

18 vast area.

19 Therefore, I submit that the facts that the cases -- I submit that

20 the fact that the cases that follow Tadic up until Brdjanin were dealing

21 with relatively small or limited enterprises is of little importance when

22 it comes to determining whether the physical perpetrator need be a member

23 of the JCE. The doctrine does not shift on the basis of the facts of the

24 case. It is what it is, nothing more, nothing else. What is at stake

25 here is how far removed the physical perpetrator need be from a member of

Page 111

1 the JCE before his acts are not attributed to members of the JCE.

2 Where are the limits? Are there any limits? Or, as one scholar

3 noted, just convict all of them.

4 If we take the Prosecution's position, there are no limits. It's

5 a moving target. We move as we go along, especially after we don't like

6 the results. That's what our submission would be.

7 And I'm wrapping it up, Your Honours.

8 The Trial Chamber's position in this case, which was also shared

9 by the OTP during the trial up to the issuance of the judgement correctly

10 reflects the parameters set by Tadic based on the case law it relied on in

11 concluding that JCE, as a mode of liability, was recognised as customary

12 international law. It provides for reasonable limitations and does not

13 frustrate, does not frustrate the object and purpose of the Tribunal or

14 its Statute. It also inhibits the imposition of liability on an accused

15 where the link between him and those who physically perpetrated the crimes

16 with which he is charged is to attenuated, and I think that's something

17 that's rather important to all of us here. Moreover, it provides for

18 certainty and uniformity.

19 In Limaj, the Trial Chamber took the same position as the Trial

20 Chamber did in Brdjanin. While the Trial Chamber dismissed JCE as a

21 possible form of responsibility due to the lack of evidence, it

22 nonetheless looked at Kovocka and there it found that when the Appeals

23 Chamber referred to crimes committed by one or more participants in the

24 common design, in other members of the group it made it clear that the

25 crimes committed by one or more participants in such an enterprise may

Page 112

1 give rise to liability of other participants.

2 But having said that, having said that, again, in fairness to the

3 Prosecution, it would appear, if we look at Judge Bonomy's interpretation,

4 he's not convinced, he's not convinced that Kovocka goes as far as the

5 Limaj Trial Chamber had indicated. And so what we have here right now, we

6 have two Chambers saying the physical perpetrator must be a member of

7 the JCE. Two other Chambers, because Krajisnik is the other, that say

8 that they need not be.

9 JUDGE MERON: I'm afraid, Mr. Karnavas, your time is up.

10 MR. KARNAVAS: I have one -- just if I could have 10 seconds.


12 MR. KARNAVAS: 10 seconds.

13 In the final analysis, however, all four Chambers recognise and

14 appreciate that before acts and conducts of the physical perpetrator can

15 be attributed to the accused, a direct or close connection between the

16 accused and physical perpetrator must be established, and I think that's

17 something that I would urge you to consider when you weigh in on this

18 particular issue.

19 And I appreciate the extra time provided to me. I'm afraid I was

20 a little rushed and a little nervous, but I hope that I conveyed my

21 thoughts as best as I could.

22 Thank you.

23 JUDGE MERON: I'm sure you did. Thank you, Mr. Karnavas. And I

24 would like to consult my colleagues and the Prosecution about what will

25 follow now.

Page 113

1 Will the Prosecution want to reply to the statement of the -- of

2 Mr. Karnavas? I'm not suggesting you do it now. I just want to know

3 whether you will want to.

4 MS. BRADY: Yes, Your Honour. I can be quite brief. I was

5 intending to deal with the matters I want to raise in reply to both, more

6 or less together.

7 JUDGE MERON: What do you mean quite brief? I'm terribly sorry.

8 I have to move from algebra to mathematics.

9 MS. BRADY: Your Honours, I do not think that the Prosecution

10 would need more than 30 minutes in total in its reply. I think we were

11 already at 45 minutes, but I believe that we could deal with the matters

12 arising in 30 minutes.

13 JUDGE MERON: So you would join it to your reply tomorrow then?

14 MS. BRADY: Well, no, Your Honours. We're doing it today. We

15 would prefer to do it today.

16 JUDGE MERON: Then I think in fairness the interpreters we will

17 now have a break, and we will have a break of 20 minutes. So we will

18 start at -- well, at about 20 to 6.00. I understand that we need 20

19 minutes as a minimum break, and I would abide by the rules.

20 So we will now rise.

21 --- Recess taken at 5.22 p.m.

22 --- On resuming at 5.40 p.m.

23 JUDGE MERON: Please be seated.

24 Ms. Brady, 30 minutes, and if you can do it in less that would not

25 be regretted by the Bench.

Page 114

1 MS. BRADY: I will do my best, Your Honour. Thank you.

2 Both Mr. Ackerman and Mr. Karnavas have, to a large extent,

3 repeated the arguments in their response briefs, and of course we've

4 already given a rather detailed reply in our reply briefs to these, and I

5 don't want to repeat what I said in -- what the Prosecution said in those

6 reply briefs. Instead, what I'd like to do is focus on a few discrete

7 points which have arisen and which we need to reply to.

8 The first question I would like to address is the one that

9 Your Honour Judge Meron asked Mr. Ackerman, and that was in relation to

10 his submission that the Prosecution is somehow now estopped from bringing

11 its ground 2 because somehow we had agreed ourselves out of this position

12 at trial.

13 Now, we -- we agree that the Prosecution was asked at trial and

14 had -- took the understanding and responded to a question from the Trial

15 Chamber to the effect that the physical perpetrators of the crimes for

16 which he is being held responsible, that they had to have entered into an

17 agreement with the accused. Our answer to that in relation to the Trial

18 Chamber's question, this was part of the closing brief, our answer was,

19 yes, it's necessary to show that there was an agreement -- excuse me, an

20 understanding or arrangement amounting to an agreement between two or more

21 persons that they will commit a crime. However, in that answer we also

22 said the circumstances in which two or more persons are participating

23 together in the commission of a particular crime may themselves establish

24 an unspoken understanding or arrangement amounting to an agreement formed

25 between them then and there to commit that crime.

Page 115

1 And as an additional response, we said, yes, under the first

2 category of JCE, it is necessary to show that the physical perpetrators

3 and the accused shared the same criminal intent with respect to those

4 particular crimes.

5 Now, we don't resile in any respect from that position. We're not

6 taking a different position to that which we took at trial. Nowhere at

7 trial did we say that this arrangement or this agreement had to be a

8 direct one. We never said that at trial. We never said that it has to be

9 a sort of like a formal contract, a one-to-one agreement. What we said is

10 that there has to be agreement. And the thrust, the essence of the

11 Prosecution's submissions on appeal are that this agreement is found once

12 you prove common plan or purpose, and to prove that, it's that the

13 physical perpetrators, and Brdjanin in this case, the JCE members, had the

14 same criminal purpose and acted jointly to achieve it. That's how you

15 find the agreement. So there's no doubling back or somehow changing our

16 position.

17 We do say that for the purposes of the second ground that the

18 physical perpetrators, yes, have to be members of the JCE, for the

19 purposes of that ground. Of course, our ground 1 argues that they don't

20 always have to be, but because we took the position at trial that we did,

21 we're running ground 1 as -- purely as a legal error -- a matter of

22 significance to the Tribunal but without impact for this accused.

23 The second point I'd like to turn to is a theme which came out in

24 both Mr. Ackerman's and Mr. Karnavas's submissions, basically to the

25 effect that our position is not part of customary international law and

Page 116

1 that we're extending it, and Tadic never said this, and we're going

2 against Tadic, and we just want this because it's convenient, and we're

3 trying to expand JCE and we're trying to push the boundaries. And I think

4 at one point actually Mr. Karnavas says for us there are no limits on JCE.

5 Well, that's just not true, and that's not the Prosecution's

6 position. We're not trying to establish a whole now concept of JCE. Our

7 position is that this is the concept of JCE as applied in Tadic, except

8 that the facts of Tadic clearly confined the holding in Tadic to the facts

9 of Tadic itself. They had no need in Tadic to go beyond the situation

10 where the physical perpetrators were in the JCE. But that doesn't mean

11 they're holding -- that the holding can only be restricted to those

12 factual situations. And, indeed, the World War II cases in Tadic, yes, we

13 agree the World War II cases, some of them did require physical

14 perpetrators, they were actually members of the JCE. But not all the

15 cases cited in Tadic had that. And I'll rest my submissions on our brief.

16 I think we've covered that quite amply in the brief.

17 So Tadic doesn't provide this limit that, well, both Mr. Karnavas

18 and Mr. Ackerman have indicated. And, in fact, looking at more recent

19 jurisprudence of Stakic and Krstic and these cases, it's clear that

20 they're not limited in this -- in this way that they say Tadic limits --

21 limits the law.

22 Both of them effectively say that our position on JCE paints JCE

23 with too broad a brush and that there's no limits on JCE, according to us,

24 and that it offends the principle that somebody should be responsible, the

25 culpability principle. And they say that the limits that the Trial

Page 117

1 Chamber put on were fair limits to prevent an overreaching, an abuse.

2 Our position neither improperly broadens the scope of JCE. It

3 doesn't take it beyond what is already established under customary

4 international law, and it doesn't offend any notion, principle of

5 culpability. Applied properly, and this can be said whether you're

6 talking about application in large or small crimes, the JCE doctrine under

7 customary international law will not overreach, applied properly, and in

8 fact it does ensure that an accused is held responsible under JCE only for

9 crimes for which he is truly culpable. This is because the elements of

10 JCE itself provide the necessary safeguards against some sort of

11 limitless, or as the Defence would have -- would paint our case, some kind

12 of limitless expansion of criminal responsibility.

13 First, of course there's the intent requirement under JCE. That's

14 one very important safety valve, check on JCE's application. For JCE I,

15 all JCE members, including the accused, must have the necessary intent for

16 the crimes intended by the JCE. This actually goes beyond the knowledge

17 requirement which we saw in the World War II cases. It's higher. It's a

18 higher standard. It's an aiming at intent.

19 For JCE III to apply, the accused must be able to foresee -- must

20 be able to foresee and foresee that other crimes may occur in the

21 execution of the common criminal purpose.

22 So that's one important check on JCE. That's a limit.

23 Secondly, the contribution requirement is another limit. I think

24 Mr. Ackerman, I might not be quoting him quite correctly, but he basically

25 said, Well, as far as the Prosecution is concerned, all they have to prove

Page 118

1 is that there's an existence of a JCE, that the accused joined, and, hey,

2 presto, he's liable. This is not so. Again, all JCE members including

3 the accused must contribute to the commission of crimes intended by the

4 JCE.

5 And in terms of this contribution requirement, our submission is

6 why should a difference arise from the fact that one of the accused's

7 fellow JCE members made his contribution to the JCE directly, and yet

8 another one does his act in contribution to the JCE indirectly through

9 another? Why would there be a difference in culpability, so long as it

10 can be said that in both cases it's the JCE members' act, then liability

11 can be attributed to the other JCE members.

12 The third limit that is on JCE, the safety valve to prevent it

13 from being this sort of all-expanding notion, which it's not, the third

14 limit derives from the common criminal plan or element itself. And as

15 I've explained, it requires -- this is in our second ground, it requires

16 that the other members have the same criminal plan or purpose and act

17 jointly to achieve it.

18 There's nothing unfair or overly expansive, nothing expansive at

19 all about holding an accused liable when he acts together with others to

20 achieve their common criminal goal, and this is so whether those people

21 with whom he jointly acts to implement their shared criminal objective

22 perform their acts directly or indirectly.

23 Putting it very simply, and I think to answer the example he gave

24 about the mayor from Banja Luka, and just to make a comment on that that

25 this is not a must-have-known type of case here. This is a case where --

Page 119

1 it can be -- the factual findings are that the physical perpetrators did

2 know and did share and did have that same criminal plan.

3 But to put our position very simply, where the physical

4 perpetrators are members of the JCE, there's no dilution of the

5 culpability principle, no expansion of criminal liability to hold an

6 accused responsible for the acts of those with whom he jointly acts to

7 implement their shared criminal objective.

8 And to answer Mr. Karnavas, where the physical perpetrators are

9 not members of the JCE. Again, there's no expansion of the principle.

10 There's no diminution of the culpability principle. There's no expansion

11 of the JCE. Why shouldn't an accused be responsible for the acts of

12 others when they do so as -- when the others act as tools of the

13 individual with whom the accused has agreed to act together to carry out

14 the common criminal objective?

15 I'd like to turn to reply to Mr. Ackerman's arguments which I

16 clump under the heading where he emphasised -- put a lot of emphasis on

17 the fact that the physical perpetrators weren't in his structure. He said

18 a number of times that the ARK had no de facto authority over the relevant

19 physical perpetrators. There was superior-subordinate relationship. Yes,

20 that's all -- that's true. Those findings are the findings of the Trial

21 Chamber, that they weren't in his direct de facto strict chain of command.

22 But the finding of the Trial Chamber was that they were -- that he had --

23 the exact words were great influence, great influence over the army and

24 paramilitary forces. It's in paragraphs 224 and 229 of the judgement.

25 The effect of Mr. Ackerman's submission is that basically since

Page 120

1 those paramilitaries -- paramilitary and military forces were not under

2 his authority, why can he be liable under 7(1) for JCE? In our

3 submission, he is conflating or confusing two different modes of

4 liability, 7(3) and 7(1), and in doing so he -- Mr. Ackerman's not

5 recognising that these two modes criminalise different criminal conduct,

6 and that's why they have different elements.

7 Now, under 7(3), as we know from the case law, a superior is

8 liable for failing to prevent or punish subordinates committing crimes or

9 for failing to punish them when they have done so, when he knew or had

10 reason to know they had been committed. So it punishes for an omission to

11 act where there's a duty to act. That's why in that situation the

12 superior-subordinate relationship must be strictly proved. So if we were

13 in the -- if we were dealing here with 7(3) liability, his submissions on

14 that point would be fine. But when we're dealing here, as we are, for

15 7(1) liability, as we know, 7(1) liability doesn't require JCE members to

16 be in any organised structure so long as it can be shown that they had a

17 common criminal plan or purpose, that's the agreement between them, and

18 acted jointly or together to implement it.

19 So, in other words, 7(3) is aiming at a different type of criminal

20 responsibility. It punishes for the pursuance of a criminal objective

21 which the accused had agreed to pursue and then does pursue with others.

22 And sometimes a person's conduct, an accused's conduct can satisfy both

23 modes. It could happen that you could -- in some cases it's a choice

24 being made, but not always. And it doesn't mean just because there wasn't

25 that sufficient superior-subordinate connection and that 7(3) therefore

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1 wasn't applicable, it doesn't mean that 7(1) JCE is also not applicable.

2 To the contrary in this case. Because his point that he made about

3 the -- that he somehow couldn't impact the events, that Brdjanin couldn't

4 impact things because he didn't have this superior-subordinate

5 relationship, well, again, I remind Your Honours that the finding was that

6 he had great influence over them, and it's clear he could have impacted

7 events. He was -- he was the major implementer of the events themselves.

8 That's how great his ability was to impact events.

9 There -- I also want to address briefly on a submission made by

10 Mr. Ackerman to the effect that the trial -- he was concentrating on some

11 findings in paragraph 351 of the judgement which he says means that JCE

12 wasn't applicable on these facts.

13 In our submission, the Trial Chamber drew unreasonable inferences

14 which led it not to find that JCE was applicable as a result of this

15 legally erroneous approach that had taken to agreement, because it took

16 this very narrow approach to agreement, this unduly erroneously narrow

17 approach, it then allowed for these two very strained hypotheses, very

18 strained factual inferences to be found. And in our submission, the

19 findings, those findings, were unreasonable on the basis of applying

20 common criminal plan or purpose when applied to the very findings of fact

21 that the Trial Chamber had already made.

22 And I'd like to briefly run through the two hypotheses, the two

23 inferences that the Trial Chamber did find which led it to take the view

24 that there should not be JCE liability.

25 Firstly, the Trial Chamber allowed for the possibility that the

Page 122

1 participants may have had the same criminal purpose but acted somehow

2 independently of each other. Well, common criminal plan or purpose

3 requires as a major -- as a feature of it not just that they adopt the

4 same plan or purpose but they're acting jointly together. The Trial

5 Chamber had already found throughout the judgement, especially in

6 chapter 4 of the judgement, but right throughout, they found that Brdjanin

7 and the physical perpetrators had the same criminal purpose, that is to

8 deport or forcibly transfer the Bosnian Muslims and Croats from the region

9 through force or fear, and acted jointly to implement it. So it had

10 already made all the findings to the effect that they were acting

11 together. They'd made the findings that there was an agreement.

12 And in fact, the Trial Chamber in paragraph 119 found in fact that

13 the impact of any so-called what they called marginal -- uncontrolled

14 elements, excuse me, was marginal and that it was impossible to implement

15 a systematic policy of this magnitude just by spontaneous actions or

16 criminal actions by isolated groups.

17 So, in other words, the factual inference, that inference was

18 simply not reasonable on the basis of the Trial Chamber's very own factual

19 findings.

20 The second inference that the Trial Chamber allowed for, wrongly

21 in our submission, was that the alleged JCE members may just have been

22 responding to orders or instructions from their superiors, from their

23 paramilitary and military superiors. I think this was the import of why

24 Mr. Ackerman was pointing to all these paragraphs about the military

25 aiming at certain conduct, but they thought, well, that could happen

Page 123

1 without the people being in agreement with the common criminal plan.

2 Well, theoretically that might be true. That could happen in a

3 case. It could happen that people didn't -- were simply acting to orders

4 and not being in agreement. That's why we say our first ground is

5 important, because it could happen in cases that that was the case. But

6 not on these facts. Not here. Because, again, the proper application of

7 common criminal purpose will address that concern as long as it's

8 established that persons had the same criminal purpose and acted jointly

9 as the Trial Chamber found, then acting under orders won't be inconsistent

10 with acting to implement the common criminal plan.

11 Indeed, if somebody shared, had the -- adopted the criminal plan

12 like this on such a vast scale, he or she would know that to achieve this

13 would require such a degree of cooperation and implementation that the

14 only way it could realistically be done was through the giving and

15 execution of orders.

16 So, in a nutshell, in light of the Trial Chamber's findings that

17 the physical perpetrators were in this agreement, they had the same

18 purpose. They acted jointly, that's clear from the pattern, from the

19 whole pattern of the crimes. Orders in this situation would not defeat

20 JCE's application.

21 So, again, the Trial Chamber's finding, these factual findings

22 that Mr. Ackerman emphasised, they're not reasonable. They weren't open

23 on the basis of the Trial Chamber's very own factual findings.

24 I'd finally like to turn to -- I'd finally like to turn to the

25 question on impact that Mr. Ackerman addressed. He firstly made the

Page 124

1 submission that, well, did the JCE members commit crimes. Well, our

2 answer is, well, yes. Yes, the JCE members committed crimes. The

3 military and the paramilitary forces committed crimes, and they're JCE

4 members. They're JCE members not because they walked up to Mr. Brdjanin

5 and had a handshake but because they agreed with him in the sense that

6 they were espousing the same plan, and they were acting together to

7 achieve it, to implement it. And this is not based on the evidence. Our

8 submissions are based on the findings of the facts as found by the Trial

9 Chamber.

10 Most of or a lot of Mr. Ackerman's challenges were to the facts as

11 found -- excuse me. A lot of Mr. Ackerman's challenges were essentially

12 challenging the facts, the facts of -- in the judgement, the ones that

13 were found by the Trial Chamber. But of course this is an appeal by the

14 Prosecution, and it's based on the facts as found. So we need to proceed

15 on the basis of those factual findings in the judgement. To the extent

16 that he's raised arguments that they drew unreasonable factual findings,

17 we've responded to this in our response brief, and tomorrow in our

18 response to his appeal we will probably touch on some -- some of those

19 issues to the extent that we haven't already done so in our response

20 brief.

21 The gist of his -- the main point of his submission is that we

22 haven't shown that there was this understanding or this agreement between

23 JCE members to commit a crime. We haven't shown that they were members,

24 that they didn't agree. Well, Your Honours, I think our submissions on

25 this point, the filing of the 13th of November are very detailed, and

Page 125

1 we've put our full position there in the written submissions together with

2 the revised -- the annexes which set out a full articulation of the crimes

3 of the military and paramilitary, i.e., the JCE members, which they

4 committed in the execution of their shared criminal objective.

5 I won't go into detail now about those, but essentially the Trial

6 Chamber's findings, their own findings themselves make it clear that

7 Brdjanin and the physical perpetrators adopted the same plan to deport or

8 forcibly transfer non-Serbs from the region.

9 He -- Mr. Ackerman kept stressing that but they didn't agree.

10 They didn't agree. They didn't have an agreement. Well, agreement means

11 that you share the common criminal plan and you act jointly together.

12 What other conclusion can there be on the facts, on the facts found by the

13 Trial Chamber but that they were in agreement? It's clear they acted

14 together to further the implementation of the common criminal purpose.

15 They were doing it jointly. There's no suggestion that they are

16 independent groups.

17 So to that extent, yes, JCE members did commit crimes. They did

18 commit the crimes. They shared, they adopted, they had the same criminal

19 purpose, and they worked together to achieve it. Such a large and

20 comprehensive plan could in fact only have been implemented through this

21 coordinated cooperation of a large number of individuals and entities.

22 I want to respond to just two quick points in relation to his

23 submissions on impact. One was to the effect that he relies on

24 paragraph 159 of the judgement to say that the finding is that the crimes

25 were mostly committed with this -- mostly committed with a view to

Page 126

1 implement the strategic plan. And he reads that to mean, well, not in

2 every case. And then he goes further and says, well, then you need to

3 make specific factual findings. We've dealt with this in our written

4 submissions.

5 In an operation such as this, there may be -- it could be that

6 there are a negligible amount of people who for some reason or another are

7 just running along with the group. They don't share the plan. Maybe

8 their mind is not averted to the situation. And that's what the Trial

9 Chamber had in mind. That's our submission, that that's what the Trial

10 Chamber had in mind. And the reason why we say that is because all the

11 other findings, all of its other findings throughout the judgement, they

12 don't make disqualification. It's only in the paragraphs of I think 350,

13 351 and 159, we've cited them in our written submissions, where they make

14 this, and that has to be read together with paragraph 119 where the

15 finding of the Trial Chamber is actually that the effect of perhaps random

16 isolated spontaneous groups was marginal.

17 We're talking about the majority of crimes, and the majority of

18 crimes, they're the ones which are in our annexes. They're the ones that

19 JCE members committed as part of the joint criminal enterprise.

20 The final point I wish to address is this question about whether

21 or not the physical perpetrators knew of Brdjanin or knew that Brdjanin's

22 name, and he pointed to the fact that one of our witnesses, BT19, said

23 he'd never heard of Brdjanin. We haven't -- I didn't get the precise

24 transcript references, I'm not sure if Mr. Ackerman mentioned them, but I

25 didn't -- I don't know the transcript, and we couldn't go to this

Page 127

1 immediately in the small time available to us, but that's not the point.

2 The point is not whether they knew his name necessarily, although it's

3 clear from the findings that the propaganda campaign was such. It was --

4 the findings are throughout the judgement that the propaganda campaign was

5 a major way of implementing the strategic plan, and that the findings are

6 clear that every -- everybody knew of what was going on.

7 Now, the fact that maybe one person does not know the exact name,

8 that's not really that important. What is important is that the only

9 reasonable conclusion is that Brdjanin, he knew that the goal of the

10 strategic plan could only be achieved with -- could not be achieved

11 without the physical perpetrators, and he worked with them. The physical

12 perpetrators, they were aware that they needed the leadership, the

13 propaganda, and the support provided by the leadership. And who was in

14 that leadership? Who was the number one in that leadership in terms of

15 the highest? He was the president of the civilian authority. That was

16 Mr. Brdjanin.

17 Your Honours, I've tried to be as quick as I could while covering

18 all the points that we needed to cover. Mr. Ackerman also addressed on

19 omission, where the duty lies for omission liability. I didn't deal with

20 this in my rely today. My colleague Ms. Goy tomorrow will be addressing

21 you on this question and setting out the Prosecution's position on it.

22 Those concludes my submissions. Thank you very much.

23 JUDGE MERON: Thank you, Ms. Brady, for your argument.

24 And now we will adjourn until 9.00 in the morning when we will

25 come to the submissions by the Defence. So it will go back to

Page 128

1 Mr. Ackerman tomorrow morning at 9.00.

2 And I thank the parties, and I thank my colleagues, and have a

3 good evening.

4 --- Whereupon the hearing adjourned at 6.14 p.m.,

5 to be reconvened on Friday, the 8th day

6 of December, 2006, at 9.00 a.m.