1 Tuesday, 10 June 2008

2 [Open session]

3 [Prosecution Closing Statement]

4 --- Upon commencing at 9.01 a.m.

5 JUDGE MOLOTO: Good morning to everybody in and around the

6 courtroom.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good morning, Your Honours. Good morning

9 everyone in the courtroom. This is case number IT-04-83-T, The

10 Prosecutor versus Rasim Delic.

11 JUDGE MOLOTO: Thank you very much. May we have the appearances

12 for today, starting with the Prosecution.

13 MR. MUNDIS: Thank you, Mr. President. Good morning, Your

14 Honours, to my learned colleagues from the Defence, General Delic, and

15 everyone in and around the courtroom. For the Prosecution, Daryl Mundis

16 Matthias Neuner Laurie Sartorio, Kyle Wood and Aditya Menon, assisted by

17 our case manager Djurdja Mirkovic.

18 JUDGE MOLOTO: Thank you very much.

19 And for the Defence.

20 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

21 morning to my learned friends. Good morning to everyone in and around

22 the courtroom. Vasvija Vidovic and Nicholas Robson for General Rasim

23 Delic. Our assistants are Lana Deljkic, Lejla Gluhic, and Asja Zujo. We

24 also have an intern Claire Bonnel. Thank you.

25 JUDGE MOLOTO: Thank you very much.

1 Mr. Neuner.

2 MR. NEUNER: Good morning.

3 JUDGE MOLOTO: Good morning.

4 You may proceed, Mr. Neuner.

5 MR. NEUNER: I'm just waiting for the computer screen. Thank

6 you, Your Honours.

7 I just want to give two small addendums relating to yesterday's

8 part, because I couldn't bring the references for Your Honours' benefit.

9 And I'm referring to the indicator that's the first question, I believe,

10 question number 5, I tried -- or question number 8 I tried to address

11 yesterday. The indicator was that ARBiH officers led ARBiH soldiers who

12 were subordinated to the El Mujahedin Detachment; and in so far, I'm

13 referring to page 76, lines 2 to 9 of yesterday's transcript.

14 And I want -- I didn't know the exhibit. It is Exhibit 702,

15 which is displayed here, Your Honours. It's from the 5th Mountain

16 Battalion, an order; and I referred to Mr. Zilkic yesterday.

17 You see in the first highlighted line: Pursuant to the verbal

18 order issued by the commander of the 328th Brigade, that's Mr. Zilkic.

19 Pursuant to that verbal order, Mr. Ahmet Sehic, who testified in front of

20 Your Honours, issued this order: Number one, to select 30 men to carry

21 the wounded. And in number four, Your Honours see that these men should

22 be resubordinated to the El Mujahedin Detachment to carry the wounded.

23 And number 3 is the point that the Prosecution was referring to

24 yesterday. You can see what Mr. Sehic directs: The responsible officer

25 in charge of this group shall be the 2nd Lieutenant Husein Fazlic,

1 commander of the logistics platoon.

2 So you have here, Mr. Sehic not only sending ordinary soldiers to

3 carry the wounded, as the second echelon during combat activity involving

4 the EMD, you have Mr. Sehic also sending one of his officers to go with

5 the group, and obviously look and supervise the task.

6 The second addendum, I talked about it only orally, fixing the

7 start time for Proljece 2. This was part of the presentation on oral

8 meetings before, during, and after joint combat. I didn't have the

9 reference; and, yesterday, this is transcript page 80, lines 12 to 13.

10 I have now have found PW-9's statement, consolidated Rule 92 ter

11 statement; Exhibit 826, paragraph 212. What did Mr. PW-9 tell Your

12 Honours? That the second operation started on the 22nd of July, and the

13 exact time of that operation was agreed in the 35th Division command at

14 the meeting. So there was a meeting prior to Proljece 2, the

15 July operation; and in the 35th Division, the El Mujahedin Detachment

16 showed up and the time, the exact time was agreed to.

17 Moving on to the Defence pre-trial brief, paragraph 670,

18 Your Honours. It is alleged by the Defence that the Prosecution has not

19 presented any evidence that Delic knew that the EMD was taking part in

20 Operation Farz. We say that Delic, indeed, knew that the EMD remained on

21 the Vozuca battlefield after Operation Proljece 2.

22 I have addressed the issue of Mr. Delic's knowledge, in our view

23 at least, that he knew about the participation of the EMD before

24 Proljece 2. And then during the ongoing Proljece 2, Your Honours have

25 seen this yesterday, Exhibit 582, this document was received. It's a

1 bulletin talking about wounded during the Operation Proljece 2, and it's

2 mentioned that 15 members out of 18 killed, 15 out of 18 soldiers killed,

3 were from the El Mujahedin Detachment, which corresponds to what the

4 Prosecution believes is the first echelon. The El Mujahedin Detachment

5 is an assault detachment, therefore its soldiers get primarily killed.

6 We now submit, in relation to Farz, that after

7 Operation Proljece 2 was over, Delic was never -- Commander Delic was

8 never informed that the El Mujahedin Detachment had left the Ozren-Vozuca

9 battlefield, nor that they had even the intention to leave the

10 battlefield. Hence, the only logical conclusion is, if I as a commander

11 order subsequent combat activity -- combat activities, who is going to

12 take part? We have seen that the El Mujahedin Detachment soldiers were

13 primarily killed in the first operation, Your Honours, in the

14 Operation Proljece 2, in July.

15 On the 2nd of August 1995, Your Honours have heard evidence that

16 Mr. Delic visited the 35th Division headquarter in Zavidovici.

17 Operation Proljece 2 was almost over, and he is visiting with

18 Mr. Mahmuljin - that is Exhibit 460 - the 3rd Corps commander who

19 definitely knows what his subordinate unit, meaning the El Mujahedin

20 Detachment, is going to do or is not going to do. Mr. Delic was visiting

21 the 35th Division which was, in the Prosecution's view, running

22 Proljece 2 operation, commanding it in the chain of command of the ARBiH.

23 On the 4th of August, 1995, there's a bulletin, Exhibit 740,

24 which states that: After the loss of these positions of the

25 328th Mountain Brigade, rumours start in Zavidovici. And, again, it is

1 misinformation according to the authors view of the bulletin, but there

2 is a quarrel reported, probably a misinformation, between members of the

3 EMD and the 7th Muslim Brigade over war booty. So, in our view, it is a

4 clear indication that, obviously, the El Mujahedin Detachment is not

5 passive in the zone of the 35th Division, but there are rumours about war

6 booty, about whether there is combat activity or not involving the

7 El Mujahedin Detachment.

8 JUDGE HARHOFF: Mr. Neuner, was the EMD present at the meetings

9 when General Delic visited the 35th Corps in August?

10 MR. NEUNER: This is a point which I left out consciously. As

11 far as I can recall, Mr. Hasanagic testified that Mr. Aiman Awad was

12 seen, I believe, entering the building while either he himself entered

13 the building or Mr. Delic himself - I don't know myself - and that there

14 was a meeting going on without him, as far as I understood, without

15 Mr. Awad.

16 Then Mr. Hasanagic's evidence was - I don't want to comment upon

17 it - not clear, maybe, in the sense that he only saw him, Mr. Awad,

18 going through the corridor. And there was a separate meeting; and as far

19 as I have recollection now, he could not recall who was present at this

20 meeting, including whether Mr. Awad was present at the meeting. So,

21 therefore, I left this point out because I thought the Prosecution should

22 not address this point.

23 It is for Your Honours to decide what, if any, conclusion to draw

24 from this.

25 I want to address briefly the Vranduk reporting. Your Honours

1 have heard that the propensity of the El Mujahedin Detachment to commit

2 crimes and the reports about these crimes is contentious between the

3 parties. And Mr. Vuckovic was asked generally about a Vranduk document,

4 dating from 7 November 2007, roughly towards the end of the war. It's

5 transcript page 5185, and the Exhibit is 662.

6 And Mr. Vuckovic stated that the results of Vranduk were

7 delivered to the head of the military security administration. He was

8 asked and he stated yes. This is Mr. Jasarevic, Your Honours.

9 Mr. Buljubasic, the chef de cabinet -- one of the chef de cabinet

10 of Mr. Delic, in his 92 ter statement, paragraph 5, Exhibit 816, told

11 Your Honours: Rasim Delic also met with General Hajrulahovic, Jusuf

12 Jasarevic, and Fikret Mumovic. And he continues: Written communication

13 between Rasim Delic and Jusuf Jasarevic was more frequent. Their

14 meetings weren't more frequent than those which Rasim Delic had with the

15 other chiefs of administration. The meetings with Mr. Jasarevic were

16 based upon need.

17 Again, Mr. Vuckovic told Your Honours, Exhibit 706, paragraph 33,

18 the 92 ter statement, that Commander Delic was regularly informed through

19 bulletins and, of course, at the meetings with the chief of the Security

20 Administration, Jusuf Jasarevic.

21 Can I ask that we move into private session Your Honours.

22 JUDGE MOLOTO: May the Chamber please move into private session.

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4 [Open session]

5 THE REGISTRAR: Your Honours, we're back in open session.

6 JUDGE MOLOTO: Thank you very much.

7 Yes, Mr. Neuner.

8 MR. NEUNER: I want to address the last topic. The Defence's

9 denial that three ARBiH combat activities involved either the Mujahedin

10 from Poljanice or the EMD, and I'm referring to Karaula, Vitez, and

11 Teslic. Your Honours, we have address that issue already indirectly in

12 paragraphs 53 and 54 of our final trial brief. Just some remarks.

13 This is in relation to Karaula. Combat until November, from

14 September until November 1992. If Your Honours look at the last line:

15 According to Adilovic, they were not fighting with the ARBiH, referring

16 here to the Mujahedin. We say the Mujahedin fought with and were under

17 the subordination of the ARBiH in Karaula.

18 Ali Hamad told Your Honour, the Presiding Judge, this very fact.

19 Page 19 and 20 on the 7th of September 2007: Your Honour, the Presiding

20 Judge, asked: Were there any other military forces in the area known as

21 Karaula?

22 And Mr. Hamad told or answered: Yes. There were members of the

23 Croatian defence counsel at the time, we cooperated with the HVO; or

24 rather, the Bosniaks cooperated with the HVO, and we, as foreign

25 Mujahedin who were a part of the Bosnian units, had to respect that.

1 And Your Honours clarified: What do you mean by Bosniaks?

2 Mr. Hamad replies: I'm thinking precisely of members of the army

3 of -- ARBiH. Mr. Hamad, being involved over a month in Karaula, feels as

4 a part of the ARBiH.

5 The second denial relates to Vitez. Combat occurring when the

6 El Mujahedin Detachment is already formed. We say, in the OTP, the EMD

7 indeed participated in combat in Vitez in September 1993, and the ARBiH

8 knew about it.

9 Why? Mr. Awad testified to Your Honours, page 59 and 60 on the

10 8th of February, 2008: "There was a meeting with unit commanders." It

11 was related to combat operations, Your Honours. Vitez: "Wahiuddin was

12 called to the meeting."

13 Mr. Awad is asked: Who was also present? Mr. General Mehmed

14 Alagic, he replies.

15 Then he goes on: "There wasn't a lot of talk. Wahiuddin just

16 presented the facts that people were on the ground and that these combat

17 operations needed to be continued. As far as I understood, there had

18 already been an attack and that it should be continued.

19 First of all, we say that this is reporting, Your Honours.

20 Wahiuddin, the then-military commander, is summoned by Mr. Alagic to a

21 meeting. He is not only showing up; he is reporting.

22 And then what comes out of that meeting, Mr. Awad continues: "We

23 returned," referring to the El Mujahedin Detachment, "Wahiuddin and

24 myself to Kruscica, where the El Mujahedin Detachment unit was stationed,

25 and then they tried to carry out an attack against a position called

1 Crveno Brdo, I think. But we had many wounded, high losses, and we

2 couldn't reach that spot where the men were assigned to go.

3 The operation was not successful, but Your Honours see.

4 I want to deal with the last denial, and this is combat in

5 OG North in 1994, paragraph 895 of the Defence pre-trial brief: The

6 EMD's military emir, Muatez, refused to permit the EMD to participate in

7 the action at Pisana Jelika and Visoka Glava.

8 And the last words: The EMD carried the action independently

9 when it thought it should do so, despite the 3rd Corps order for joint

10 action with other units.

11 Just to recap. Exhibit 837 tells Your Honours it is a 3rd Corps

12 attack decision on the 20th of August, 1994. Number two is the

13 El Mujahedin Detachment which should take Pisana Jelika and Visoka Glava.

14 Just have a look at other highlighted portions, elevations 611 for

15 the 330th Mountain Brigade, 319th Mountain Brigade should attack Hajducka

16 Kosa, SDB, and others elevations 732 [sic].

17 This is ordered on the 30th of August, 1994. Judge Lattanzi

18 asked then PW-9, on 5601, transcript page, line 8 to 12 on the 15th of

19 November: "The plan that the El Mujahedin Detachment prepared

20 independently, was it approved by the units that were hierarchically

21 above the EMD?

22 PW-9 replied: "Once the operation had been planned, the command

23 or the commander of Operations Group 3 North was informed."

24 Operations Group 3 North, between the 20th of August and

25 afterwards, is informed that there is a plan from the El Mujahedin

1 Detachment. And eight days after the decision for attack, we see here

2 Exhibit 838. And I ask Your Honours to remember the features. Hajducka

3 Kosa, highlighted here, is obviously taken because it refers to

4 "yesterday": "On the 22nd of August," the first word, "yesterday, on the

5 22nd of August, there were offensive combat operations."

6 And what does the report say?

7 "We broke through the Chetnik lines of defence and reached the

8 line between," and so on. Then the positions are listed, Hajducka Kosa,

9 K-734. I have highlighted this to Your Honours. These are the other

10 units. That is the SDB who took K-734, and dugout was captured in the

11 K-611 sector. I have highlighted this, Your Honours. Another unit was

12 supposed to take this sector. And units of the EMD successfully took

13 control of both features specified in the task, Pisana Jelika and Visoka

14 Glava. And, please pay attention to the last sentence: The 7th Muslim

15 Mountain Brigade is linking up with the EMD on a new line.

16 There is each unit achieving its goal, as ordered seven days ago;

17 and the 7th Muslim Brigade, at least, is linking up with the El Mujahedin

18 afterwards. This is ARBiH directed combat in the Prosecution's point of

19 view.

20 Paragraph 895, this is a later operation on OG North; again a

21 denial by the Defence. The EMD carried out the action independently when

22 it thought it should do so, despite the 3rd Corps order for joint action

23 with other units. They did not follow, the Defence alleges, the

24 3rd Corps order regarding the action on Kajin Sopot in October 1994. The

25 previous comment was 27 August 1994. About two months later, denial by

1 the Defence.

2 We say the EMD attacked Kajin Sopot in accordance with ARBiH

3 orders. What happens more than two weeks before the attack on Kajin

4 Sopot, 16th of September, 1994: The 3rd Corps commander orders - that's

5 Exhibit 1128 - that the 3rd Corps engineer battalion is to do something,

6 to resubordinate immediately one pioneer squad of the 3rd Corps engineer

7 battalion to the EMD.

8 For what purpose? The order is clear: For the forthcoming

9 combat operations in the area of responsibility of 3 North, 16th of

10 September, 1994.

11 The post-combat report of 3rd Corps, Your Honours, Exhibit 839

12 informs you: On 3 October units of the OG 3 North carried out attacks

13 along several axes; number one prominently. The EMD coordination with

14 part -- in coordination with part of forces of the 319th. In August,

15 they fought together. Occupied the features of Kajin Sopot, Previja, and

16 Brdo.

17 Just want to focus to the last line of the reporting of the

18 3rd Corps: The units linked up and took positions along the new line of

19 defence. Again, a link up between the units after the combat: Kajin

20 Sopot, Previja, and Brdo, Your Honours. We believe that is clear.

21 In conclusion, I just want to move out. I want to refer to a

22 statement of Mr. Awad, referring to the El Mujahedin Detachment or the

23 Mujahedin from Poljanice: "We would have a small sector for attacking,"

24 Mr. Awad told Your Honours," but we cannot do it alone. When 100 men

25 enters a forest, a wood, they can cover not even 50 metres, not to

1 mention a kilometre or more."

2 What does that mean? The El Mujahedin Detachment alone could not

3 do it. They were subordinated, in our view, because any convert with

4 hundred of men. If Your Honours think about Maline, how can you take

5 with 50, 60 -- I don't want to give a precise number. The unit was being

6 built up. How can you take with a few men an area such Maline, such as

7 Guca Gora. You cannot do it alone.

8 Thank you, Your Honours.

9 JUDGE MOLOTO: Thank you.

10 Madam Vidovic.

11 MS. VIDOVIC: [Interpretation] Good morning, Your Honours, once

12 again.

13 JUDGE MOLOTO: Good morning.

14 [Defence Closing Statement]

15 MS. VIDOVIC: [Interpretation] Your Honours, I would first like to

16 explain to you how the Defence intends to present its closing arguments

17 on behalf of General Rasim Delic.

18 Unlike the Prosecution, we will first be dealing with the issues

19 related to command responsibility over the so-called Poljanice group and

20 the El Mujahedin Detachment. I will be speaking about command

21 responsibility in this case, and I will also deal with the purported

22 assessment of the availability to the Trial Chamber; and my colleague

23 Mr. Robson will speak about the relate events from June 1993, including

24 the requirements from Article 7(3) of the Statute, and the crime base

25 related to July and September 1995.

1 JUDGE MOLOTO: I'm sorry to interrupt you, Madam Vidovic.

2 MS. VIDOVIC: [Interpretation] Yes, of course.

3 JUDGE MOLOTO: I hope you are not going to repeat what is in the

4 final brief; however, if you can concentrate mainly on the questions

5 raised by the Bench, that would be very helpful.

6 MS. VIDOVIC: [Interpretation] Your Honour, I will be focussing on

7 the questions asked by the Trial Chamber, and I will focus on those

8 questions or -- yes, on those questions that require an answer in light

9 of the Prosecution brief.

10 As regards the questions, Your Honours, let me explain that I

11 will be dealing with some of the questions, my learned colleague

12 Mr. Robson with others; and I will be answering those questions in the

13 context of my closing arguments, if you allow me to do so.

14 Your Honours, it is a great responsibility to stand here and to

15 present a closing arguments before you after almost a year of trial time

16 because so much is at stake. Now we're in a situation where the Trial

17 Chamber is going to withdraw to deliberate, and what we expect from you

18 is justice. We do not expect and we do not call for an acquittal that

19 would be influenced by any factor that goes beyond this case. The facts

20 in this case speak for themselves, and they speak clearly in favour of

21 such a verdict.

22 The Prosecution approach to this case was to generalise matters.

23 Its theory, its case, was and, indeed, remains unclear. From the very

24 beginning, the case was uncompelling. It is also unfounded. They

25 construed and constructed facts. They used fabricated orders to bring

1 General Rasim Delic into the dock.

2 Your Honours, you will remember the purported orders for the

3 attack on Vozuca on the 16th and 17th of July, 1995, Exhibits 496 and

4 494; and you will recall the purported order for an attack on the same

5 area on the 26th of August, 1995. Your Honours, those orders did not

6 exist, and we explained that.

7 The Prosecution gives different interpretation or meaning to the

8 documents because those who -- their own witnesses give a completely

9 different interpretation. And, here, invoke Exhibit 400, the plan of the

10 coordination of the General Staff of the ARBiH for September 1995; and

11 Exhibit 600, the plan for the coordination of General Staff for

12 August 1995; and the comments made by Witness Sead Delic, 20th of

13 September 2007, transcript page 2735; and Ismet Alija, the date is 16th

14 of October, 2007, transcript page 4137, in relation to those documents.

15 When the Prosecution lacks arguments, it resorts to

16 mistranslation. Although it is aware of the fact that the translation is

17 erroneous --

18 [Trial Chamber confers]

19 MS. VIDOVIC: [Interpretation] Is it okay?

20 JUDGE MOLOTO: Slow down a little bit, Madam Vidovic.

21 MS. VIDOVIC: [Interpretation] Thank you very much.

22 So when the Prosecution lacks arguments, it resorts to

23 mistranslation. Although it is aware of the fact that the translation is

24 wrong, and although it was duty-bound to remove the mistranslated

25 documents from the record, because transcripts have made it clear that

1 this is what it was, a mistranslation. And, here, I refer to Exhibits

2 444, where key words from the documents such as, for instance, the word

3 "obracanje," addressed by General Delic, was translated as instructions;

4 E-25, the word that you were able to see yesterday, "staresina," senior

5 officer, was translated as commander; and E-364, the word "posijetjo,"

6 visited, was translated as inspected.

7 This is by no means an exhaustive list. This happened every time

8 when we were dealing with a key document for this case, and every time it

9 had a direct link with Rasim Delic. This is the way in which the

10 Prosecution has tried to construct their case. That's not a case at all.

11 This is just an illusion, and we believe that the Trial Chamber will

12 reject those arguments. We believe that the Trial Chamber will not apply

13 the legal theory whereby the accused, who was, as the Prosecution

14 allegations, at the top of the hierarchy, which included the El Mujahedin

15 Detachment, should be convicted simply because he was at the top of this

16 hierarchy.

17 The Honourable Trial Chamber may convict our client only if it

18 manages to find a direct and specific nexus of the incidents that are

19 charged with the accused and his specific knowledge of the crimes, not of

20 crimes committed by just anyone, but crimes committed by his

21 subordinates. Evidence called in this case do not support this.

22 Before I move on to some specific issues related to command

23 responsibility, I would like to say something about the suggestions made

24 by the Prosecution related to the approach that you should take in

25 evaluating evidence. Paragraphs 10 through 16 of the Prosecution final

1 brief, it is -- the Prosecution actually gives you advice how to assess

2 the credibility of the witnesses, presenting a series of insinuations

3 about the witnesses that are not appropriate for a criminal court.

4 For instance, the Prosecution says some witnesses tell the truth

5 about some things, and they could not tell the truth about some other

6 things. Some exaggerate in certain aspects of their testimony, either

7 because of their role or the role of their family in the war.

8 Which witnesses are we talking about? What things that they tell

9 the truth or do not tell the truth about? What aspects? Whose aspects

10 of whose testimony? We don't know that. We were not told.

11 In the courtroom here, we did not hear a single word about

12 anyone's involvement or the involvement of anyone's family in the events

13 of the war. The Prosecution did not call any evidence about that. No

14 questions of this nature were ever asked of any of the witnesses.

15 So what is the Prosecution talking about? The Defence, Your

16 Honours, does not know that.

17 If the Trial Chamber were to adopt the approach that the

18 Prosecution wants it to, it would really sink very low. It would indeed

19 hit rock bottom, and this Trial Chamber, I'm sure, will not allow itself

20 to do so.

21 The Prosecution talks about many witnesses, ARBiH members who

22 spoke about foreign fighters, about BH army members who are still serving

23 or who have been recently retired; paragraph 14.

24 The Defence called many witnesses; indeed, more than half of its

25 witnesses did not speak about any foreign fighters. Only one Defence

1 witness is still active, not in the army, but in the Ministry of Defence.

2 None of the Defence witnesses have retired recently. So, as far as I can

3 see, the Prosecution invites you not to believe its own witnesses.

4 The Prosecutors tell you that they gave evidence about foreign

5 fighters, El Mujahedin Detachment members, in order to put some distance

6 between the BH army and the serious crimes in which members of this

7 detachment were involved; and they tell you that even though those

8 members of the El Mujahedin Detachment, six of them who took the stand as

9 Prosecution witnesses, were never asked any questions about involvement

10 in those crimes, their involvement, or the involvement of their fellow

11 fighters from the detachment.

12 Now they invite you to take the sword of injustice into your

13 hands and to cut out those segments from the transcripts and the evidence

14 of most of the Prosecution witnesses to find the accused guilty. They

15 want you to set aside a huge number of substantial exculpatory evidence

16 presented by those witnesses for a very simple reason: They do not have

17 an answer to those facts. Their only answer is they were, or they still

18 are, members of the BH army and they are not to be trusted, except when

19 their evidence supports the charges. One guesses, then, that at that

20 time, they're telling the truth.

21 I ask myself what universe does the Prosecution live in if it

22 believe this is this is an appropriate approach to a criminal trial? How

23 can the Prosecution suggest to you that you should not trust the

24 witnesses that they called to testify before you under oath? How can

25 they suggest to you that you should not believe what their witnesses say,

1 yet they never try to the impeach those witnesses, at all; and they did

2 not do that for any of their witnesses. If they thought those witnesses

3 were not telling the truth under oath, they were under a professional

4 obligation to call them to task immediately, yet they never did that. In

5 other words, they believed them.

6 Now they don't like the outcome of their testimony, and they

7 invite you not to put any trust in them. Even if you wanted to do what

8 the Prosecution has suggested you should do, you would put yourself in an

9 unenviable situation, a serious situation, indeed, because it would have

10 legal consequences.

11 This is a situation where it is not only about whether you should

12 believe or not believe their witnesses. What this is all about is that

13 the Defence had the right to take into account the facts that the

14 Prosecution witnesses testified about certain issues and that the

15 Prosecution did not attempt to impeach or discredit those witnesses. We

16 were completely entitled to decide not to call some evidence because

17 those issues were explained by their own witnesses and it was not

18 challenged. That's what we did.

19 Were that not the case, Your Honours, you would have seen 50

20 Defence witnesses before this Court, given the fact that the Prosecutor

21 on various occasions challenged the credibility of their own witnesses.

22 You have your witnesses and yet you don't lent them credence.

23 This is something that the jurisprudence has already dealt with in the

24 Brdjanin case on the 24th of January, 2002, page 805. The Trial Chamber

25 drew the following conclusion: If at any point during his testimony a

1 witness turns on you and disrupts your plans with that witness as one's

2 own witness, then evidently you're facing a very difficult situation.

3 You will no longer be allowed to impeach the witness before you obtain

4 the Chamber's permission to do so.

5 This same approach was taken by the Trial Chamber in its oral

6 decision in the Limaj case on the 1st of February, 2005. At no point in

7 time did the Prosecutor try to seek the Chamber's leave to declare a

8 witness hostile. I can't call upon you now to view their own witnesses

9 as not credible. I can't ask you to not believe them.

10 They didn't impeach those witnesses, and they didn't declare them

11 hostile. Why, Your Honours? Because you, the Chamber, would then have

12 heard the sordid truth about the investigation behind this trial. You

13 would have heard what the witnesses had to go through and what methods

14 the OTP used in obtaining evidence in order to be -- in order to be able

15 to raise this indictment.

16 Their witnesses or, for that matter, the Defence witness from

17 their list, did, after all, tell you a thing or two about the

18 Prosecutor's modus operandi. Karahasanovic, on the 4th of April 2008,

19 page 8135, describes his interview with an OTP investigator about the

20 perpetrators: "Yes. I did say that a group of Arabs arrived. He then

21 asked me whether the unit was the El Mujahid Unit. I said I didn't

22 know," yet he was adamant - excuse me - that this was the El Mujahid Unit

23 because "that was the only unit around," as he said, "which meant that it

24 couldn't possibly have been anyone else."

25 Your Honours, yesterday, they used the statement taken from Izet

1 Karahasanovic to buttress their own evidence, but they failed to say how

2 they obtained that evidence. They were adamant that he should say the El

3 Mujahedin Detachment, although the man was actually saying Arabs.

4 Although they have that list which they have made ample use of as

5 evidence, where he entered into his own handwriting the following

6 wording: "Those people were taken by the Arabs," and "the Arabs" was the

7 word used, not the El Mujahid Detachment.

8 Husic, describing his interview with Investigator Koehler, on the

9 14th of March, 2008, page 7579: "He told me, among other things, that

10 anyone who spent four years in a war might find himself caught up in a

11 situation where others were asking themselves what his possible

12 involvement might have been. I felt that this was a kind of threat, and

13 that is why I refused to go on working with them."

14 Husic, again on the 14th of March, 2008, page 7578, describes the

15 way in which the Prosecutor drew up his statement. He said: "It is

16 frustrating for me, but I don't see here the questions that I was then

17 asked. They were not included in the statement, and my answer was placed

18 in a different context of other questions that are now being asked."

19 Zilkic, on the 13th of November, 2007, page 5408, explains the

20 discrepancy between the evidence given to the Prosecutor and in court.

21 He says: "They said some things and they expected certain answers. Was

22 it like this? Was it not like this? Perhaps I said this? Perhaps I

23 said that? But, I believe, that at least to some extent, this was

24 forcing my hand."

25 My question was: "Forcing your hand, what do you mean?

1 Answer: "I was coerced into making a statement. My hands were

2 tied. I had no choice."

3 On the 25th of September, 2007, in response to the Prosecutor's

4 request that written statements be admitted under Rule 92 ter, we

5 described to you the risk, the risk being that such evidence was not

6 obtained in a fair and proper way. We described several examples. One

7 of the witness was literally told by the Prosecutor: "I see a smile on

8 your face; and I think that if you read something like this, it is really

9 repulsive what they did to someone who fought for the BH army and who did

10 his best for Bosnia and Herzegovina."

11 Your Honours, they adopted the most atrocious means in order to

12 influence witnesses, the most atrocious and cruelest means; and that is

13 why the Prosecutor decided to bear their time waiting for the witness in

14 this case to turn their backs before they said that those witnesses

15 should not be trusted. Had that not been the case, these are the answers

16 they would have heard.

17 The Prosecutor chose their own witnesses, despite the fact that

18 they had heard many other witnesses they could have brought here, ranging

19 from top-ranking politicians to religious figures.

20 Be that as it may, Your Honours, the most important thing is

21 this: The Prosecutor now suggests that their own witnesses were not

22 telling the truth about the relations between the BH army and the

23 El Mujahid Detachment. But that is simply not true. It wasn't just

24 members of the BH army that gave evidence about this. There were several

25 groups of witnesses that talked about control that was exercised over the

1 Mujahedin, generally speaking, in the El Mujahedin Detachment.

2 First of all, members of the BH army, and that is who the

3 Prosecutor is talking about. The following group is members of the

4 El Mujahid Detachment: Six of them, one of them Arab; and then there was

5 a Croat witness who had nothing to do with the El Mujahid Detachment or

6 the BH army for that matter; and, finally, Your Honours, Croat and Serb

7 victims themselves.

8 Yesterday, the Prosecutor showed two slides that had to do with

9 witness evidence. Both of the witnesses in question describe a situation

10 that Your Honours will no doubt remember: Members of the BH army were

11 doing their best to keep the Mujahedin from gaining access to the

12 prisoners; or rather, they did their best to protect them from the

13 Mujahedin.

14 Based on all this evidence, including the evidence given by

15 victims, there is but one conclusion that is possible. The BH army

16 commands were in control neither of the Mujahedin, nor of the El Mujahid

17 Detachment specifically. The OTP are telling you exactly what the

18 Defence are trying to prove. The El Mujahid Detachment was out of

19 control. What they're saying, however, is a form of revisionism. That

20 is why they are advising you to be cautious.

21 The first question, Your Honours, is this: How can the

22 Prosecutor reconcile this statement with much of the evidence found at

23 the Islamic Cultural Centre in Milan? This evidence is derived from a

24 completely neutral source. It offers incontrovertible truth on who

25 controlled the Mujahedin across the Bosnia and the El Mujahid Detachment

1 specifically, and how. Based on these documents, it is clear that they

2 were not under the control of the BH army, and least of all under the

3 command of General Rasim Delic.

4 Exhibit 394 [as interpreted]. Could we please look at Exhibit

5 394 -- 1394. This is a fax sent by the El Mujahid Detachment to the

6 Islamic Cultural Centre in Milan, 7th of March, 1995.

7 JUDGE MOLOTO: Sorry, Madam Vidovic. Is it exhibit 394 or

8 exhibit 1394.

9 MS. VIDOVIC: [Interpretation] Your Honours, 1394, and we have it

10 here in front of us.

11 JUDGE MOLOTO: Thank you very much.

12 MS. VIDOVIC: [Interpretation] This is a fax message, dated the

13 7th of March, 1995, sent to the Islamic Cultural Centre in Milan.

14 The El Mujahid Detachment explains its relationship to the BH

15 army: "When the detachment was established and recognised by the BH

16 army, the recognition did not necessarily mean acceptance. For proof,

17 you have the following: The detachment turned down a number of

18 operations that the army tried to foist on it because they were to

19 dangerous. This was the reply sent by the detachment's military command

20 and military council. Therefore, had the detachment been carrying out

21 orders by the army without any right to dispute their orders, they would

22 have carried out these operations, and Allah knows best."

23 That is what they said.

24 However, speaking of this theory of revisionism, I wish to say

25 that this is something that is beyond the bounds of this case, and I'm

1 convinced that the Chamber will not pay this the slightest heed. The

2 Chamber has the evidence right there, no more and no less.

3 The OTP have no right to talk about history. They have no right

4 to talk about revisionism, not as far as the BH army is concerned. It

5 has already put into the dock several high-ranking officers of the BH

6 army. The verdicts speak for themselves.

7 What exactly do they tell us? They tell us that the OTP know

8 precious little about the historical aspect of the war in Bosnia and

9 Herzegovina, despite which they use a lot of politics and a lot of morale

10 relativism in terms of dishing out the blame for the war in Bosnia and

11 Herzegovina.

12 I will now reply to their theory as to what weight should be

13 awarded to written documents.

14 Your Honours, again, you're being told to disregard witness

15 evidence. Again, you are being told to take into account written

16 documents because many of those deal with substantial issues, issues of

17 life and death, as they put it.

18 Your Honours, I'm looking at their case, and I fail to see a

19 single document about issues of life and death. We, the Defence, have

20 shown a number of those, not the OTP, however. One thing I can tell you

21 is that their theory about the importance of written documents does not

22 surprise me in the least. Their entire case was run like this: They

23 would bring a witness; show him a document; and then ask, "Do you agree

24 that such-and-such person produced this document and that the document

25 states this or states that"; after that, as a rule, they would tender the

1 document.

2 What did the witness really know about the developments described

3 in a certain document? What did the witness know about the importance of

4 a given document? They hardly ever asked those questions, did they? A

5 different thing all together is how they got hold of certain maps, which

6 they have made ample use of both in their final brief and there their

7 closing argument.

8 Your Honours, look at the transcript. They would normally quote

9 a number of lotions to a witness and then ask them to link them up by

10 using arrows. Yesterday, for example, they used a map drawn by Sinan

11 Begovic, in order to purportedly portray the movements of the Mujahedin

12 at the time of the Maline operation; although, Sinan Begovic, at the

13 time, wars in actual fact not even with the Arabs, nor, indeed, was he

14 observing their movements.

15 Sinan Begovic, on the 134th of July:

16 "Question: You mark this on the map, right?

17 "Answer: Yes. We did that yesterday or the day before.

18 "Question: In actual fact, you weren't with the Arabs at all at

19 the time, were you?

20 "Answer: No, I wasn't.

21 "Question: You weren't able to observe their movements?

22 "Answer: No. We simply heard about the directions or axes along

23 which they were moving, but I didn't see this for myself."

24 Sinan Begovic, therefore, heard about their movements, directions

25 or axes. That is what he said, and yet, here, you have a map where the

1 same Sinan Begovic actually draws this based on hearsay.

2 The OTP tell us that they led evidence about how documents were

3 sent or received. In actual fact, many documents were shown to

4 witnesses, many documents were used in the OTP's final brief, E-658

5 E-641, E-111, E-797, that witnesses described as drafts, mere drafts.

6 There were many documents that witnesses clearly described as not

7 reflecting the reality.

8 Jusic, a Prosecution witness, on the 19th of September, 2007,

9 commented on Exhibit 111, and said: "I can't be shown anything that

10 would change my mind, regardless of what I see written here. I know and

11 I believe that they caused nothing but damage. They should have never

12 come to Bosnia in the first place. So if this is meant to refute what I

13 said, then this in no way affects me. I have read what is written here,

14 and I disagree with 80 per cent of this statement praising the

15 El Mujahedin Detachment."

16 This was one of their own witnesses. There were many documents

17 that witnesses described as never implemented. Sljuka, on the 23rd of

18 October, for example: "I can't remember all the orders pursuant to which

19 the El Mujahid Detachment arrive in the area of responsibility of the

20 35th Division. However, when I talking about this, I meant no more than

21 the following: I meant that the El Mujahid Detachment failed to comply

22 with the orders given by the commander of the 35th Division." He was

23 unable to exercise command over this unit.

24 This again, is something that was stated by an OTP witness, a

25 member of the 35th Division. In fact, although we challenge the

1 authenticity of many of the documents, the Prosecution never tried to

2 prove their authenticity or chain of custody. In lieu of that, the

3 Prosecution tendered into evidence Exhibit 924, a statement made by

4 Mr. Sadinlija, the head of the BH army archives. And when you read this

5 statement, you will learn that Mr. Sadinlija, in fact, does not know

6 anything about what happened to the documents until his arrival to the

7 archives as the head. You will learn much about the way that the

8 Prosecutors seized those documents.

9 In paragraph 27, Your Honours, you will find that Mr. Sadinlija

10 said: The archives personnel were asked to leave the room where

11 documents were being inspected, and the personnel complied.

12 This is what Mr. Sadinlija said: "They asked us to leave the

13 premises of the archives while they inspected the documents, and we

14 complied."

15 Again, in paragraph 31, you will see that in 2003, the entire

16 Tuzla archive was removed and that the originals have never been returned

17 to the BH army archives. Paragraph 39 tells us that a huge number of

18 documents were inspected and that, at the end, the archives -- the

19 archive merely received a list of those documents. And, finally, that

20 Investigator Koehler did not ask for any determination of the

21 authenticity of either the documents or the list.

22 Your Honours, you have had an opportunity to look at Exhibit 165,

23 tendered through Witness PW-3; and then all of a sudden we have the same

24 document now, as Exhibit 378, with a chart showing the position of the

25 El Mujahedin Detachment within the 3rd Corps, and this was given another

1 exhibit number, 379.

2 The Prosecutor used this document and refers to it in

3 paragraph 98 of its final brief; although, if you look at the last page

4 of this document, you can see that this document has a completely

5 different attachment. And you can also see that this document was not

6 authenticated by Mr. Sadinlija or any person that Mr. Sadinlija

7 designates as his predecessor, in paragraph 10, Exhibit 924.

8 Although, Witness Jusic, said that this chart contains a lot of

9 mistakes, and that this is not part of this document. That is on the

10 17th of September, 1995, transcript page 2481.

11 Your Honours, perhaps this will be a convenient time to make a

12 break, and then I will continue.

13 JUDGE MOLOTO: Thank you so much, Madam Vidovic.

14 We will take a break and come back at quarter to 11.00.

15 Court adjourned.

16 --- Recess taken at 10.15 a.m.

17 --- On resuming at 10.46 a.m.

18 JUDGE MOLOTO: Yes, Madam Vidovic.

19 MS. VIDOVIC: [Interpretation] Thank you.

20 Your Honours, I was talking about some documents. Of course, it

21 is very important to know what the documents really said about the

22 documents [sic], because you, Your Honours, don't know anything about

23 those documents. You don't know what the actual background was for the

24 creation of those documents, whether the contents are accurate fully or

25 partially or whether they're completely inaccurate. That is why we have

1 witnesses. If it weren't like that, all the parties would have to do

2 would be to just mail the document, write down their theories of the

3 case, and mail those theories and then await the judgement. That is why

4 what the Prosecutor is asking you to do is not serious at all.

5 They quote the Stakic judgement, claiming that it is based almost

6 entirely on documents, and Prosecution also invokes some other cases,

7 such as for instance, the Brdjanin case. But in doing so, the

8 Prosecution paints a completely wrong picture. The approach the OTP took

9 in those cases was completely different, as was in all the other cases

10 before this Tribunal.

11 The Prosecution called the investigators and the archive

12 personnel to testify about the origin of the document, the chain of

13 custody, the production of documents, authenticity, and all the other

14 issues that are related to authenticity; and this was subject to the

15 cross-examination by the Defence.

16 Exhibit 924, Mr. Sadinlija's statement, was of no assistance in

17 this respect. The Prosecution expects you to be believe, to take its

18 word, that their documents are accurate, reliable, and authentic;

19 although, as regards the facts contained in the documents, the witnesses

20 provided a completely different interpretation or, in some cases, those

21 very documents were challenged by other documents.

22 In paragraph 19 of its final brief, the OTP explains that its

23 case is based on circumstantial evidence. The metaphor that was used is

24 that the Prosecution case is not just an ordinary chain where the whole

25 chain breaks. If one link breaks, it is actually chain-mail. So, even

1 if one link breaks, the strength of the chain-mail remains the same.

2 And I will use another metaphor. I will say that their case is

3 just a huge patch work made of pieces of cloth from various pieces of

4 clothing. You take one patch from here, another patch from there, using

5 different fabrics.

6 Imagine that those fabrics are different documents from which the

7 Prosecutor selected parts that were in his favour. What they did is a

8 jigsaw puzzle that makes no sense. You would have to set aside this huge

9 pile of fabric that they discarded to conclude that this patchwork paints

10 a full picture. You would have to set aside this pile of fabrics to

11 conclude that they have managed to prove any of the counts in the

12 indictment beyond reasonable doubt.

13 In its final brief, the Prosecution did not say anything about

14 the background of this case. What the Prosecution has presented you with

15 is a narrow frame, and it is asking you to ignore everything that

16 happened outside of this frame.

17 If you were to adopt this approach, the Prosecution approach, you

18 would not have enough information necessary for you to assess the facts

19 appropriately, to apply law to the situation that the accused found

20 himself in. Law related to command responsibility and the jurisprudence

21 of this Tribunal has recognised the vital importance of what was

22 happening in the theatre of war in the relevant time. And, here, I refer

23 to a decision of the Appeals Chamber on the interlocutory appeal of the

24 Defence against the length of the trial, the date is the 20th of July,

25 2005, Oric case.

1 In this case, the Delic case, this is of particular importance

2 because this is a case involving a high-ranking commander. Before you,

3 Your Honours, you have the commander of the General Staff whose basic

4 duty was to implement the mission of the General Staff. This was the

5 strategic level of command, not dealing with individual units and

6 problems. For General Delic, what was at stake was the survival of the

7 people and the Bosnia and Herzegovina.

8 The Prosecution never went into the background of this case; and

9 what we see in background is tens of thousands of people killed,

10 thousands of women raped, children evens, hundreds of thousands of

11 Muslims expelled from their homes, and not only Muslims but other people

12 who were loyal to the BiH government. That's the story that remained

13 untold. Had you heard this story, Your Honours, after the end of the

14 Prosecution case, and during our opening statement held on the 4th of

15 March, 2008, page 6914 of the transcript, you would not have asked this

16 question.

17 If I can ask you, if we don't have an army that is under control,

18 why go into the war at all? You will find an answer to that question

19 when you look at this exhibit, Exhibit 80.

20 [Videotape played]

21 "Zvornik. We cam upon the human calamity, which is the practical

22 result of this. Two thousand Muslim are stranded and struggling to get

23 out. They spoke of the fighting they'd left behind them, the murder and

24 hostage taking which went with it.

25 "Everythings are happening now. They have been happening since

1 two, three days. It is a terrible, terrible terror which has been made

2 and which being made right now. You can hear even now some shells.

3 "We could, and so could the refugees waiting for rescue. The

4 artillery barrage was creeping towards us in the villages on the Muslim

5 side of Zvornik.

6 "What is happening, she says, is that we are unarmed and they are

7 firing at us.

8 "He begs the world to help them against the aggression of the

9 Serbs and the federal army.

10 "The [indiscernible] again for help as quickly as possible, and

11 the applause is only because we are the first ..."

12 MS. VIDOVIC: [Interpretation] You will get another part of the

13 answer to the question you asked if you look at video Exhibit 1232.

14 [Videotape played]

15 "Bosnian soldiers never attacked civilians, but he was motivated

16 by freedom, not by revenge. The aggressor attacked mostly civilian areas

17 from far away out of reach of our weapons. Until the aggression Bosnia

18 and Herzegovina, the history records had never remembered that an army

19 had included within its target maternity hospitals, hospitals, schools,

20 orphanages, mosques, churches, even cemeteries. No where no army had

21 attacked men, women, and children standing in queues for bread, water,

22 and medicine. No where no one had ever before hired professional killers

23 to kill all that moves within cities under siege. At the front line of

24 resistance ..."

25 MS. VIDOVIC: [Interpretation] Your Honours, please remember the

1 shell fired from the Mount Ozren that killed 71 persons in Tuzla; Exhibit

2 471 and Exhibit 625. Organised or unorganised, the army had to accept

3 battle, and what a battle it was, the one between David and Goliath. You

4 will have it bear those facts in mind when you deliberate, not only

5 because of the significant of the background of this case, and not only

6 because General Delic had to have dealt with those problems, because he

7 did. You will have to bear this fact in mind because the problems and

8 internal conflict that General Delic faced had a major impact, a direct

9 impact on the effectiveness of the chain of command and the possibility

10 to establish a normal flow of information through the chain of command,

11 and the possibility of establishing effective control.

12 This is what you heard from various witnesses, Karavelic,

13 Loncaric, Dedovic, Jusic, Softic, Buljabasic, Alihodzic, and others.

14 What the Prosecution termed the core of its case. It told you a simple

15 story about Muslim extremists who came to Central Bosnia, then to murder.

16 They killed people. That's what they said. They killed people, and

17 Rasim Delic flew about that. He knew about the crimes, yet they rewarded

18 them and he praised them in the media. This, despite the fact that we

19 did not see any of this in the evidence, Your Honours.

20 The Prosecutor played the card that any reasonable person must

21 find alien: Muslim extremists bent on killing civilians came to

22 Central Bosnia.

23 The people who did come to Central Bosnia were not all the same.

24 They were not all bent on killing non-Bosniak civilians or prisoners of

25 war. This is a figment of the Prosecution's fantasy.

1 Your Honours, I invite to you look at testimony of Witness DW-4,

2 at pages 4471 to 4427. He described a group of Arabs who were under his

3 command and who were normal and disciplined people. Awad, their witness,

4 the witness that they referred to in their final brief so often, told the

5 Trial Chamber that the El Mujahedin Detachment had been set up

6 specifically so that they could distance themselves from other groups

7 that did not comply with discipline. And this is from Awad's testimony

8 on the 9th of February, 2008, transcript at pages 154, 155.

9 If what Awad said were -- or, rather, Exhibit 1200 clearly shows

10 that Awad was right. It was a bulletin of the El Mujahedin Detachment

11 sent abroad on the 6th of March, 1995, which reads as follows:

12 "Likewise, the Mujahedin relations and their movements are a function of

13 what may safeguard the legitimacy of the Jihad and its special nature,

14 and the detachment has made it clear several times that they refused to

15 take responsibility for acts and infractions by individuals or groups

16 that do not belong to it."

17 We expect you not to take into account this fashionable story of

18 Muslim extremists, killings, this indefinite and unclear danger looming

19 over every prisoner of war in Central Bosnia that falls into their hands.

20 I will go back to the beginning of the story the Prosecution told

21 about the Muslim extremists who came to Central Bosnia. Their arrival in

22 Central Bosnia, their joining to the Muslim Forces in Travnik, and their

23 control over them were described in their final brief with few words and

24 many photographs depicting bearded men, as if we hadn't seen each and

25 every one of them at least ten times during the trial.

1 All these people of Arab origin were bundled together into the

2 Poljanice group. According to the OTP, all of them automatically became

3 members of the El Mujahid Detachment; and all of them, no more and no

4 less, even prior to the establishment of the El Mujahedin Detachment,

5 were under the de facto control of Rasim Delic. This is a far cry from

6 what was actually the case. It is also a far cry from the evidence in

7 this trial.

8 There were numerous and very diverse groups of Mujahedin fighting

9 and throughout the area. They were many humanitarian workers of

10 Afro-Asian origins, as well. We have provided detailed description of

11 evidence about the Prosecutor's confused pleading in relation to

12 effective control over the Mujahedin prior to these establishment of the

13 detachment, and the detachment itself, in paragraphs 99 through 180 of

14 our final brief, and I'm not going back to that now.

15 One thing I will tell you, though, is as far as this issue is

16 concerned, the Prosecution invokes witness Hamad. The OTP rely, to a

17 very large extent, on his evidence. We realised that yesterday. This,

18 Your Honours, is a witness who actually said that the military commanders

19 of the Mujahedin, Vahidin and Muatez, were members of al-Qaeda, and that

20 was the organisation that they reported to. That is what their star

21 witness said, Ali Ahmad Ali Hamad, on the 8th of September. The

22 transcript reference is pages 101 and 102.

23 He says:

24 "Question: In relation to that, Witness, I want to ask you this.

25 It is true, isn't it, that you, the Mujahedin who were members of

1 al-Qaeda, and you have accepted that as a fact, haven't you, were under

2 the control of Wahiuddin, were monitored by Wahiuddin, and that he wrote

3 reports about you to his bosses? Am I right?

4 "Answer: Yes.

5 "Question: These are the al-Qaeda bosses, right.

6 "Answer: Yes.

7 "Question: Therefore, it would be fair to say that the Mujahedin

8 administration submitted reports on activities of the Mujahedin in Bosnia

9 and their members to leaders or bosses outside of Bosnian.

10 "Answer: Correct."

11 That's what Ali Ahmad Ali Hamad said.

12 In our brief, we listed specifically a lot of evidence that

13 testifies to this, and I'm not going back to that now. What I am going

14 to deal with now is how the Prosecutor in this case pleaded the criminal

15 responsibility of the accused and what they have actually proven.

16 In paragraph 15 of the indictment, they plead that General Rasim

17 Delic, as the commander of the Main Staff, had supreme authority and

18 supreme responsibility for the functioning of the BH army.

19 In paragraph 17, they list the units under his effective control,

20 including the El Mujahedin Detachment. In paragraph 761 through 834 of

21 our final brief, we provide a detailed explanation to the effect that the

22 Prosecutor is relying on regulations that did not apply at all at the

23 time these events occurred. We also provided a detailed explanation of

24 the accused's actual position. Again, I'm not going back to that.

25 There is, however, a material fact that shows a relationship of

1 subordination between the perpetrators in question and the accused. The

2 Prosecutor pleads that Rasim Delic on the 16th and 17th of July 1995,

3 paragraph 30 of the indictment, and on the 26th of August, 1995,

4 paragraph 31 of the indictment, ordered to the 2nd and 3rd Corps to carry

5 out combat operations in the Vozuca pocket.

6 In paragraph 19.3 of their pre-trial brief, they explain that

7 Delic was there command of these operations by using the El Mujahedin

8 Detachment. Finally, they plead that he ordered a cessation of those

9 combat operations; paragraph 32 of the indictment.

10 Your Honours, these facts were the foundation of the indictment

11 against Rasim Delic. That was the foundation, and the OTP failed to

12 prove that. We go on to explain that in section 6 and 7 of our final

13 brief.

14 Why am I saying this today? The OTP are perfectly aware of the

15 fact that they have failed to prove the material facts that they pleaded.

16 Now, in their final brief, they place before you a new set of facts.

17 Now, the nexus between the accused and the developments in the July 1995,

18 as well as the perpetrators of those crimes, is described in paragraph 63

19 of their final brief. They submit that Rasim Delic ordered to the BH

20 army corps to activate the entire front line of the BH army. The link

21 between the accused and what happened during Operation Farz is now

22 described in the following way. They now claim that the General Staff

23 secured instructions at a strategic level; and that Rasim Delic, in a

24 directive for 1995 as one of the tasks for the 2nd and 3rd Corps,

25 assigned coordination of efforts to liberate Vozuca. This is

1 paragraph 86 of the OTP's final brief.

2 Your Honours, that is not what they initially pleaded.

3 Nevertheless, you have the indictment in front of you, and you will have

4 to provide your own findings in relation to the allegations contained in

5 that indictment, as opposed to what they're telling us now.

6 Your Honours, I am moving closer to my answer to your question

7 number 5. As far as the relationship of subordination is concerned, in

8 paragraphs 41, 42, and 49 of their final brief, the OTP tell us that the

9 Mujahedin from Poljanice, prior to the establishment of the detachment,

10 were de facto subordinated to General Delic; whereas, after the

11 establishment of the detachment, they were de jure subordinated to the

12 3rd Corps and thereby to Rasim Delic as the BH army commander.

13 They claim that it is of no consequence whether this relationship

14 of subordination was direct or indirect. I do agree, but under the

15 condition that they cite the following as well: Only for as long as the

16 accused remains in effective control of the perpetrators.

17 Finally, I'm getting to question number 5. Your Honours wanted

18 to know whether it was the position of the Defence that Rasim Delic could

19 be made to answer under Article 7(3) of the Statute, only for as long as

20 he, as you said, directly and with no intercession by any of the units or

21 formations exercised command over the unit that committed the crimes that

22 we are talking about.

23 Of course not, Your Honours. Of course, that is not the position

24 of the Defence, as we clearly explain in paragraph 792, where we

25 elaborate on the importance of the principle of singleness of command in

1 the BH army; in paragraph 793, where we elaborate on the various levels

2 of command in the BH army, including the strategic level, as well as the

3 responsibility of commanders at all levels of command, as well as their

4 mutual relationships.

5 We would like you to look at paragraph 921 of the Defence's final

6 brief, in which we clearly state our position in relation to the issue

7 that you raised. The OTP had to prove that the chain of command was

8 functioning, starting from the accused and then all the way down the

9 chain to the alleged perpetrators of these crimes. The Trial Chamber

10 must establish, beyond reasonable doubt, that any action taken by the

11 accused, portrayed by the OTP as establishing effective control,

12 qualifies as unequivocal exercise of power by the accused. This is in

13 the jurisprudence of the Tribunal. This is Celebici, paragraph 669.

14 In paragraph 852 of our final brief, we state that the authority

15 of a superior officer requires for a de facto chain of command to exist,

16 functioning from the top down and vis-a-versa, between the accused and

17 the alleged perpetrators at the time the crime cured. And this is also

18 in the jurisprudence of the Tribunal; Celebici paragraph 674.

19 The threshold of effective control is a factual situation

20 reflected in the ability of the accused to enforce compliance with the

21 rules and with his own orders by his subordinate officers.

22 And let me try to be very specific about your question number 5.

23 His control exercised directly over the perpetrators or through other

24 subordinate officers down the chain of command from him, but up the chain

25 of command from them. This is entirely insignificant, as long as the

1 responsible superior officer has the means to prevent any crimes from

2 occurring, or, indeed, has the means to take appropriate measures to

3 punish the perpetrators. This is also reflected in the jurisprudence of

4 the Tribunal; Oric case, paragraph 311.

5 That is our position. That is why we used paragraph 891 of our

6 brief, and we took it from there trying to decipher that the subordinate

7 officers of General Delic and the commander of certain commands,

8 including the command of the 3rd Corps and the 35th Division, had no

9 de facto power over the El Mujahedin Detachment. That is why we devoted

10 an entire chapter to factors that undermined the chain of command in the

11 area covered by the 35th Division. This is something that we described

12 in your final brief.

13 In relation to this, Your Honours, I also wish to draw your

14 attention to paragraph 197 of the Appeals Chamber judgement in the

15 Celebici trial, stating: "The doctrine of command responsibility is

16 finally established based on the power of a superior officer to control,

17 the actions of his subordinates.

18 According to this judgement, there is a certain threshold after

19 which persons no longer have the necessary control over those who

20 committed crimes, and may therefore not be considered in any true sense

21 of the word "their superior officers" under Article 7(3) of the Statute.

22 While any Trial Chamber must always take into account specific facts of

23 any situation, while any Trial Chamber must be prepared to penetrate

24 through countless veils of formalities behind which individuals perhaps

25 are hiding who bear the greatest possibly responsibility for a number of

1 atrocities, one must be cautious not to be unjust or inequitable towards

2 people who are declared responsible for actions that were maybe committed

3 by others in situations where this control length was simple non-exist or

4 was simply far to remote.

5 The OTP claim that judging the fact whether Rasim Delic was, in

6 fact, part of a subordination relationship would depend on indicators and

7 factors that they state in paragraph 46 of their final brief. If you

8 look at these factors, Your Honours, you will reach the conclusion that

9 the OTP are trying to prove that the BH army, in fact, had effective

10 control over the El Mujahedin Detachment, not General Delic.

11 This is what we're talking about. It is effective control that's

12 at stake, the effective control of General Delic over the perpetrators of

13 crimes. They claim that he had effective control over the detachment,

14 and they base there claim on the fact that he issued orders on the

15 establishment and disbanding of the detachment.

16 Your Honours, we studied this issue in quite some detail in

17 paragraph 835 through 968 of our final brief. In the briefest possible

18 terms, I will say that none of those orders, in fact, stems from his

19 position of authority. Quite the contrary, it stems from the authority

20 of his superior officer. Those orders were merely handed down the chain

21 of command. That is one aspect of the establishment of the El Mujahedin

22 Detachment. There are others, too, Your Honours, and you have seen the

23 evidence.

24 In paragraphs 972 through 1016, we tell you who the real founders

25 of the detachment are, and describe the existence of other authorities

1 who had power over the detachment, including the Islamic Cultural Centre

2 in Milan and Sheikh Anwar Saban.

3 We describe an entirely independent and military system that

4 backed the unit and that the unit was part of. In our brief,

5 paragraphs 937 through 967, we talk about evidence that has to do with

6 incentives. This is about General Delic, and the OTP deal with this a

7 lot in their own brief. You will remember, Your Honours, the evidence

8 given by Mr. Loncaric, as well as that given by Mr. Husic. They both

9 said that the awarding of those incentives was a result of the political

10 decision that lay beyond the bounds of Rasim Delic's authority.

11 Rasim Delic never proposed any ranks for members of the

12 El Mujahedin Detachment. You will remember PW-9's testimony, as well as

13 the fact that not even any decisions of the presidency of the Republic of

14 Bosnia and Herzegovina on ranks were respected by members of the

15 El Mujahedin Detachment or, indeed, recognised by them. This was on the

16 5th of November 2007; 5644.

17 Your Honours, may I remind you of a widely recognised position,

18 in the jurisprudence, regarding the requirements that must be met by an

19 order, in order to be taken into account when establishing effective

20 control. What must be proven is that an accused was not just simply in a

21 position to issue orders; rather, what must be proven is that those

22 orders are recognised and complied with by the subordinates, or the

23 perpetrators of crimes. This piece of jurisprudence was reflected in the

24 Blaskic Appeals judgement, paragraph 69.

25 So what we're looking for is evidence that the orders of the

1 accused are being obeyed, not only by just anyone, but by the

2 perpetrators of the crimes. The Prosecution must prove that the

3 perpetrator acted because of those orders and in compliance with the

4 orders issued by the accused, not orders of -- by just anyone. This,

5 again, is jurisprudence. This is Nikolic case, a decision on the review

6 of the indictment in relation to Rule 61. The date is the 20th of

7 October, 1995, paragraph 24.

8 Your Honours, this is not the reality in the case of the

9 El Mujahedin Detachment. The Prosecution invoked Witness Awad somewhere

10 in the middle of its final brief and the closing argument. This is what

11 the witness said: "By Allah, had the Shura decide at that time that the

12 detachment would not be disbanded and that it would continue to fight,

13 nobody would have forced us to disband the detachment."

14 As I have already said, Your Honours, the Prosecution listed a

15 number of factors for your consideration in the evaluation of effective

16 control as being indicative of it. You will find very few of those that

17 are actually recognised by the international and humanitarian law and the

18 jurisprudence before this Tribunal that might lead to you conclude that

19 General Delic did have effective control over the El Mujahedin

20 Detachment. Even if the El Mujahedin Detachment had been under the BH

21 army control, as the Prosecution alleges - but that was not the case,

22 that's our case - so even if this detachment had been under BH army

23 control at the time relevant for the indictment, the position of this

24 detachment, which was allegedly resubordinated to the 35th Division,

25 would be too far removed from the commander of the General Staff for him

1 to actually receive reports from the 35th Division.

2 As you were able to see, the reports from the 35th Division

3 regarding this unit never reached General Delic. You saw from voluminous

4 evidence called at this trial that the reports were abridged through

5 different levels of command from the bottom to the top; and that, in the

6 end, General Delic would receive nothing about a brief report, quite

7 general in nature, about certain combat actions. BH army did have its

8 levels of command; and, as we explained, each of the commanders had their

9 subordinates and their responsibilities.

10 Let us now look at the substance of what they're alleging

11 regarding the indicators of effective control.

12 The Prosecution is trying to prove that Rasim Delic did have

13 effective control over the El Mujahedin Detachment by saying that the

14 Mujahedin, the El Mujahedin Detachment, upon its establishment, was

15 involved in the fighting with the BH army in Central Bosnia. And they go

16 on to list various locations, Karaula, Bijelo Bucje, Maline, Hrasce,

17 Djotline Kuce, Vitez, Pisana Jelika, Visoka Glava, Kajin Sopot, and

18 Operations Proljece and Farz.

19 Witnesses, who were members of the detachment, Awad and PW-9,

20 explained in quite some detail that the fighting for Pisana Jelika,

21 Visoka Glava, Kajin Sopot and Proljece was carried out independently.

22 They did not have anything to do with -- the fighting did not have

23 anything to do with the orders of the BH army commands. You will recall,

24 Your Honours, that the reports on those battles were actually sent to the

25 Islamic Cultural Centre in Milan. Let me refer here to E-1201 and

1 E-1387. These are not bulletins. These are combat reports, pure and

2 simple, that describe in great detail this fighting. Those reports were

3 sent to the Islamic Cultural Centre in Milan, not to the BH army

4 commands.

5 Your Honours, whom do you send your reports, anywhere in the

6 world, to your bosses, to your superiors? You don't talk to your

7 superiors. You present your accounts to them, you file written reports.

8 In paragraphs 360 through 385 of our final brief, we provided

9 some arguments related to this fighting, and I had not now go through

10 them again.

11 Let me just show what you the witnesses say about the battles

12 that we did not mention in our brief, and the Prosecution discusses them.

13 Witness Delalic describes the relationship between the BH army and the

14 detachment as one of cooperation. That's the 27th of August, 2007,

15 regarding the battle of Djotline Kuce.

16 I would like to draw your attention the last part of the question

17 asked by His Honour Judge Moloto: "They were in cooperation with you?"

18 And the witness replies: "Probably, probably, at the Djotline Kuce, but

19 I don't know that they actually cooperated with us in such a way that we

20 fought together anywhere."

21 Witness Hamad, regarding Bijelo Bucje says the following.

22 The question is: "In actual fact, during all the time that you

23 spent as the commander of the unit in Bijelo Bucje, you never received a

24 single order from the army of Bosnia and Herzegovina; is that correct?

25 Now I'm talking about orders, you personally never received an order from

1 the BH army?"

2 "Not from them. There was only cooperation. There were no

3 orders."

4 PW-2, talking about the battle of Zabige and Kruscica, near

5 Vitez, says that only the detachment took part, nobody else. He says:

6 "I arrived in Zabige as part of another group that was sent in to assist

7 in a way. I saw only members of the El Mujahedin group there, nobody

8 else."

9 PW-2, when he talks about Kruscica, describes an incident in

10 which the detachment arrested a member of the BH army who was not

11 released when the relevant superior command of the army asked that; he

12 was released only when the Travnik mufti, Avdibegovic, intervened:

13 "It is true, is it not, that the soldier was not released when

14 the BH army intervened, but only after Mufti Avdibegovic intervened and

15 that the incident died down after that."

16 "Yes."

17 Your Honours, please bear this fact in find. Mufti Avdibegovic,

18 he is a religious leader and he exerts influence over the Mujahedin, and

19 this is when the situation calms down. The BH army was unable to obtain

20 the release of its own soldier, the soldier that had been arrested.

21 Your Honours, could we please move into private session for just

22 a moment.

23 JUDGE MOLOTO: May the Chamber please move into private session.

24 [Private session]

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 [Open session]

15 THE REGISTRAR: Your Honours, we're back in open session.

16 JUDGE MOLOTO: Thank you very much.

17 MS. VIDOVIC: [Interpretation] This is what the witnesses had to

18 say about defining the objectives by the superiors from the BH army and

19 the approving of the plans on their part.

20 Awad, the witness that the Prosecution keeps invoking, explained

21 that: "Shura discussed the plan and then decided whether to launch an

22 attack or not. In other words, the Shura considered and discussed the

23 attack plan, in other words whether a back would be launched or not, am I

24 right?

25 "Answer: Yes.

1 "Question: Likewise, Shura decided about any major issues that

2 touched upon the life and work of the detachment. Is that correct?

3 "Answer: That's correct."

4 PW-9 explained that the detachment was not interested in the

5 plans of the 35th Division. That was on the 16th of November 2007. The

6 transcript page is 56 -- 5706.

7 As regards the indicators the Prosecution talks about in its

8 final brief, resubordination, combat reconnaissance, joint training, the

9 logistics for the detachment, temporary staffing by personnel from the BH

10 army in the detachment, artillery support, conduct in battle and after

11 battle, including holding the lines, the assignment of areas or sectors

12 to EMD, alleged payments effected by the BH army, including certificates

13 and citizenship, we went through all this in detail in sections 5,6,7,

14 and 8-B of our brief, and I will not go through it again.

15 Let us look at what the Prosecution insider witnesses had to say

16 about how this functioned de facto.

17 This is what Awad had to say about setting some conditions. He

18 said: "We would never have launched any attack if conditions had not

19 been met."

20 He explained that the 35th Division or the 3rd Corps could not

21 count on the detachment when they considered that the detachment's

22 engagement would be necessary or when the detachment was actually ordered

23 to do something.

24 This is what Witness PW-9 has to say about the resubordination

25 orders.

1 "You have seen those three documents and a number of other

2 documents and I would like to put my case to you now. Documents that

3 came from the 3rd Corps and the orders that the 3rd Corps used to try to

4 incorporate the El Mujahedin Detachment into the corps structure were

5 just there on paper. The detachment never recognised those orders or any

6 kind of resubordination."

7 "Answer: That's correct."

8 PW-9 says that's correct. Now this is what witness Awad has to

9 say about resubordination. He said: "We would be resubordinated to them

10 in formal terms but none of those commanders could issue any direct

11 orders to us. This just never happened."

12 "Let us clear this up. When you say, 'We would be

13 resubordinated to them in formal terms but none of them could issue any

14 orders to us,' that means that there were orders. There would be a

15 paper, a piece of paper, yet the detachment did not recognise their

16 orders. Is that correct?"

17 "Answer: Yes."

18 Your Honours, at this point I would like to touch upon some

19 inaccuracies that were presented by the Prosecution in its brief.

20 In paragraph 137, the Prosecution notes that the El Mujahedin was

21 used as an intervention rapid reaction unit and that it was used to

22 arrest people, among other things. They referred to a number of exhibits

23 in this paragraph, and I invite to you look at those exhibits, because

24 none of those documents actually show that what the Prosecution is

25 claiming is correct.

1 The Prosecution is incorrect when it claims that the BH army and

2 the El Mujahedin Detachment used the same joint forward command post.

3 This is what their witness Hasanagic said on the 27th of September, 2007.

4 "Here it is stated that you designated a team of your officers,

5 including Nesad Sabic, the Chief of Staff, to provide assistance to the

6 detachment. It says here that you ordered for some assistance to be

7 provided."

8 JUDGE MOLOTO: Slow down.

9 MS. VIDOVIC: [Interpretation] "But it is true, Mr. Hasanagic, is

10 it not, Mr. Hasanagic, that the El Mujahedin Detachment never allowed

11 Mr. Sabic to enter their camp. Is that true?"

12 "Answer: This is what my Chief of Staff told me."

13 They simply did not accept your assistance or the assistance of

14 your officers. Am I right?"

15 "Answer: Yes.

16 I would like to say something about the level of professionalism

17 in the OTP. The Prosecution tendered documents E-1146, E-1148, E-1165,

18 E-1167, E-1169, through the bar table, and used those documents,

19 allegedly on the basis of those documents, the Prosecution put together

20 table number 4 attached to its final brief. In paragraphs 161 and 162,

21 the Prosecution claims that the 3rd Corps commander personally approved

22 the transfers of soldiers whose names are listed in those documents,

23 claiming that you can actually find them in Exhibit 65. Of course, you

24 can't find them there, and you can't find them on the -- all of them on

25 the February 1996 list either. What the Prosecution did was to extract

1 the names that are on the February 1996 list and put them into the table,

2 although most of the people listed in those exhibits are not on this list

3 at all.

4 You will remember many witnesses --

5 JUDGE MOLOTO: May I just interrupt.

6 You're saying what the Prosecution did was to extract the names

7 that are on the February 1996 list and put them. Do we have any evidence

8 to this effect from the trial?

9 MS. VIDOVIC: [Interpretation] Your Honours, what I said is this.

10 Not during the trial. The OTP tendered E-1146, E-1148, E-1165, and other

11 documents as bar table exhibits. And then there was a list dated

12 February from which they -- if you go back to the documents that they

13 invoke, you will realise that only the occasional person from that list

14 is mentioned in these exhibits, but certainly not in Exhibit 65, which is

15 the exhibit that they invoke.

16 Your Honours, you will remember many witnesses talking about

17 E-591, where General Mahmuljin bans any further reinforcement to the

18 El Mujahedin Detachment. Be that as it may, Your Honours, but it is

19 precisely the theory of the OTP from paragraph 161 to the effect that the

20 El Mujahid Detachment negotiated with President Izetbegovic about

21 transfers and that General Mahmuljin then personally took the decision on

22 that, tells us better than anything else that Rasim Delic, even according

23 to the OTP, had no effective control over the El Mujahedin Detachment.

24 What is this supposed to mean? The presidency talks directly to

25 the El Mujahedin Detachment and then the commander of the 3rd Corps

1 carries this out. Where is Rasim Delic's place in all of this? Where is

2 it, even according to the OTP? The OTP use up an entire chapter, their

3 chapter on effective control, paragraphs 146 to 150, to convince you that

4 the detachment followed orders of the commands of the BH army. What they

5 had to prove was that the detachment followed the orders of the accused

6 which trickle down from him to the perpetrators. Be that as it may,

7 their theory that the orders of the commands of the BH army were followed

8 at all is simply untrue because all of the evidence suggests otherwise.

9 Awad, in his evidence on compliance with orders:

10 "Question: The command was issuing orders but unlike other units

11 of you failed to comply with these orders. You simple made your own

12 calls as to whether you would accept an order or not. Would this be a

13 fair summary of what you said?

14 Awad's answer was: "Yes."

15 Hasanagic, the commander of the 35th Division, talked about

16 compliance with the tasks assigned to the detachment. He said: "They

17 were given assignments just as other units were. They, however, failed

18 to perform those assignments as required. They preferred to carry out

19 assignments as they saw fit."

20 "Question: So whenever they decided not to be involved in an

21 action that was their own call and no one had the power to issue any

22 further orders to them about that. Am I right?"

23 "Answer: Yes."

24 Now, Your Honours, I wish to address the OTP's interpretation of

25 the Hadzihasanovic appeals judgement and I will come to my next answer to

1 your question.

2 Talking about the OTP's interpretation or understanding of the

3 appeals judgement, what they're trying to put to you is this: If at all

4 possible, disregard it. Nevertheless, Your Honours, that is simply

5 impossible. They are trying to tell that you the evidence in the

6 Hadzihasanovic case is different from the evidence in this case, which is

7 true. And how true, Your Honours, and how different. It is precisely

8 the witnesses invoked by the OTP in order to prove the difference between

9 this case and the Hadzihasanovic case. These are members of the

10 detachment. These are insiders. These are members of the BH army,

11 low-ranking one, foreign Mujahedin. That is what you are hearing from

12 the OTP. But it is these witnesses that shed the most light on the issue

13 of effective control over the Mujahedin in general and the El Mujahedin

14 Detachment.

15 As you have surely realised, Your Honours, I am not frequently

16 invoking these members of the BH army where suggestions have been made

17 that they should not be lent any credence. Precisely because of that, I

18 think particularly illustrative were their star witnesses, insiders. We

19 had to travel to Sarajevo twice because of them which is unprecedented in

20 the history of this Tribunal.

21 E-326, an interview by witness Hamad to the German magazine

22 Der Spiegel. Hamad confirmed the authenticity of this interview. He

23 stated: "There wasn't a single Bosnian general that had the power to

24 order us anything." And this is the story of the meetings with

25 General Alagic that you heard today, that was described for your benefit

1 today and that Hamad talked about. That's all fine, meetings, talks,

2 conversations, however, this is not about meetings, encounters and

3 decisions that were taken; this is about proofing effective control. Do

4 I have the power to order something to one of my subordinates and will my

5 subordinates then comply with the order or not? That is what is at stake

6 in this trial.

7 Let's look at what Awad has to say: "Whenever we agreed to do

8 something, an order like that would be formally issued to us. However,

9 whenever there was no agreement, then no combat action or attack would be

10 executed."

11 This is from is from PW-9 on the 16th of November, 2007:

12 "Therefore, would it be a fair conclusion that between the El Mujahedin

13 Detachment and the commands of the army, the 35th Division OG North or

14 indeed the 3rd Corps, there was rather cooperation, then subordination?"

15 He answered: "That is correct. And I think I have already

16 pointed this out a number of times."

17 That is what PW-9 has to tell us.

18 One thing that didn't happen in the Hadzihasanovic case happened

19 here before this Trial Chamber. Even without such statements and such

20 evidence, the Appeals Chamber found that the 3rd Corps commander had no

21 effective control as regarded the counts of the indictment. You,

22 Your Honours, are facing a situation where there is even far less

23 evidence than in that case about the existence of effective control. You

24 have seen evidence coming from a number of sources talking about control

25 over the El Mujahedin Detachment. You saw textbook combat reports. PW-9

1 claims that these were being sent on a daily basis to the Islamic

2 Cultural Centre in Milan throughout combat operations. These are E-1389

3 and E-1201.

4 You, Your Honours, also had a chance to look at intercepted fax

5 messages, including the one dated the 28th of November, 1993,

6 Exhibit 127, addressed to the superiors of the El Mujahedin Detachment

7 with addresses abroad. You have evidence before you that simply wasn't

8 there in the Hadzihasanovic case, but it's here now and you have it in

9 front of you. This evidence talks about the setting up of Mujahedin

10 camps across Bosnia and Herzegovina, the Dzemat, the Shura, the sheikh

11 Saban who was the one true authority for the detachment and his links

12 with the Al Jama Al-Islamiyah. You have evidence on the independent

13 financing of the detachment we explained all of this in our brief in

14 paragraphs 972 through 1016 and that's why I'm not going back to that

15 now.

16 In paragraph 44 of the OTP's final brief, the OTP state that the

17 indicators of effective control applied by the Trial Chamber in the

18 Hadzihasanovic case showing effective control were recognised and

19 accepted by the Appeals Chamber. However, Your Honours, that is only

20 true to a very small extent. Much rather, it is hardly true at all.

21 Quite the contrary, in fact. The Appeals Chamber found that the

22 Trial Chamber had erred in assessing evidence in relation to indicators

23 of effective control. Throughout much of this particular chapter of the

24 appeals judgement some evidence was misjudged; other evidence was not

25 taken into account at all.

1 Be that as it may, we reply to your question number 8 on

2 additional indicators taken into account by the Hadzihasanovic appeals

3 judgement. This is also in evidence in this case. In keeping with your

4 requirements, we drew up a table for ease of handling and so that you

5 could better follow our reply to your question number 8. You should have

6 it on the monitors in front of you, Your Honours, or at least I hope so.

7 JUDGE MOLOTO: There is a table on my monitor. Thank you very

8 much, Madam Vidovic.

9 MS. VIDOVIC: [Interpretation] As you can see, Your Honours, the

10 table contains four columns. The first column shows the indicator from

11 the appeals judgement. The second column shows the comment of the

12 Appeals Chamber in the Hadzihasanovic trial. The third column shows

13 additional criteria showing that there was no effective control over the

14 Mujahedin. We marked that as pre-EMD or indeed the El Mujahedin

15 Detachment. The fourth column shows the appropriate paragraphs of the

16 Defence final brief or the appropriate exhibits, unless specified in our

17 brief.

18 Your Honours, my learned friend has just indicated to me that it

19 might be a good idea to deal with the table after the break.

20 JUDGE MOLOTO: Are you going to be long? You still have a minute

21 to go? Would you rather take the break now?

22 MS. VIDOVIC: [Interpretation] Your Honours, this is a table that

23 runs into a total of nine pages. We might as well start now, but we

24 wouldn't be gaining any ground.

25 [Trial Chamber confers]

1 MS. VIDOVIC: [Interpretation] Your Honours, there is one thing

2 that perhaps we can do. We could perhaps distribute copies of this

3 table, if the Chamber finds that helpful.

4 JUDGE MOLOTO: Has it not been uploaded? We'd like it

5 distributed. Thank you very much. Please do that.

6 MS. VIDOVIC: [Interpretation] Yes, yes, indeed. Indeed, Your

7 Honour.

8 JUDGE MOLOTO: We'll take a break and come back at half past

9 12.00.

10 Court adjourned.

11 --- Recess taken at 12.00 p.m.

12 --- On resuming at 12.29 p.m.

13 JUDGE MOLOTO: Thank you for the hard copies, Madam Vidovic.

14 You may proceed.

15 MS. VIDOVIC: [Interpretation] Thank you, Your Honours.

16 I will now be dealing with the table, specifically the first

17 indicator reviewed by the Appeals Chamber in the Hadzihasanovic trial.

18 In the middle column, we talk about additional criteria showing

19 that there was no effective control over the El Mujahedin and the

20 El Mujahedin Detachment. Evidence on that can be found in the

21 paragraphs stated in column number 4. If there are not paragraphs from

22 the brief, then we refer to specific exhibits.

23 As far as the first indicator is concerned, contained in the

24 Appeals judgement, what we are saying is this: Based on the evidence of

25 Prosecution Witness Hogg, based on what he wrote in the article, the

1 Mujahedin operated as gangs, and the Bosnian command wasn't able to

2 control them. Secondly, the Mujahedin failed to heed the Bosnian

3 authorities. Thirdly, the Mujahedin failed to follow any orders coming

4 from officers of the BH army; rather, they followed orders from their own

5 superiors. This is something that Hamad said. That is before the

6 El Mujahid Detachment.

7 During its existence, orders of the command of the BH army, on

8 the resubordination of the El Mujahid Unit, were attempts to place this

9 unit under control; however, the El Mujahedin Detachment did not follow

10 any orders in relation to preparations for combat activity, or in those

11 pertaining to movements to other areas.

12 The El Mujahedin Detachment refused to follow any orders to do

13 with their involvement in the fighting. The El Mujahedin Detachment

14 refused to follow any orders in relation to joint actions with other

15 units. They did not follow any orders in relation to the submission of

16 reports to the commands of the BH army. They refused to allow the

17 commander of the 35th Division and UNPROFOR members to pass through the

18 Donja Blizna area. They were adamant that they should turn away and be

19 sent back. The commander was not informed.

20 The command of the El Mudjahedin Detachment did not submit any

21 orders to the command of the BH army that had to do with the application

22 of the Geneva Conventions. Delic's actions an order to do with the

23 El Mujahedin Detachment fall far short of meeting the requirements for

24 effectively control. That was the first indicator.

25 The second indicator, as of course everything else that we talk

1 about in your brief - and there is no need to repeat that now - the

2 second indicator is how the units in question operated in battle prior to

3 the establishment of the El Mujahedin Detachment. The Mujahedin were

4 acting independently during the actual fighting. The relations between

5 the Mujahedin and the BH army were not those reflecting subordination.

6 Much rather, it was a relationship of cooperation.

7 The Mujahedin were only involved in the fighting when the

8 conditions that they themselves required were met. The Mujahedin were

9 adamant that their commanders should exercise command in battles. The

10 Mujahedin administration, including their military leaders, was

11 submitting reports to al-Qaeda. Again, this is on Hamad's authority.

12 There was a rift between the commands of the BH army, on the one hand,

13 and the Mujahedin, on the other. The Mujahedin tried to kill the

14 commander of the 7th Muslim Brigade -- one of the commanders of the 7th

15 Muslim Brigade. Effendi Karalic.

16 As for when the El Mujahid Detachment was established, it paid

17 scant respect to the BH army, its flag, or its commanders. Members of

18 the detachment did not wear BH army insignia, nor did they carry BH army

19 ID in the fighting. In combat, the detachment was acting independently

20 and was not working with the BH army. The relationship between the two

21 was not a relationship of subordination, but rather one of cooperation.

22 The leadership of the detachment took --

23 JUDGE MOLOTO: May I interrupt, Madam Vidovic. Maybe if you just

24 give us the indicators on the very left column, now that have you given

25 us the paper, we can look through them. I realise that some of the

1 things that you are reading are repeatedly. I mean, the Mujahedin acted

2 independently, on page 2. You said that also on page 3. Maybe you could

3 just give us the left ones.

4 MS. VIDOVIC: [Interpretation] Your Honours, in order for you to

5 understand why there is repetition here, we review the situation as in

6 the indictment, the situation prior to the establishment of the

7 detachment, and then after the establishment of the detachment. That is

8 why it is sometimes the case that an indicator is repeated. We're

9 looking at the situation before the establishment. For example, the

10 Mujahedin were involved in the fighting. Likewise, the El Mujahedin

11 Detachment was operating independently while involved in the fighting, if

12 my understanding is correct. So, hence, the repetition.

13 [Trial Chamber confers]

14 JUDGE MOLOTO: You may proceed. Okay. Proceed the way you are

15 proceeding.

16 MS. VIDOVIC: [Interpretation] Thank you, Your Honours.

17 The leadership of the El Mujahedin took the final decision on

18 whether the detachment would engage in the fighting; therefore, the BH

19 army could in no way rely on their involvement in the fighting.

20 The El Mujahedin set the conditions for their involvement in the

21 fighting. The El Mujahedin Detachment refused to be involved in the

22 fighting. The El Mujahedin did not follow the order of the 35th Division

23 on establishing a command post at a location where they were required to

24 do so; rather, the El Mujahedin Detachment took their own decision on the

25 location of the command post.

1 The El Mujahedin did not follow orders in relation to the way an

2 attack should proceed all the time when it should commence. The

3 El Mujahedin Detachment did not pay any heed to the plans of the

4 35th Division. The El Mujahedin Detachment carried out independent

5 reconnaissance and did not --

6 My apologies, Your Honour.

7 The El Mujahedin Detachment carried out independent

8 reconnaissance and did not submit any reconnaissance reports to the BH

9 army commands.

10 The members of the detachment taunted, threatened, and attacked

11 BH army troops. The detachment did not comply with the security warnings

12 issued by the BH army commands, which resulted in tragic consequences.

13 The El Mujahid Detachment did not allow the 35th Division to take certain

14 areas at the time when it should have been done, and this exposed the

15 units to fire from Serb Montenegrin artillery which caused casualties.

16 The detachment did not designate guides who would take the units

17 to designated areas on time. The detachment seized the war booty from BH

18 army, under threat of weapons, and took the booty to its camp. The

19 detachment did not submit even the basic reports to the BH army commands

20 about the personnel strength and the equipment and materiel at its

21 disposal. The detachment did not submit military reports to what were

22 purportedly its superior commands.

23 The 35th Division never managed to establish contact with the

24 detachment, in terms of security. The detachment never submitted any

25 intelligence or security reports. The detachment did not submit any

1 morale supports --

2 THE INTERPRETER: Interpreter's correction: Reports.

3 MS. VIDOVIC: [Interpretation] The detachment did not submit any

4 reports as to the lines they had reached.

5 And now we move on to the third indicator.

6 JUDGE HARHOFF: Can I just ask you for clarification.

7 When you say that the El Mujahid Detachment did not submit

8 military reports upwards in the system, do you mean to include both

9 written reports and oral reports? So no reporting was made whatsoever,

10 neither in writing nor orally. Is that your point?

11 MS. VIDOVIC: [Interpretation] Yes, Your Honour.

12 I would like to say the following: The BH army does have rules

13 of reporting. You have Exhibit 22. It is the decree on armed forces,

14 and it quite clearly defines the relationship between various commands,

15 the relationship of subordination within the army of Bosnia and

16 Herzegovina; and it is stipulated that the subordinate must report to the

17 superior, and so on, from the bottom to the top.

18 So there is the obligation to report, in accordance with the

19 rules that were put in place by the army.

20 As regards your question about oral reporting, I would like to

21 say the following. Of course, there can be oral reports, but in this

22 case, in this specific case the Honourable Trial Chamber has to make a

23 distinction between arrangements that are put in place, discussions,

24 cooperation, and to define the relationship between two parties after

25 fighting, whether this is cooperation or reporting. Of course, Your

1 Honours, the two parties or the two units cooperating. Let's take a unit

2 from the HVO and a unit from the BH army, this is what General Karavelic

3 talked about in Krajina. Concerted action. Of course those units will

4 keep each other informed about the lines that they reached in combat and

5 about their casualties.

6 This is cooperation, Your Honours. That's not reporting. But,

7 of course, oral reports exist.

8 JUDGE HARHOFF: Thank you.

9 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

10 JUDGE MOLOTO: Does Exhibit 22 prescribe written reports only or

11 does it allow for oral reports?

12 MS. VIDOVIC: [Interpretation] Your Honour, Exhibit 22 defines the

13 rules on reporting. So it does not explicitly say whether it is written

14 or oral reporting, but I would like to refer to some other exhibits here,

15 Your Honour. You will recall, or, rather, I can't now recall the number

16 off the top of my head, but now I'm talking about the documents that

17 refer to the Kakanj command post and General Hadzihasanovic's order about

18 how reports are to be submitted, and he orders the corps commanders to

19 submit written reports. I will obtain this information and I will give

20 you a specific reference as I go along.

21 So now we have come to the third segment, presence of other

22 authorities over the units in question. Your Honours, the Hadzihasanovic

23 and Kubura judgement considered this issue of presence or absence of

24 other authorities over the units in question before the El Mujahedin

25 Detachment was set up --

1 Your Honours, before I move on to this, let me just go back and

2 tell you that the document defining the way in which reporting is to be

3 done is Exhibit 371, and it says the corps command and the unit commands

4 must submit their reports to the Kakanj command post, and when you say

5 "send," it means that they have to be in written form. This is the

6 implication.

7 So before the El Mujahid was established, the Mujahedin were

8 under the control of external bodies, including the al-Qaeda, according

9 to Ali Ahmad Ali Hamad. According to Ali Ahmad Ali Hamad, al-Qaeda

10 organised the arrival of the Mujahedin to Bosnia and decided who would go

11 there to fight and what unit they would join. The BH army did not

12 appoint the leaders of the Mujahedin groups. The Mujahedin sent their

13 reports abroad. According to witness Ali Hamad, they sent them to

14 al-Qaeda. The El Mujahedin Detachment had its own goals, and its own

15 political and military organisation.

16 According to Hamad, the detachment had close links with

17 international terrorist organisations, which inevitably includes

18 al-Qaeda. The El Mujahedin Detachment military commanders, Muatez and

19 Vahidin were members of al-Qaeda, according to Hamad, and they submitted

20 their reports to al-Qaeda. Some El Mujahedin Detachment members were

21 under the direct patronage of foreign intelligence services. The

22 El Mujahedin Detachment had substantial links with some circles in the

23 Republic of Croatia. The El Mujahedin Detachment was financed and

24 supported by some Islamic organisations and by some Arab humanitarian

25 organisations.

1 The El Mujahedin Detachment received large sums of Monday

2 directly or indirectly from officials from Qatar. The El Mujahedin

3 Detachment secured funds for salaries and other monetary remunerations

4 for its members abroad. The Islamic Cultural Centre in Milan and its

5 director Sheik Anwar Saban were de facto authorities over the

6 El Mujahedin Detachment. The El Mujahedin Detachment sent its reports

7 about various problems to Saban. Abu Maali, the EMD commander respected

8 and obeyed Saban who was the actual leader of the EMD. Saban had the

9 power to issue fatwas that were binding for the El Mujahedin Detachment.

10 The El Mujahedin Shura decided about the military organisation of

11 the detachment, including its activities on the front line and elsewhere.

12 The Shura was not responsible to anyone in the BH army, at any command

13 level. The authority of the detachment military commanders stemmed from

14 the powers vested in it by the Emir and the Shura. The Shura decided to

15 set up the detachment and to disband it. The El Mujahedin Detachment

16 enjoyed the support of some representatives, some figures from political

17 and religious authorities in Bosnia and Herzegovina, high-ranking ones.

18 It also enjoyed some support of local politicians from Zenica, Travnik,

19 Zavidovici, and Tesanj.

20 The commander of the 35th Division expected the Zavidovici

21 municipality leadership to solve some problems that related to the EMD.

22 The EMD enjoyed support from some Islamic clerics and had frequent

23 contacts and support of the muftis from Zenica and Travnik, religious

24 leaders, in other words.

25 And this brings me to the fourth indicator, authority to apply

1 disciplinary measures. Your Honours, before the El Mujahedin Detachment

2 was set up, the BH army had no way to replace the Mujahedin commanders.

3 Only the Mujahedin leadership had the ability to actually punish them.

4 The Mujahedin had their own military court in Bosnia and Herzegovina, and

5 al-Qaeda ordered its group to arrest its members. That's what we heard

6 from Hamad.

7 The BH army military police was unable to take any measures

8 against the Mujahedin. The BH army was unable to file any criminal

9 reports against the Mujahedin. The Mujahedin had their own disciplinary

10 system and rules. The El Mujahedin, the information that pertained to

11 the identity of the El Mujahedin Detachment members were not available to

12 the army. The El Mujahedin Detachment did not allow access to its camps.

13 The El Mujahedin Detachment refused to appoint a person who would mediate

14 between the El Mujahedin Detachment and the BH army about security

15 issues.

16 The Shura dealt with all disciplinary issues and imposed

17 disciplinary measures. It was impossible to carry out any inquiry or

18 investigation when it would have to involve members of the El Mujahedin

19 Detachment. The detachment had its own rules about prisoners of war.

20 Even the 3rd Corps commander had to seek permission from the El Mujahid

21 Detachment to be granted access to prisoners of war. The detachment

22 command did not allow its members to be under the authority of the BH

23 army. The Shura did not allow anyone outside of the El Mujahid

24 Detachment to meddle in its affairs.

25 The El Mujahedin Detachment took by force those of its members

1 that had been arrested by the BH army -- the authorities of the Republic

2 of Bosnia and Herzegovina. There is no evidence to indicate that any

3 members of the El Mujahedin Detachment have ever been prosecuted by a

4 military court of the army of Bosnia and Herzegovina during the war.

5 And, finally, Your Honours, we analysed the appeals judgement,

6 the part of the appeal judgement that pertains to other relevant

7 allegations outside of those that were discussed by the Trial Chamber in

8 the Hadzihasanovic/Kubura case.

9 Paragraph 212, before the El Mujahedin Detachment was set up, it

10 was the ECMM who carried out an exchange of the Mujahedin fighters, not

11 the BH army. This was admitted into evidence and tendered by the

12 Defence. This is about Zivko Totic; Awad testified about that. We have

13 paragraph 277 about the El Mujahedin. A member of the BH army arrested

14 by the El Mujahid Detachment was not released been the BH army demanded

15 his release. He was released only after the Travnik mufti, Avdibegovic,

16 intervened.

17 Paragraphs 228 and 230, before and after the establishment of the

18 detachment, regarding the use of force, that's what we have said. It was

19 impossible to use force against the detachment because they were

20 scattered in various villages in Central Bosnia. They enjoyed support of

21 the local population, and that is why to use force against them would

22 mean to open up a third front line, which would, in turn, result in a

23 blood bath.

24 They had their own logistics and they were, in fact, stronger

25 than the corps. This is what Prosecution Witness Awad said: Not only

1 would the use of force be tantamount to conflict with the enemy forces,

2 not forces under one's effective control, but it would also have

3 widespread repercussions for army of Bosnia-Herzegovina itself.

4 And this, Your Honours, brings me to the element of knowledge in

5 Article 7(3) of the Statute.

6 In the allegations of paragraph, 249, 250, and 251 of the

7 Prosecutor's brief, concerning knowledge of the Mujahedin crimes, we

8 provided a detail reply to this in paragraph 303 through 305 of our

9 brief; and in other sections that concern the existence or non-existence

10 of control over varios group, paragraph 265 through 345 of our brief.

11 Your Honours, I'm now going deal with your question 7A.

12 The question rests on the assumption that the accused had reason

13 to know, or, indeed, knew back in 1995, that the El Mujahedin Detachment

14 had committed serious violations of international humanitarian law. Then

15 your question was: Would the fact that one continued to rely on the El

16 Mujahedin's contribution to the war effort, without taking any monetary

17 measures or disciplinary measures against its members, constitute the

18 acceptance the risk that, indeed, this unit might commit further

19 violations of international humanitarian law.

20 Your Honours, the fact that you bore in mind when you posed this

21 question, in actual fact, opens a number of substantial legal questions.

22 First of all, in order to at all be relevant for review in this criminal

23 case, the case against Rasim Delic, it would have to be appropriately

24 pleaded in the indictment, in such a way that the details from which the

25 responsibility of the accused would then stem are described as described

1 and defined by the Chamber in its question.

2 This, Your Honours, is a hard fact. If the indictment rests on

3 this, this is something that should be pleaded in the indictment itself.

4 There are many reasons for that. First of all, it concerns the

5 relationship of subordination. Secondly, it concerns the question of

6 necessary and appropriate measures. Thirdly, it concerns the question of

7 the accused's knowledge under Article 7(3) of the Statute.

8 The jurisprudence of this Tribunal deals with the importance of

9 pleading in a number of rulings. Hard facts that an indictment is based

10 on must be described. And, here, I invoke the jurisprudence in Kupreskic

11 Appeals judgement, paragraphs 888 and 889; next, Furundzija,

12 paragraph 147; next, Krnojelec, Brdjanin, Blaskic Appeals judgements; so

13 on and so forth. All of this having to do with the Article 21 and

14 Article 18 of the Statute in order to make sure that an accused can have

15 a fair trial.

16 I will be invoking the Articles of the Statute, Article 21(4)(b)

17 of the Statute, and 18(4), and 21(4) of the Statute, as well as Rule 47.

18 I'm talking about the Rules of Procedure.

19 Your Honours, you're asking a question about something that

20 wasn't defined in the indictment. It wasn't described in the indictment.

21 If it had been, I would have run this case differently. I would have

22 focussed on challenging such a fact. Needless to say, in our case, the

23 Prosecutor simply failed to plead this fact.

24 Be that as it may, Your Honours, even if they had this single

25 factor reliance on the El Mujahedin's contribution to the war effort, it

1 would still not have constituted a decisive factor, not in relation to

2 the question of there being or not being a relationship of subordination

3 between the accused and the perpetrators; in this case, the detachment.

4 And this would have been manifested through the effective control

5 exercised by the superior officer over his subordinates.

6 The Trial Chamber in Hadzihasanovic case ruled this way and so

7 did the Kubura Chamber. Paragraph 213, they ruled that reliance on a

8 units contribution in the fighting is no argument securing support for

9 the conclusion on the existence of effective control.

10 JUDGE MOLOTO: May I interrupt, Madam Vidovic.

11 the issue here is not effective control. It is really the

12 question whether -- it is reason to know, in brief. Now, if, obviously,

13 reason to know is a factual inquiry, the question is: If you knew - and

14 it is an assumption in the question - if you knew that crimes have been

15 committed by a unit, does your continued use of that unit give you notice

16 that or give you reason to know, and this is quite apart from effective

17 control.

18 And because you're saying it was not pleaded in the indictment,

19 my question to you is: Is it not implied in the reason to know? Isn't

20 that in the factual inquiry that has to be undertaken in addressing the

21 "reason-to-know problem"?

22 In other words, does it have to be pleaded?

23 MS. VIDOVIC: [Interpretation] I understand, Your Honour. I

24 understand your question.

25 It is position of the Defence that an issue like this had to be

1 pleaded in the indictment because of effective control. That is our

2 position, and now I am going to deal exactly with what you are asking,

3 Your Honour.

4 If I look at your question in the overall context of knowledge as

5 defined by Article 7(3) of the Statute, and if we assume that

6 General Delic was aware of violations of international humanitarian law,

7 we're not talking about just any developments now.

8 Let us start out with the assumption that he was aware of what

9 had occurred in Maline on the 8 June 1993. Let's assume he continued to

10 rely on the detachment.

11 Would that constitute an assumption of risk, the risk of further

12 violations? Let me answer this question. Absolutely not, Your Honours.

13 The El Mujahedin Detachment had not even been established by the

14 time this occurred on the 8th June 1993. The order is dated the

15 13th August. I'm sure you remember that. That is what the situation

16 was. The OTP are doing their best to bundle all of the Mujahedin into

17 the detachment, but let me leave that aside for the time being. Let me

18 be specific in relation to the very gist of your question.

19 There is that event. Let us try to leave aside all the

20 additional factors even as they concerned the El Mujahedin Detachment.

21 Between that event that occurred on the 8th of June 1993 and 1995, all

22 the events described in the indictment, we're talking about July and

23 September 1995, a period of about two years had elapsed between the two,

24 Your Honours.

25 There were no reports indicating any violations of international

1 humanitarian law by members of the detachment between its establishment

2 on the 13th of August, 1995 and these events. This is simply too long a

3 period. Besides, the place is now different where the El Mujahedin

4 Detachment was operating, different from the place where the Mujahedin

5 were operating in June 1993. You will remember that, on the one hand, we

6 have the Travnik; and here we have, on the other, the Zavidovici

7 municipality area.

8 I will now invoke paragraph 267 of the Hadzihasanovic --

9 JUDGE MOLOTO: Madam Vidovic, before do you that, can I just

10 sorry to interrupt you.

11 Can we forget the Maline incident for the time being. Let us

12 assume he was aware of violations of war or of laws of war in July 1995

13 and used them in September 1995.

14 Would you address the question now, given that time span and

15 those two incidents.

16 Same question, but we just moving from June 1993. He became

17 aware of the violations in July 1995, and then uses them in

18 September 1995. Still an assumption.

19 MS. VIDOVIC: [Interpretation] Indeed, Your Honour. Let me answer

20 in the following way: The issue of knowledge, as, indeed, any other

21 element of Article 7(3) of the Statute, must be assessed within the

22 framework of each accused's actual situation. Given that, we would need

23 to deal with the actual situation of the accused: What was he doing at

24 the time? Did he know? Did he not know?

25 JUDGE MOLOTO: Madam Vidovic, this question is an assumption.

1 The assumption is he knew. I'm not saying it a fact.

2 MS. VIDOVIC: [Interpretation] Indeed, I understand.

3 Again, I would like to tell you this, Your Honour. Assuming

4 there are several months between the two points in time, we're looking at

5 a period over which certain isolated occurred, our position is that this

6 would not in itself constitute knowledge.

7 At any rate, I think the question, the way it was phrased, is

8 this: Each of the actual situations encountered by an accused must be

9 assessed individually: Did he know? Did he not know? If so, again,

10 this falls under a time-period that was earlier on, which in no way

11 implies that the accused was consistently violating the provisions of

12 international humanitarian law.

13 Please allow me just to finish one thing that I was trying to

14 say.

15 Why is this our position of Rasim Delic's Defence. I am

16 invoking --

17 JUDGE LATTANZI: [Interpretation] Madam Vidovic, your conclusion

18 is that the fact of knowing, in 1993, that crimes had been committed by

19 the Mujahedin did not represent a risk, such that General Delic would

20 have taken; that is, as regards future combat, that would have taken

21 place in 1994, for example, or in this particular case, in July and

22 September 1994 [as interpreted].

23 MS. VIDOVIC: [Interpretation] Indeed, Your Honour. This is not

24 just my conclusion. This is indicated by the jurisprudence of this

25 Tribunal. This was the position last taken in paragraph 267 of the

1 Hadzihasanovic Appeals judgement. The Appeals Chamber noted, while

2 ruling on the issue of Kubura's knowledge, based on his earlier omissions

3 to punish crimes by his subordinates, I quote: "Acts of robbery carried

4 out by Kubura`s subordinates at Omnak [phoen] on the 9th of June, 1993,

5 and in Vares on the 4th of November 1993, are about five months and about

6 40 kilometres apart."

7 That is what led them to conclude, in paragraph 269, that his

8 knowledge of past crimes and his omission to punish them in itself was

9 not sufficient to constitute any real knowledge on the part of the

10 accused in relation to events for which he stood indicted.

11 In the Delic case, we have the following situation: This was an

12 isolated occurrence in relation to some Mujahedin back in 1993 - and that

13 was the gist of your question, Your Honour - in a different area,

14 57 kilometres away; the distance in time being equally great. The

15 Hadzihasanovic ruling talks about five months and 40 kilometres; and,

16 here, we have a situation where the events were two years apart, the

17 geographical distance being 57 kilometres.

18 Our position is this: Even if he had known about this fact that

19 you cite, it still doesn't mean he would have taken the risk or accepted

20 the risk that this unit might commit further violations.

21 Now about the alleged history of the likelihood that this unit

22 might commit crimes. We rely to this in paragraphs 484 to 515 in 1109,

23 1110, and 710 through 746 of our final brief.

24 We provided detailed explanation, and, Your Honours, I will be

25 dealing more with the issue of knowledge.

1 [Trial Chamber confers]

2 MS. VIDOVIC: [Interpretation] We provided a detailed explanation

3 in relation to bulletins, their distribution, and the fact that in the

4 absence of General Delic these were distributed to persons who stood in

5 for him or represented him. I won't be repeating that.

6 As regards the requirement that the accused had to know, and now

7 I'm talking about the event on the 21st of July, 1995, the Prosecution is

8 trying to prove that there was imputed knowledge and here the Prosecution

9 relies on the information that on the 22nd of July, 1995, in the bulletin

10 that was sent to Kakanj, it was stated that the El Mujahedin Detachment

11 captured, only captured, nothing else, 50 prisoners. Be that as it may,

12 in paragraphs 557 through 570, we explained in detail why this

13 information was not at the disposal of General Delic because at that time

14 he was participating in talks in Croatia, in Split, and he did not go to

15 Kakanj before the 29th of July, 1995. Witness Berbic was quite

16 determined when he said that bulletins did not wait for General Delic to

17 arrive but were handed into Hadzihasanovic in his absence.

18 On the 14th of September, 2007, Berbic makes the following

19 comment on the statement he had given to an OTP investigator.

20 "Do you recall having said that you submitted bulletins

21 personally to the Chief of Staff, of course in situations when

22 General Delic was absent?"

23 And he says: "As far as I can recall, I said that in his absence

24 I would hand over the bulletin to the Chief of Staff or the highest

25 ranking officer within the administration."

1 Yesterday you heard from the Prosecution, Your Honours, that

2 Berbic's testimony is irrelevant in light of the bulletins that were

3 submitted through Exhibit 377, because, at that time when the bulletins

4 arrived, Berbic was not in Kakanj at all. But this is not true,

5 Your Honours, because as a member of the military security service,

6 Berbic was in Kakanj from 1994. It is quite strange to hear the

7 Prosecution say that Berbic's testimony is irrelevant, when the

8 Prosecution called Berbic to come here to testify about those documents,

9 and Exhibit 377 was admitted into evidence through him. Again, they

10 don't like the actual outcome of his testimony, and now they claim that

11 it is irrelevant.

12 It is in fact quite relevant, because Mr. Berbic, as a member of

13 the military security service, worked in Kakanj from July 1994 onwards

14 and he was the head of the Kakanj military security service, and he knew

15 quite well how the military security service functioned and what the

16 procedure was for the submission of those bulletins.

17 The first report about the prisoners of war taken in July was

18 submitted by the military security service of the 35th Division to the

19 military security service of the 3rd Corps on the 22nd of July, 1995.

20 That's Exhibit 553, Your Honours.

21 The Prosecution, therefore, cannot rely on the fact that it is

22 stated in Exhibit 364 that Delic had visited the 3rd Corps command on or

23 around the 21st of July, and on the basis of that, they conclude that

24 information was at his disposal.

25 Your Honours, this document bears the date of the 21st of July,

1 which means that on the 22nd of July, General Delic could not have been

2 there, because there has been so much evidence to prove that both on the

3 22nd and on the 23rd of July, General Delic was in Split. Fortunately

4 for him, he was attending the Split Conference which was quite a public

5 affair. So he was not there, not until the end of July. This is

6 something that you heard about.

7 What the Prosecution wants you to do regarding the issue of

8 knowledge of those events, is to assume that this information was

9 available to Rasim Delic. That is not in accordance with the law, and

10 this is not a view accepted in the Tribunal's jurisprudence.

11 The same thing goes for the knowledge requirement in

12 Operation Farz. They claim that Delic did have information at his

13 disposal about the capture and crimes committed against the prisoners of

14 war and civilians in September 1995. To prove that Rasim Delic did have

15 access to the information about prisoners of war, the Prosecution relies

16 on the fact listed in paragraphs 379, 380, and 381 of its final brief,

17 where it is alleged that this information was widely known in the

18 3rd Corps although this has not been proven. They rely even on rumours

19 that were never confirmed as to their accuracy and this is what witnesses

20 from the 3rd Corps told us.

21 The Prosecution tries to construct the whole story and then, it

22 says, Rasim Delic himself admitted that he controlled -- that he

23 exercised control over this action. This is based on a report by a

24 journalist. Rasim Delic was in constant contact with the 3rd Corps from

25 Malaysia, in particular on the 14th of September, and therefore,

1 according to the Prosecution, he did have this information at his

2 disposal because of those contacts.

3 If a conclusion were to be drawn about General Delic's knowledge,

4 on the basis of those facts as is required by Article 7(3) of the

5 Statute, that would be a clear-cut error in law. In the Celebici case

6 the Appeals Chamber found as follows. This is paragraph 239: "Finally,

7 the relevant information only needs to have been provided or available to

8 the superior, or, in the Trial Chamber's words, in the possession of. It

9 is not required that he actually acquainted himself with the

10 information ..."

11 Your Honours, jurisprudence, in all cases, does not dictate that

12 the accused must acquaint himself with something, except in a situation

13 where he has at his disposal clear information about a serious and clear

14 danger that a crime would be committed or that the perpetrators are about

15 to commit a crime that is charged in the indictment. That is his

16 obligation. It is not his obligation as the Prosecution puts it here and

17 this is what this judgement and many other judgements made quite clear.

18 So he didn't have to actually acquaint himself with the

19 information. In the Appeals Chamber's view, an assessment of the mental

20 element required by Article 7(3) of the Statute should be conducted in

21 the specific circumstances of each case, taking into account the specific

22 situation of the superior concerned at the time in question. Thus, as

23 correctly held by the Trial Chamber, as the element of knowledge has to

24 be proved in these type of cases, command responsibility is not a form of

25 strict liability. A superior may only be held liable for the acts of his

1 subordinates if it is shown that he knew or had reason to know about

2 them. "The Appeals Chamber would not describe superior responsibility as

3 a vicarious liability doctrine in so far as vicarious liability may

4 suggest a form of strict imputed liability."

5 So this is paragraph 239 of the appeals judgement in the Celebici

6 case.

7 The same view was taken in the Appeals Chamber judgement in

8 Blaskic case, paragraph 62. Finally, it is clear from the Prosecution

9 brief that it is trying to impose on the accused liability in accordance

10 with the concept of the so-called strict liability. It is quite clear,

11 particularly from paragraph 384 of its brief, where they describe how

12 Jasarevic, the chief of the military security service administration,

13 received E-669. It was the intercepted fax that speaks about the 60

14 prisoners, and then that Jasarevic was one of Delic's immediate

15 subordinates with whom he was in direct contact and their conclusion is

16 this. It is simply incredible. It would be impossible to believe that

17 he failed to relay this kind of information to him.

18 But, Your Honours it is not up to the Prosecution to say what is

19 credible, probable or improbable but to prove that Delic was in the

20 possession of this information, that it was available to him, and the

21 Prosecution has failed to prove that, and I will tell you why.

22 In this case, and General Delic is quite fortunate that this is

23 the case, we have a protocol of the military security service

24 administration of the BH army General Staff - that's Exhibit E-1306 -

25 which clearly shows the movement of a document through the chain of

1 command, when it was received, and where it was forwarded.

2 The protocol of the -- or the log-book of the BH army General

3 Staff military security service shows quite clearly where the documents

4 were forwarded. That's E-669, dated the 16th September 1995, that the

5 Prosecution is referring to. You can see that this was distributed or,

6 rather, put in the Vranduk file; whereas, the E-709, dated 22nd October,

7 1995, was sent to the Ministry of Defence, and to the state security

8 service of the Republic of Bosnia and Herzegovina. They were not sent or

9 forwarded to General Delic.

10 Mr. Mundis, yesterday, referred to evidence by witness Vuckovic

11 who said, in his 92 ter statement, the highest level should receive a

12 report about this, either on that day or the next day, so either on the

13 16th or on the 17th of September, 1995.

14 But what the Prosecution has neglected to mention is that this

15 witness, when asked a follow-up question about this document - so it

16 wasn't me asking those questions, it was the Prosecution asking questions

17 about this document - the witness was quite clear in his answer during

18 the examination-in-chief on the 7th of November: "I decided, in fact,

19 that a summary of this document should make part of the bulletin, in

20 brackets, for the agreement. This means that the analyst who was to

21 receive this document should come to me to get instructions.

22 "Be that as it may, it is quite obvious that this report was not

23 made part of the next bulletin because I crossed it out, probably after

24 consulting Colonel Popovic, who was the chief of the counter-intelligence

25 section, or perhaps even consulting General Jasarevic."

1 This is what the witness said when the Prosecutor asked the

2 follow-up question. The Prosecution always does this. They take a small

3 segment of a witness's testimony, and then he uses -- they use this to

4 paint the picture, not the whole of the testimony. But at any rate, this

5 is the 16th and 17th of September, 1993 [as interpreted]. You will

6 remember that, at the time when this information came to the military

7 security service, General Delic was not in Sarajevo at all.

8 [Trial Chamber confers]

9 MS. VIDOVIC: [Interpretation] Your Honours, I have to apologise.

10 I apparently misspoke. I misspoke. I said, when this information was

11 received in 1993, and I'm actually talking about 1995, September 1995.

12 16th and 17th of September, 1995. At that time, Delic was not in

13 Sarajevo, and both documents and Witness Dedovic confirmed that.

14 You will recall that on the 16th - I think it was on the 16th or

15 maybe on the 17th - he came back from Malaysia, and then he remained in

16 Croatia and was busy with the negotiations in Croatia. After that, he

17 dealt with the fighting in Bosnian Krajina.

18 The most important thing here, in this whole issue related to the

19 knowledge of the accused, you saw clear evidence that the highest-ranking

20 people in the military security service administration usually ordered

21 the information about the El Mujahedin Detachment to be kept within the

22 military security service. You will recall the two documents, E-66 and

23 E-784, where there were handwritten instructions: This information is

24 not to go outside of the military security service.

25 So this is the situation that General Delic faced; and in such a

1 situation, it is not realistic to speak about the probability that the

2 information may have been relayed or, as Mr. Mundis said to you

3 yesterday, General Delic had this information at his disposal if the

4 information was at the disposal of the military security service.

5 The military security service had its chief. You heard testimony

6 from Mr. Vuckovic that he was the one who decided what information to

7 forward. So you saw documents that quite clearly say keep information

8 about El Mujahedin Detachment within the military security service.

9 So what kind of reality are we talking about? How could one even

10 think that this might have been at the disposal of General Delic? And

11 the Prosecution had those documents, in particular if you have a

12 situation where General Delic is preoccupied by completely different

13 matters.

14 Again, Your Honours, it is quite obvious that the Prosecution is

15 trying to impose this responsibility based on the concept of strict

16 liability, and we can see that from paragraph 378, where there is this

17 description, indicating that the information that pertained to the

18 capture of prisoners of war was published in two publications of the BH

19 army in October 1995. On the basis of this, the Prosecution is putting

20 to us that General Delic had information at his disposal that led to his

21 knowledge that the El Mujahid Detachment had subjected prisoners of war

22 to cruel treatment and murder, on the basis of nothing more or nothing

23 less on the basis of the fact that it is stated in those publications

24 that the detachment had captured several VRS officers. Even if such

25 information had been received in and of itself, it would have meant

1 nothing in October 1995.

2 So, throughout this trial, the Prosecution is claiming that it is

3 tantamount that if the information was at the disposal of the accused,

4 that this is tantamount to him know being this mistreatment.

5 JUDGE LATTANZI: [Interpretation] Madam Vidovic, please tell me

6 the following: You are saying that General Delic knew or are you saying

7 that he had reasons to know? So are you trying to contest both?

8 MS. VIDOVIC: [Interpretation] Your Honour, I categorically

9 challenge the fact that he had reason to know. What I'm trying to

10 explain is this: General Delic was away from Sarajevo. When the

11 information came in, he was most certainly not in Sarajevo. He had no

12 reason to know. This information was not available to him, as simple as

13 that.

14 Secondly, I tried to explain that information was kept within the

15 military security service, the instructions being very specific: Do not

16 forward. How, then, could he have possibly have known? I challenge

17 both: Him having reason to know or him knowing.

18 Now on to something that has to do with your question. According

19 to the Prosecution, the accused has inquiry notice on a crime even if

20 potentially he is in a position to access information indicating that a

21 crime has been committed. According to them, being privy to information

22 includes a subordinate being privy to information with no evidence that a

23 subordinate really forwarded the information to the accused.

24 This notion, the accused must have known, instead of should have

25 known, the Prosecutor wants you to conclude must have known. This is a

1 notion that was applied in the Yamashita case, but the situation was

2 entirely different. In the Yamashita case, the crimes were widespread,

3 extensive, both in terms of territory and in terms of time. That's why

4 the conclusion was reached that the accused must have known.

5 Nonetheless, this notion was changed in the -- in the USA versus

6 von Leeb case, where instead of the requirement of strict responsibility,

7 we see conscious neglect of duty applied to this high command. The

8 Additional Protocol I of the Geneva Conventions refutes this standard, as

9 well as the UN Commission For War Crimes. The same applies to all the

10 judgements of this Tribunal so far. Therefore, the OTP can in no way

11 require that you apply this standard. It is our position that the

12 Prosecutor has failed to show knowledge under Article 7(3) of the

13 Statute.

14 Your Honours, I have very, very little left, a few words.

15 As to necessary and reasonable measures to prevent or punish, we

16 explained this in section 8, B, 5, and there is no reason for me to go

17 back to that. I will just respond to your question 7b, because this is

18 something that I omitted to do so far.

19 Your question was: Would the request by the 3rd Corps to launch

20 an investigation to a civilian and military prosecutor have met the

21 requirement for the accused to have taken the necessary and appropriate

22 measures to punish the perpetrators?

23 Your Honour, again, I must invoke the Tribunal's jurisprudence,

24 in terms of the accused performing his duty in terms of preventing or

25 punishing. Each case must be assessed on an individual basis.

1 The Appeals Chamber in Hadzihasanovic/Kubura case, paragraph 151,

2 confirms: What constitutes reasonable and necessary measures is not a

3 matter of law, it is a matter of proof.

4 In that case, as in the Blaskic case, paragraph 72, the Trial

5 Chamber found that a commander could still meet the requirement of

6 punishing by informing appropriate authorities. Our position is well

7 known. The request by the corps commander to -- a request by the corps

8 commander to a civilian military prosecutor would have met that

9 requirement.

10 In the Hadzihasanovic case, the Trial Chamber found that the

11 commander of the 3rd Corps met this requirement by filing a criminal

12 report with the municipal public prosecutor in Bugojno. That's

13 paragraph 154 of the Hadzihasanovic appeals judgement.

14 Finally, Your Honours, I wish to conclude with another example

15 from the jurisprudence of this Tribunal, as it concerns general

16 principles established in relation to circumstantial evidence which the

17 OTP base their case on.

18 Hadzihasanovic Appeals judgement, paragraph 286. The Appeals

19 Chamber notes that this standard is in keeping with the general

20 principles established in the practice in relation to circumstantial

21 evidence. More specifically, a case based on circumstantial evidence is

22 made up of different kinds of evidence on different circumstances. Taken

23 together, they point to the accused's guilt because, if combined, they

24 could only exist because the accused actually committed the crimes that

25 he stands indicted for.

1 Such a conclusion must be established beyond a reasonable doubt.

2 It is not sufficient that a mere reasonable conclusion be drawn from such

3 evidence. This has to be the only reasonable conclusion available at

4 all. The only reasonable conclusion available at all. As long as there

5 is any other conclusion that is equally reasonable and available to the

6 Trial Chamber, and that also happens to be consistent with an accused's

7 innocence, this accused must then be acquitted.

8 Thank you very much, Your Honours.

9 My learned friend, Mr. Robson, will be addressing you with a

10 remainder of our closing argument tomorrow.

11 Thank you.

12 JUDGE MOLOTO: Thank you very much. The Chamber will adjourn

13 until 9.00 tomorrow morning, same courtroom.

14 Court adjourned.

15 --- Whereupon the hearing adjourned at 1.49 p.m.,

16 to be reconvened on Wednesday, the 11th day of

17 June, 2008, at 9.00 a.m.

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